Gauhati High Court
Crl.A./70/2020 on 8 January, 2025
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
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GAHC010309842019
2025:GAU-AS:282
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Crl.A. No. 70/2020
Sri Shabilal Chetry,
S/O Late Mon Bahadur Chetry,
Resident of Village-9th Mile, Manja,
P.S. Diphu, District-Karbi Anglong, Assam.
.....Appellant
-Versus-
The State of Assam
Represented by PP, Assam.
......Respondent
For Appellant : Mr. K. Das, Advocate.
For Respondent : Ms. S. Jahan, Public Prosecutor, Assam.
Date of Hearing : 25.11.2024
Date of Judgment : 08.01.2025
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BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT AND ORDER (CAV)
(MRIDUL KUMAR KALITA, J)
1. Heard Mr. K. Das, learned counsel for the appellant. Also heard
Ms. S. Jahan, learned Additional Public Prosecutor appearing for
the State of Assam.
2. This criminal appeal has been registered on filing of a memo of
appeal under Section 374 (2) of the Code of Criminal Procedure,
1973, by the appellant Sri Shabilal Chetry, who is presently
serving out his sentence in Jail.
3. In this appeal, the appellant has impugned the judgment and
order dated 22.10.2019 passed by the Court of learned Sessions
Judge, Diphu, Karbi-Anglong in the Sessions Case No. 56/1991,
whereby, the appellant was convicted under Section 302 of the
Indian Penal Code and was sentenced to undergo rigorous
imprisonment for life and to pay a fine of Rs.2000/- and in
default of payment of fine to undergo further simple
imprisonment for 2(two) months.
4. The facts relevant for consideration of the instant appeal, in
brief, are as follows: –
i. That, on 28.11.1989, one Sri Karna Bahadur Chetry had
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Outpost, inter alia, alleging that on that day, at about
5:30 PM, Sri Shabilal Chetry(the appellant) had grievously
injured one Ganesh Thapa by stabbing him in his stomach
with a Khukri, (a type of machete)without any reason.
ii. On receipt of the aforesaid FIR, the In-Charge of Manja
Police Outpost made a G.D. Entry No. 476 dated
27.11.1989 and forwarded the same to the Officer-In-
Charge of Diphu Police Station for registering a case.
Accordingly, Diphu P.S. Case No. 278/89 was registered
under Section 326 of the Indian Penal Code. As the
injured Ganesh Thapa later on died in the Diphu Civil
Hospital, a prayer was made to the Court for adding
Section 302 of the Indian Penal Code in this case, which
was allowed.
iii. On completion of the investigation, the charge sheet was
laid under Section 302 of the Indian Penal Code against
the appellant Sri Shabilal Chetry. Though, the appellant
was arrested during the course of the investigation,
however, he was later on granted bail and he faced the
trial remaining on bail.
iv. Initially, on 21.02.1992, the charge under Section 304 of
the Indian Penal Code was framed against the appellant,
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however, later on, on 03.10.2019, the charge was altered
to Section 302 of the Indian Penal Code. The said charge
was read over and explained to the appellant, to which he
pleaded not guilty and claimed to be tried. In the
meanwhile, the prosecution side had already examined its
witnesses and it declined to re-examine them after
alteration of the charges from 304 to 302 of the Indian
Penal Code. Similarly, the defence side also declined to
recall the witnesses for re-cross-examination after
alteration of charges.
v. To bring home the charges against the appellant, the
prosecution side examined as many as 10(ten)
prosecution witnesses. The appellant was examined under
Section 313 of the Code of Criminal Procedure, 1973,
during which he denied the truthfulness of the testimony
of the prosecution witnesses and pleaded his innocence.
However, he declined to adduce any evidence in defence.
Ultimately, by the judgment and order, which is impugned
in this appeal, the appellant was convicted and sentenced
in the manner as already described in paragraph No.3
hereinabove.
5. Before considering the rival submissions made by the learned
counsel for both the sides, let us go through the evidence which
is available on record.
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6. PW-1, Sri Krishnabandhu Giri, has deposed that on the day of
occurrence, while he was taking rest, the deceased Ganesh
came near his house and fell down. He was crying and was
injured in his stomach. PW-1 has deposed that on his inquiry,
Ganesh told him that Shabilal Chetry, (appellant), stabbed him
in the stomach. PW-1 has also deposed that Ganesh was sent
to hospital at Manja for treatment and he also saw that the
appellant was caught by the people and was taken to the police
station.
7. During his cross-examination, PW-1 has deposed that he had
not seen the appellant stabbing the deceased. Certain
suggestions were made to him by the learned defence counsel,
which were all denied by him.
8. PW-2, Rishi Bahadur Chetry, has deposed that on the date of
incident, he was milking cow and at that time he heard about
the killing of man. He has further deposed that he came out of
his home and proceeded to the place of occurrence on the main
road where he saw Ganesh Thapa lying with injury on his belly.
He has also deposed that many people gathered there and
thereafter, he took Ganesh Thapa to the police station and
thereafter, to Manja Hospital. He has also deposed that doctor
gave first aid to Ganesh Thapa and referred him to Diphu
Hospital. He has also deposed that on the way to Diphu
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Hospital, Ganesh Thapa was senseless and he did not name
anyone. He has also deposed that after about four days,
Ganesh Thapa died in the hospital. He also proved the Inquest
Report and his signatures thereon as an inquest witness.
9. During cross-examination, PW-2 has deposed that the place of
occurrence is at a distance of more than one furlong
(approximately 201 meters). He has also deposed that when he
arrived at the place of occurrence, he saw many people (about
20 people) assembled there.
10. PW-3, Mon Bahadur Chetry, has deposed that on the date of
incident, at about 6:00 PM, when he was on his way back to
home from Bazaar, he saw Ganesh Bahadur lying on the road
with injury. He has also deposed that later on, his son Rishi
Bahadur took Ganesh to the hospital. He has also deposed that
Khukri was recovered from a distance from the place of
occurrence and police seized it. He proved the seizure list and
his signatures thereon as a seizure witness.
11. During cross-examination, the PW-3 has deposed that the
Khukri was recovered at a distance of about one furlong from
the place of occurrence.
12. PW-4, Smt. Meena Devi Chetry, has deposed that on the date of
incident at about 6:00 PM, when she was in her home with her
children, Ganesh Lama came to her residence with injury and
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lay down there. She has also deposed that inquired Ganesh told
that Shabilal cut him. On this, PW-4 started shouting and
people of the locality assembled. She has also deposed that
public apprehended Shabilal and took him to police station and
injured Ganesh Lama was taken to hospital. She has also
deposed that Bal Bahadur and her husband (Late Karna
Bahadur Chetry) were present at that time. She has also
deposed that after five days, Ganesh passed away in the
hospital.
13. During cross-examination, she has deposed that she has not
seen the incident herself. She has also deposed that Nara
Bahadur and Dal Bahadur were present there and no one else
was there. She has deposed that Nara Bahadur and Dal
Bahadur heard the statement of Ganesh. She has also deposed
that her husband asked Ganesh Bahadur about the incident.
14. PW-5, Shri Chitta Bahadur Chetry, who is the younger brother
of the appellant, is only a hearsay witness and he has deposed
that he came to know about the incident from the public.
15. PW-6, Dr. L. C. Nath, who conducted the post-mortem
examination on the dead body of deceased Ganesh Thapa, has
deposed that on 2nd December 1989, he was posted as Medical
and Health Officer No. 1 at Diphu Civil Hospital. He has deposed
that on that day, post-mortem examination of deceased Ganesh
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Thapa was conducted in connection with Diphu P.S. case No.
278/89. He has deposed that on examination of the dead body
of Ganesh Thapa, he found following: –
”
(1) A male post operated dead body with rigor
mortis present, the stitches present on the
exterior abdominal wall and left side of the
thoracic wall. The eyes are closed and
abrasion present on right side of the waist.
(2) Cranium and spinal cord-All are normal and no
any deformity detected.
(3) Thorax- The seventh and eight ribs of the left
side of the thorax are broken due to sharp
cut.Repaired left thoracic wall present.
Diaphragm is cut on the left side and repaired.
Pleurae of the left side of thoracic was
lacerated. Larynx and trachea and right lung
normal. Left lung-cut wound present on the
lower part of left lobe. Pericardium heart –
normal.
(4) Abdomen-On interior abdominal wall, stitch
post operative was present and two stab
wound present with drainage tube.
Peritoneum-Sutured material present with old
clotted blood present. Mouth pharynx
oesophagus normal. Stomach empty. Small
intestine full of intestinal fluid. Large intestine
full faecal matter.
(5) Muscle, bones and joints-Injuries are already
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described above. Abdomen-Liver left lobe of
liver is repaired due to cut injury. Spleen,
kidneys, bladder, organ of generation-
normal.”
16. PW-6 has deposed that in his opinion, the actual cause of death
is due to hemorrhage and shock as a result of injuries to the
vital organs like liver and lung.
17. During cross-examination, PW-6 has deposed that he conducted
the post-mortem examination at the hospital morgue with the
help of sweeper and he prepared his post-mortem examination
report by copying from the notes prepared at the time of
examination.
18. PW-7, Sushil Nath, who is the eye-witness, has deposed that on
the day of occurrence, he was going to Manja Bazaar, along
with Kalia and Ganesh Thapa (deceased) to have some
refreshment. He has deposed that Shabilal (appellant) and
another person followed them and when they reached near
Karna Bahadur’s residence, Ganesh Thapa went nearby to
urinate and they were standing nearby. PW-7 has deposed that
Ganesh Thapa was attacked by the appellant after some
altercation and he was stabbed with a Khukri. Thereafter, he
was taken to Karna Bahadur’s residence. PW-7 has also
deposed that they tried to caught hold of the appellant.
However, he fled away from there. He has also deposed that
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Ganesh Thapa thereafter went to Krishna Bahadur’s residence
from where he was taken to Manja PHC and police was also
informed. Later on, the appellant was apprehended. However,
another person accompanying him was not found. He has
deposed that the police seized the Khukri.
19. During cross-examination, PW-7 has deposed that Kalia and
Ganesh Thapa were with him. He has also deposed that
appellant Shabilal was accompanied by another boy whom he
could not recognize. He also deposed that Ganesh Bahadur was
urinating about 15 meters away and it was a dark night. He has
also deposed that he did see who stabbed Ganesh Bahadur (it is
pertinent to note that in the original deposition form, the word
appearing after the word “did” in this sentence has been cut
with no identifying initials of the person responsible for doing
so). He also deposed that Mon Bahadur and his son and about
10 to 12 people assembled there.
20. PW-8, Sri Vivekananda Das, has deposed that on 28.11.1989,
he was posted as In-Charge of Manja Outpost and on that day,
one Dil Bahadur Chetry informed verbally at about 6:00 PM that
one Shabilal Chetry, (appellant) had injured Ganesh Thapa by a
Khukri. Accordingly, he made G.D. Entry No. 474 dated
28.11.1989 and rushed to the place of occurrence with other
police staff. On reaching the place of occurrence, they found
that the appellant was caught by the villagers and accordingly,
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he was arrested. PW-8 has further deposed that the appellant
had stated that he attacked and injured Ganesh Thapa with a
Khukri and the wooden handle of the Khukri was in the hand of
the appellant. PW-8 has also deposed that as stated by the
appellant, the handle-less Khukri was recovered from the jungle
near the place of occurrence and thereafter, it was seized. PW-8
has proved the seizure list as Exhibit-2 as well as his signatures
thereon as Exhibit 2 (2). He also proved the Khukri as Material
Exhibit-1. He has further deposed that thereafter formal FIR
was lodged by Karna Bahadur Chetry as the incident took place
in front of his residence. He has further deposed that on
03.12.1989, the Officer-In-Charge of Diphu P.S. informed that
the victim Ganesh Thapa died in the Diphu Civil Hospital.
Accordingly, he made prayer for adding Section 302 of the
Indian Penal Code in the said case which was allowed. He has
further deposed that on completion of the investigation, he
found evidence against the appellant Shabilal Chetry, and
accordingly, he laid the charge sheet under Section 302 of the
Indian Penal Code.
21. During cross-examination, PW-8 has deposed that he did not
record the statement of the first informant. He has also
deposed that no prayer was made for recording the dying
declaration. He has also deposed that he did not seize the
wooden handle of the Khukri which was found in the hand of
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the appellant. He has further deposed that no signature of the
seizure witnesses was taken on the wrapper of the Material
Exhibit. He answered in the negative to the suggestive
questions put to him by the learned defence counsel.
22. PW-9, Sri Prashanta Phukon, has deposed that on 02.12.989,
he was at Diphu Police Station and he conducted the inquest of
the dead body of Ganesh Thapa in presence of witnesses. He
found injury on the belly of the victim, with T-shaped stitch of
operation. He also found wound on the waist of the deceased.
PW-9 had also proved the Inquest Report as well as his
signatures thereon.
23. During cross-examination, PW-9 has deposed that he examined
the witnesses at Diphu Civil Hospital premises. He has also
deposed that the victim was admitted in the Hospital from
28.11.1989 to 02.12.1989.
24. PW-10, Sri Ram Bahadur Chetry, is a hearsay witness who
learned about the incident from others, therefore, his testimony
is not of much relevance.
25. During his examination under Section 313 of the Code of
Criminal Procedure, 1973, the appellant had denied the
truthfulness of the testimony of prosecution witnesses and had
pleaded his innocence. However, he did not adduce any
defense evidence.
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26. Mr. K. Das, the learned counsel for the appellant, has submitted
that the learned Trial Court had erred in coming to the
conclusion of the guilt of the appellant on the basis of the
contradictory evidence on record.
27. The learned counsel for the appellant has submitted that the
learned Trial Court mainly relied on the testimony of PW-1 and
PW-4 wherein, they had deposed that the deceased had made
dying declaration before them, implicating the appellant as
having stabbed him.
28. The learned counsel for the appellant has submitted that
though the PW-1 has deposed that the deceased came crying
and fell down near his house, however, PW-4 has deposed that
deceased lie down in her premises. This contradiction was
ignored by the learned Trial Court before relying on the
testimony of PW-1 and PW-4, which according to the learned
counsel for the appellant was not the correct approach and it
erred in relying on the testimony of said witnesses in spite of
material contradiction in their testimonies.
29. He also submits that the learned Trial Court also ignored the
fact that the PW-4 has deposed that only Bal Bahadur and her
husband (Karna Bahadur Chetry) were present at the place of
occurrence, whereas during her cross-examination, she had
deposed that Nara Bahadur and Dal Bahadur were present at
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the place of occurrence and none other. She has not mentioned
about the presence of PW-1 or PW-7, who is reported to be the
eye-witness. The learned counsel for the appellant has also
submitted that the evidence of PW-2, namely, Rishi Bahadur
Chetry shows that it was he, who took the deceased Ganesh
Thapa to the police station and to the hospital, however,
Ganesh Thapa did not make any dying declaration before him
implicating the present appellant, therefore, he submits that the
evidence of PW-1 and PW-4 to the effect that the deceased
made dying declaration before them is not believable.
30. The learned counsel for the appellant has also submitted that
though the deceased Ganesh Thapa was admitted in the
hospital on 28.11.1989 and he expired on 02.12.1989, however,
no step was taken by the Investigating Officer for recording the
dying declaration through the Magistrate or through a doctor,
when the deceased was admitted in the hospital. The learned
counsel for the appellant has also submitted that there is
nothing on record to suggest as to what was the mental
condition or the mind of the deceased when he made oral dying
declaration before PW-1 and PW-4. He submits that before
relying on such oral dying declaration, the Court must be
satisfied that at the time of making such a statement, the
deceased was in a fit state of mind. In support of his
submission, the learned counsel for the appellant has cited a
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ruling of the Apex Court in the case of Manjunath & Ors. Vs.
State of Karnataka reported in (2023) 14 S.C.R. 727.
31. The learned counsel for the appellant has also submitted that so
far as the testimony of PW-7 is concerned, even the learned
Trial Court did not regard the said evidence as the main
evidence and has used the same only for corroborative purpose
to corroborate the testimony of PW-1 and PW-4. He submits
that though the PW-7 has claimed to be an eye-witness to the
incident of assault, however, PW-1 and PW-4 have not stated
anything about his presence at the place of occurrence. The
learned counsel for the appellant also submits that PW-7 has
deposed that he was accompanied by one “Kalia,” however, the
said Kalia has not been examined as prosecution witness by the
prosecution side, casting doubt on the credibility of the
testimony of PW-7.
32. The learned counsel for the appellant has also submitted that
though there is a cut of the word appearing after the word ‘did’
in the testimony of PW-7, however, the learned Trial Court in
the paragraph No. 21 of the impugned judgment has recorded
that the PW-7 has stated in his cross-examination that he did
not see, who stabbed the deceased and the fateful night was a
dark night. So, the learned counsel for the appellant has
submitted that in view of the categorical statement by the PW-7
during his cross-examination that he did not see as to who
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stabbed the deceased, he could not have been regarded as an
eye-witness and his testimony cannot be relied upon to come to
the conclusion of guilt of the appellant.
33. The learned counsel for the appellant has also submitted that
the testimony of PW-7 shows that the appellant was
accompanied by another person which the learned Trial Court,
after perusal of the Case Diary, found to be one Lakhimi Rai and
he was neither examined as a witness nor made an accused in
this case.
34. The learned counsel for the appellant has also submitted that
there is no evidence to show that the appellant wielded the
Khukri at the time of the incident of assault on the deceased.
35. He has also submitted that though there is evidence suggesting
that the appellant was holding the wooden handle of the Khukri
in his hand, however said wooden handle has not been seized
and produced before the learned Trial Court. He submits that
the Khukri was also not sent for forensic examination and there
is no evidence to link the said Khukri with the offence alleged in
this case.
36. The learned counsel for the appellant has also submitted that
though the sketch-map of the place of occurrence has not been
proved and exhibited in this case, however same is available in
the case record and it is prepared, very casually, by the
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Investigating Officer. It does not show the location of the house
of PW-1 or the house of PW-4, where the deceased is said to
have found before he made his oral dying declarations,
rendering such sketch map as useless piece of document.
37. The learned counsel for the appellant has also submitted that
the prosecution side also did not examine Sri Dil Bahadur Chetry
as a witness, who informed about the incident to the police,
first in time, and on the basis of whose information, G.D. Entry
No. 474 of 28.11.1989 was made and the police had rushed to
the place of occurrence. The learned counsel for the appellant
has also submitted that there is no evidence showing that the
Khukri was recovered as a result of information received from
the appellant. He has submitted that though, PW-8 has deposed
that as stated by the accused, the handle less Khukri was
recovered from the jungle near the place of occurrence,
however there is no evidence to suggest that what was the
information which was given to the police by the appellant on
the basis of which the said Khukri was seized.
38. The learned counsel for the appellant has submitted that the
evidence on record against the appellant are not sufficient to
prove the guilt of the appellant beyond all reasonable doubt and
therefore, the appellant is entitled to get benefit of doubt and
acquittal in this case.
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39. On the other hand, Ms. S Jahan, the learned Additional Public
Prosecutor has submitted that the learned Trial Court has
correctly convicted the appellant under Section 302 of the
Indian Penal Code, on the basis of ocular evidence of PW-7 as
well as on the basis of oral dying declaration as evident from
the testimony of PW-1 and PW-4. She submits that evidence of
the witnesses on record when read as a whole reflects a ring of
truth in the prosecution story. She submits that the ocular
evidence of PW-7 is fully corroborated by the oral dying
declaration as evident from the testimony of PW-1 and PW-4.
40. The learned Additional Public Prosecutor also submits that as
the testimony of witnesses were recorded after a long gap,
there might be certain minor discrepancies on trivial matters
which do not go into the root of the case and which are not
material in nature so as to affect the prosecution case. She has
submitted that the PW-7, who is the ocular witness, has
categorically implicated the appellant of having stabbed the
deceased with a Khukri and the said testimony could not be
demolished during his cross-examination by the defence side.
She also submits that in view of the categorical uncontroverted
statement of the deposition of the PW-7 implicating the
appellant, non-examination of “Kalia”, who was stated to be
another eyewitness would not be fatal to the prosecution case
as it is not the number of witnesses, which are required to
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prove a case, but the quality of evidence adduced by the
prosecution side.
41. The learned Additional Public Prosecutor has also submitted that
there is no material on record to show that there is any kind of
animosity between the appellant and PW-1, PW-4 and PW-7 for
them to implicate the appellant falsely in this case. She has also
submitted that oral dying declaration, if found trustworthy can
be the sole basis for conviction in a given case, however, she
submits in the instant case, apart from the oral dying
declaration before two witnesses which remain uncontroverted,
there is evidence of ocular witness in this case, which could not
be controverted by the defence side and hence she submits that
the learned Trial Court had correctly convicted the appellant
under Section 302 of the Indian Penal Code.
42. The learned Additional Public Prosecutor also submits that as
there is an ocular witness in this case, hence, the non-
examination of the weapon of assault that is Khukri in forensic
laboratory would not be fatal to the prosecution case.
43. The learned Additional Public Prosecutor has also submitted that
not stating about the presence of the PW-7 at the place of
occurrence by the PW-1 and PW-4 is also not sufficient for
disbelieving the testimony of PW-7, as there is a time gap
between the presence of PW-7 and PW-1 and PW-4 at the place
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of occurrence. She submits that the PW-7, who is the eye-
witness tried to apprehend the appellant, who fled away after
the incident, whereas, the PW-4 and the PW-1 came to know
about the incident only when the injured Ganesh came and fell
down near their residence.
44. The learned Additional Public Prosecutor also submits that in
the evidence of PW-7, it is also there that before stabbing the
deceased there was an altercation between the appellant and
the deceased. She also fairly submits that, it was proper for the
Investigating Officer to get the statement of the deceased
recorded by a doctor or by a Magistrate, when he was admitted
in the hospital, however, there is no material on record to show
the condition of the deceased, while he was admitted in the
hospital. There is nothing to suggest that the deceased was in a
condition to speak and communicate, while he was admitted in
the hospital. Hence, she submits that mere non-recording of the
dying declaration by a Magistrate or by a doctor would not be
fatal in this case and the oral dying declarations by the
deceased before the PW-1 and the PW-4 are sufficient to come
to the conclusion of the guilt of the appellant as same gets
corroborated by other evidence like the testimony of PW-7.
45. As regards the person who was accompanying the appellant on
the date of alleged incident, the learned Additional Public
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Prosecutor submits that though there is no evidence on record
to that effect, however, the case diary suggests that the man,
who was accompanying the accused on that day was one
Lakhimi Rai and whose statement was also recorded by the
Investigating Officer under Section 161 of the Code of Criminal
Procedure, 1973 during which he had categorically stated that
the appellant had stabbed the deceased with a Khukri and
hence, the non-examination of the evidence of said Lakhimi Rai
would not be fatal. Further, the case records reveal that he had
already expired during the course of the trial.
46. The learned Additional Public Prosecutor has submitted that as
the testimony of the relevant witnesses, namely, PW-1, PW-4
and PW-7 remain unshaken on material aspects, the learned
Trial Court was correct in coming to the conclusion of guilt of
the appellant on the basis of said evidence and hence, she
submits that the impugned judgment of conviction of the
appellant under Section 302 does not warrant any interference.
47. We have considered the rival submissions made by the learned
counsel for both the sides. We have also meticulously gone
through the materials on record, including the case record of
Sessions Case No. 56/1991, which was requisitioned in
connection with this appeal.
48. On perusal of the impugned judgment, it appears that the
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learned Trial Court has mainly relied on the testimony of PW-1
and PW-4 before whom, the deceased had made oral dying
declaration as well as the testimony of the sole ocular witness,
namely PW-7 for arriving at the finding of guilt of the appellant
in this case.
49. In a catena of decisions, the Supreme Court of India has held
that the law is well settled, that the conviction can be founded
solely on the basis of dying declaration if the same inspires full
confidence. As regards how to weigh the veracity of an oral
dying declaration, the Apex Court has observed in the case of
Parbin Ali and Another Vs. State of Assam reported in (2013) 2
SCC 81 as follows: –
“14. In Ranjit Singh v. State of Punjab [(2006)
13 SCC 130: (2007) 2 SCC (Cri) 604] , it has been
held that: (SCC p. 134, para 13)
“13. … conviction can be recorded on the basis of
a dying declaration alone, if the same is wholly
reliable, but in the event there exists any suspicion
as regards the correctness or otherwise of the said
dying declaration, the courts in arriving at the
judgment of conviction shall look for some
corroborating evidence.”
In this context, we may also notice the judgment
in Nanhau Ram v. State of M.P. [1988 Supp SCC
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152 : 1988 SCC (Cri) 342] wherein it has been
stated that normally, the court, in order to satisfy
itself whether the deceased was in a fit mental
condition to make the dying declaration, looks up
to the medical opinion. But where the eyewitness
said that the deceased was in a fit and conscious
state to make the dying declaration, the medical
opinion cannot prevail.
15. While dealing with the evidence of the
declarant’s mind, the Constitution Bench in
Laxman v. State of Maharashtra [(2002) 6 SCC
710: 2002 SCC (Cri) 1491], has laid down thus:
(SCC pp. 713-14, para 3)
“3. The juristic theory regarding acceptability of a
dying declaration is that such declaration is made
in extremity, when the party is at the point of
death and when every hope of this world is gone,
when every motive to falsehood is silenced, and
the man is induced by the most powerful
consideration to speak only the truth.
Notwithstanding the same, great caution must be
exercised in considering the weight to be given to
this species of evidence on account of the
existence of many circumstances which may affect
Crl.A. No. 70/2020 Page 23
Page 24 of 43
their truth. The situation in which a man is on the
deathbed is so solemn and serene, is the reason in
law to accept the veracity of his statement. It is
for this reason the requirements of oath and
cross-examination are dispensed with. Since the
accused has no power of cross-examination, the
courts insist that the dying declaration should be
of such a nature as to inspire full confidence of the
court in its truthfulness and correctness. The
court, however, has always to be on guard to see
that the statement of the deceased was not as a
result of either tutoring or prompting or a product
of imagination. The court also must further decide
that the deceased was in a fit state of mind and
had the opportunity to observe and identify the
assailant. Normally, therefore, the court in order
to satisfy itself whether the deceased was in a fit
mental condition to make the dying declaration
looks up to the medical opinion. But where the
eyewitnesses state that the deceased was in a fit
and conscious state to make the declaration, the
medical opinion will not prevail, nor can it be said
that since there is no certification of the doctor as
to the fitness of the mind of the declarant, the
dying declaration is not acceptable. A dying
Crl.A. No. 70/2020 Page 24
Page 25 of 43
declaration can be oral or in writing and any
adequate method of communication whether by
words or by signs or otherwise will suffice
provided the indication is positive and definite.”
16. In this context, it will be useful to refer to
the decision in Puran Chand v. State of Haryana
[(2010) 6 SCC 566 : (2010) 3 SCC (Cri) 197]
wherein it has been stated that a mechanical
approach in relying upon a dying declaration just
because it is there is extremely dangerous and it is
the duty of the court to examine a dying
declaration scrupulously with a microscopic eye to
find out whether the dying declaration is
voluntary, truthful, made in a conscious state of
mind and without being influenced by the relatives
present or by the investigating agency who may
be interested in the success of investigation or
which may be negligent while recording the dying
declaration. The Court further opined that: (Puran
Chand case [(2010) 6 SCC 566: (2010) 3 SCC (Cri)
197] , SCC p. 572, para 18)
“18. The law is now well settled that a dying
declaration which has been found to be voluntary
and truthful and which is free from any doubts can
be the sole basis for convicting the accused.”
Crl.A. No. 70/2020 Page 25
Page 26 of 43
17. Regard being had to the aforesaid
principles, we shall presently advert how to weigh
the veracity of an oral dying declaration. As has
been laid down in Laxman [(2002) 6 SCC 710 :
2002 SCC (Cri) 1491] by the Constitution Bench, a
dying declaration can be oral. The said principle
has been reiterated by the Constitution Bench.
Here we may refer to a two-Judge Bench decision
in Prakash v. State of M.P. [(1992) 4 SCC 225 :
1992 SCC (Cri) 853] wherein it has been held as
follows: (SCC p. 234, para 11)
“11. … In the ordinary course, the members of the
family including the father were expected to ask
the victim the names of the assailants at the first
opportunity and if the victim was in a position to
communicate, it is reasonably expected that he
would give the names of the assailants if he had
recognised the assailants. In the instant case
there is no occasion to hold that the deceased was
not in a position to identify the assailants because
it is nobody’s case that the deceased did not know
the accused persons. It is therefore quite likely
that on being asked the deceased would name the
assailants. In the facts and circumstances of the
case the High Court has accepted the dyingCrl.A. No. 70/2020 Page 26
Page 27 of 43declaration and we do not think that such a
finding is perverse and requires to be interfered
with.”
18. It is worthy to note that in the aforesaid case
this Court had laid down that when it is not borne
out from the evidence of the doctor that the
injuries were so grave and the condition of the
patient was so critical that it was unlikely that he
could make any dying declaration, there was no
justification or warrant to discard the credibility of
such a dying declaration.”
50. In the instant case, the PW-1 has made a categorical statement
in his deposition that he saw Ganesh Thapa come crying and
fell down near his house. He had injuries on his stomach and on
inquiring, Ganesh Thapa told PW-1 that the appellant had
stabbed him in the stomach. Neither this testimony of PW-1
could be controverted by the defence side during his cross-
examination nor anything could be projected by the defence
side as to why PW-1 would falsely implicate the present
appellant with such a grave accusation. Similarly, the testimony
of PW-4 also shows that the deceased Ganesh came to her
residence with physical injury and on being asked he told that
Shabilal (the appellant) cut him. As regards the submissions
made by learned counsel for the appellant that the PW-4 has
Crl.A. No. 70/2020 Page 27
Page 28 of 43
deposed that the deceased lied down in her premises, whereas,
PW-1 has deposed that the Ganesh Thapa fell down near his
house, hence, the location where the Ganesh Thapa fell down
and made his dying declaration is itself not clear is not a
convincing argument to discard the testimony of PW-1 and PW-
4. More so, in absence of any evidence to show that the houses
of the PW-1 and the PW-4 are situated far from each other. It is
pertinent to mention herein that though a sketch-map was
prepared by the Investigating Officer in this case, we are
constrained to observe that the sketch-map was most
perfunctorily prepared making it as a useless piece of document
on the record. Be that as it may, in absence of any evidence on
record suggesting that the house of the PW-1 and the PW-4 are
situated far away, the testimony of the PW-1 and the PW-4
does not appear to be contradictory to each other and their
deposition to the effect that the deceased while making dying
declaration lied down near their premises cannot be a ground to
discard their testimony or disbelieve that the deceased made
such a dying declaration before them.
51. The defence side could not suggest anything to show any
reason for the PW-1 and the PW-4 to falsely implicate the
appellant in this case. The testimony of the PW-1 to the effect
that the deceased came crying and fell down near his house
shows that he was conscious when he made his dying
Crl.A. No. 70/2020 Page 28
Page 29 of 43
declaration before the said witness. More so, there is nothing on
record to suggest that while making the statement before the
PW-1 and the PW-4, the deceased was not in a fit condition to
make such a statement, as it appears that he made such
statement before the said witnesses immediately after the
assault.
52. Though, the PW-8, namely, the In-Charge of Manja Police Out
Post, who is the Investigating Officer, has deposed that on the
next day of the incident, he came to the hospital and Ganesh
Thapa stated before him that he was attacked by Shabilal, while
on his way to Manja, however, said evidence was not taken into
consideration by the learned Trial Court and therefore, we are
refraining ourselves from discussing the said evidence. Though
it was always proper for the Investigating Officer to get the
dying declaration of the deceased recorded by a Magistrate or
by a doctor if it was possible, however, same in itself cannot be
a reason for discarding the dying declaration made before the
PW-1 and the PW-4 by the deceased, as there is no reason to
disbelieve the testimony of the PW-1 and the PW-4. The
discrepancies pointed out by the learned counsel for the
appellate in our considered opinion are minor in nature and do
not go into the root of the prosecution case adversely affecting
the same.
53. Considering the nature of injury sustained by the deceased in
Crl.A. No. 70/2020 Page 29
Page 30 of 43
his vital organs like liver and lungs by long sharp cutting
weapon as reflected in the testimony of the PW-6, that is, the
doctor who conducted the post-mortem examination of the
dead body of the deceased, we are not in any doubt that the
death of the deceased Ganesh Thapa was homicidal in nature
and the assailant who inflicted the injuries intended to cause his
death.
54. The testimony of the sole ocular witness is also not
controverted by the defence side. The principles for
appreciating the evidence of an ocular witness have been laid
down by the Supreme Court of India in the case of Shahaja
Alias Shahajan Ismail Mohd. Shaikh Vs. State of Maharashtra
reported in (2023) 12 SCC 558 which can be gainfully
reproduced as follows: –
“29. The appreciation of ocular evidence is a hard task.
There is no fixed or straitjacket formula for appreciation of
the ocular evidence. The judicially evolved principles for
appreciation of ocular evidence in a criminal case can be
enumerated as under:
29.1. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness read
as a whole appears to have a ring of truth. Once that
impression is formed, it is undoubtedly necessary for the
Court to scrutinise the evidence more particularly keeping in
view the deficiencies, drawbacks and infirmities pointed out
in the evidence as a whole and evaluate them to find outCrl.A. No. 70/2020 Page 30
Page 31 of 43whether it is against the general tenor of the evidence
given by the witness and whether the earlier evaluation of
the evidence is shaken as to render it unworthy of belief.
29.2. If the Court before whom the witness gives
evidence had the opportunity to form the opinion about the
general tenor of evidence given by the witness, the
appellate court which had not this benefit will have to
attach due weight to the appreciation of evidence by the
trial court and unless there are reasons weighty and
formidable it would not be proper to reject the evidence on
the ground of minor variations or infirmities in the matter of
trivial details.
29.3. When eyewitness is examined at length it is quite
possible for him to make some discrepancies. But courts
should bear in mind that it is only when discrepancies in the
evidence of a witness are so incompatible with the
credibility of his version that the court is justified in
jettisoning his evidence.
29.4. Minor discrepancies on trivial matters not
touching the core of the case, hypertechnical approach by
taking sentences torn out of context here or there from the
evidence, attaching importance to some technical error
committed by the investigating officer not going to the root
of the matter would not ordinarily permit rejection of the
evidence as a whole.
29.5. Too serious a view to be adopted on mere
variations falling in the narration of an incident (either as
between the evidence of two witnesses or as between two
statements of the same witness) is an unrealistic approachCrl.A. No. 70/2020 Page 31
Page 32 of 43for judicial scrutiny.
29.6. By and large a witness cannot be expected to
possess a photographic memory and to recall the details of
an incident. It is not as if a video tape is replayed on the
mental screen.
29.7. Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence which so often has an element
of surprise. The mental faculties therefore cannot be
expected to be attuned to absorb the details.
29.8. The powers of observation differ from person to
person. What one may notice, another may not. An object
or movement might emboss its image on one person’s mind
whereas it might go unnoticed on the part of another.
29.9. By and large people cannot accurately recall a
conversation and reproduce the very words used by them
or heard by them. They can only recall the main purport of
the conversation. It is unrealistic to expect a witness to be
a human tape recorder.
29.10. In regard to exact time of an incident, or the
time duration of an occurrence, usually, people make their
estimates by guess work on the spur of the moment at the
time of interrogation. And one cannot expect people to
make very precise or reliable estimates in such matters.
Again, it depends on the time-sense of individuals which
varies from person to person.
29.11. Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in rapid
succession or in a short time span. A witness is liable to get
Crl.A. No. 70/2020 Page 32
Page 33 of 43
confused, or mixed up when interrogated later on.
29.12. A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing cross-
examination by counsel and out of nervousness mix up
facts, get confused regarding sequence of events, or fill up
details from imagination on the spur of the moment. The
subconscious mind of the witness sometimes so operates
on account of the fear of looking foolish or being
disbelieved though the witness is giving a truthful and
honest account of the occurrence witnessed by him.
29.13. A former statement though seemingly
inconsistent with the evidence need not necessarily be
sufficient to amount to contradiction. Unless the former
statement has the potency to discredit the later statement,
even if the later statement is at variance with the former to
some extent it would not be helpful to contradict that
witness.
[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat
[Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983)
3 SCC 217 : 1983 SCC (Cri) 728 : AIR 1983 SC 753] , Leela
Ram v. State of Haryana [Leela Ram v. State of Haryana,
(1999) 9 SCC 525 : 2000 SCC (Cri) 222 : AIR 1999 SC
3717] and Tahsildar Singh v. State of U.P. [Tahsildar Singh
v. State of U.P., 1959 SCC OnLine SC 17 : AIR 1959 SC
1012] ]
30. To put it simply, in assessing the value of the
evidence of the eyewitnesses, two principal considerations
are whether, in the circumstances of the case, it is possible
to believe their presence at the scene of occurrence or in
Crl.A. No. 70/2020 Page 33
Page 34 of 43
such situations as would make it possible for them to
witness the facts deposed to by them and secondly,
whether there is anything inherently improbable or
unreliable in their evidence. In respect of both these
considerations, the circumstances either elicited from those
witnesses themselves or established by other evidence
tending to improbabilise their presence or to discredit the
veracity of their statements, will have a bearing upon the
value which a court would attach to their evidence.
Although in cases where the plea of the accused is a mere
denial, yet the evidence of the prosecution witnesses has to
be examined on its own merits, where the accused raise a
definite plea or puts forward a positive case which is
inconsistent with that of the prosecution, the nature of such
plea or case and the probabilities in respect of it will also
have to be taken into account while assessing the value of
the prosecution evidence.”
55. In the instant case, the testimony of the PW-7 to the effect that
Ganesh Thapa was attacked by Shabilal after some altercation
could not be demolished by the defence side. The evidence of
the PW-7 to the effect that Ganesh Thapa was going to Manja
Bazaar, along with him and one Kalia before the alleged assault,
also could not be controverted and it remained intact. Though,
the prosecution side has failed to examine Kalia, however, same
would not have much impact as the testimony of the PW-7
could not be demolished during his cross-examination.
Crl.A. No. 70/2020 Page 34
Page 35 of 43
56. Upon perusal of the original deposition form containing the
testimony of PW-7, it is evident that there is a cutting of a word
following the word ‘did,’ made without any initials of the person
responsible. Even if the benefit of this discrepancy is given to
the appellant, accepting that PW-7 did not witness the actual
stabbing of Ganesh Bahadur, his testimony during the
examination-in-chief remains intact. PW-7 stated that Ganesh
Bahadur was attacked by Shabilal following an altercation, and
this is corroborated by medical evidence, which found stab
injuries on the deceased’s vital organs during the post-mortem
examination.
57. As PW-7 was accompanying the deceased at the time of the
incident and was only about 15 meters away when the
deceased went to urinate, he witnessed the appellant having an
altercation with the deceased. After the deceased sustained
injuries to his abdomen, PW-7 attempted to apprehend the
appellant, who was fleeing the crime scene. Considering this
sequence of events, there appears to be a ring of truth in PW-
7’s testimony when viewed in conjunction with other evidence
on record. The post-mortem report further confirms stab
injuries on vital organs such as the liver and lung. Moreover,
there is no evidence to suggest why PW-7 would falsely
implicate the appellant.
58. Though, the PW-1 and PW-4 did not mention the presence of
Crl.A. No. 70/2020 Page 35
Page 36 of 43
the PW-7 in their testimony, the testimony of the PW-7
indicates that after the incident, he tried to catch the appellant,
who was fleeing the crime scene. Therefore, it is possible that
when PW-1 and PW-4 saw the deceased lying down, they did
not notice PW-7. Hence, the absence of any mention of PW-7’s
presence by PW-1 and PW-4 in their depositions does not, by
itself, render the testimonies of PW-7, PW-1, or PW-4
inconsistent or unreliable.
59. We are of the considered opinion that there is nothing palpable
or glaring in the testimony of PW-7 as well as PW-1 and PW-4
which would affect the probative value of their testimonies.
Minor differences in the testimony of witnesses are in our
considered opinion, not sufficient to discard the evidentiary
value of their testimonies.
60. In the instant case, there are certain lapses on the part of the
Investigating Officer in not sending the weapon of offence for
forensic examination, in not preparing proper sketch-map of the
place of occurrence, in not taking any steps for getting the
dying declaration of the deceased recorded by a Magistrate or a
doctor and in not examining another ocular witness, namely,
Kalia. However, in spite of these lapses, for the reasons
discussed in the foregoing paragraphs, the testimony of PW-7,
PW-1 and PW-4 inspire confidence and there is no inherent
improbability or anything which goes into the root of the case
Crl.A. No. 70/2020 Page 36
Page 37 of 43
making their testimony unreliable.
61. Though, sufficient evidence regarding the motive of commission
of offence by the appellant is not there on record, however,
there is evidence in the testimony of PW-7 that prior to the
assault wherein the deceased had suffered stab injuries, there
was an altercation between the appellant and the deceased
which led to the commission of offence. Hence, considering the
other evidence on record, the absence of specific proof
regarding the motive, in this case, is not enough for disbelieving
the testimony of PW-7, PW-4 and PW-1.
62. We are, therefore, in agreement with the conclusion of the guilt
of the appellant, arrived at by the learned Sessions Judge, Karbi
Anglong, in the impugned judgment, relying on the evidence of
the PW-1, PW-4 and PW-7.
63. For the reasons discussed in foregoing paragraphs, we are of
the considered opinion that there is no merit in the present
appeal and accordingly, same is dismissed.
64. Send back the record to the learned Trial Court, along with a
copy of this judgment.
Sanjay Kumar Medhi, J (Concurring):-
65. I have had the privilege of going through the draft of the
judgment of my esteemed brother, Justice Kalita and fully agree
Crl.A. No. 70/2020 Page 37
Page 38 of 43
with the conclusions. However, on the aspect of the sketch map
which was prepared in this case during the investigation,
though my esteemed Brother has already criticized the same,
something is more to be added.
66. In the instant case, the sketch map was not even proved or
exhibited, though it is a part of the case records. However, a
perusal of the same indicates that it has been prepared in a
most perfunctory manner, as rightly observed by my learned
Brother.
67. More often than not, it is seen that the sketch maps in a
criminal case which forms an important role in the justice
dispensation system are prepared in a mechanical manner, to
say the least.
68. The Assam Police Manual (Part-V) itself lays down certain
guidelines in Rule 194 which comes under Chapter-III dealing
with “Investigation and Detection of Crime”. The said Rule lays
down that maps are required to be prepared in heinous cases
and should accompany the charge sheet. For ready reference,
the said Rule is extracted hereinbelow:
“194. Maps required in heinous cases – (a)
the following heinous cases map or a plan of, if
required by circumstances, both will always
accompany the charge sheet: –
(i) Murder.
Crl.A. No. 70/2020 Page 38
Page 39 of 43
(ii) Highway of mail robbery.
(iii) Dacoity or extensive burglary or theft.
(iv) Riot involving grievous hurt or culpable
homicide or damage to property.
(b) The map should be drawn to suitable scale
which should be marked on it. It will show all
particulars likely to be of use to the court, such as,
the place of occurrence, the surrounding rooms or
houses the houses of the witnesses etc., with their
relative positions and distances. The number of the
case and the name of the accused should be given
at the top and the map should be signed at the
foot by the draftsman who should be produced as
a witness at the trial to prove the map evidence
being adduced to show who pointed out to him the
various places marked on it.
(c) Maps to be of value must be prepared as
early in the investigation as possible. Particulars
derived from witnesses questioned on the spot
should not be noted on the body of the map but
on a separate sheet of paper annexed to the map
as an index thereto, the places indicated being
lettered or numbered on the map for reference.
(d) The investigating officer should not prepare the
map when a draftsman is available. The witnesses
who will point out the places to the draftsman will
be sent by the investigating officer to accompany
him to the place of occurrence and all necessary
instruction with regard to the drawing of the mapCrl.A. No. 70/2020 Page 39
Page 40 of 43should be given by the investigating officer to the
draftsman.”
69. This Court has also delved into other available materials on the
aforesaid issue of the requirement and preparation of sketch
maps. A map which has been accurately prepared reduces the
length of the reports, gives a better impression on the mind of
the reader and even a complicated case can be lucidly
explained. A meticulous preparation increases the power of
observation of the IO and undoubtedly, plays an important role
in the justice dispensation system. In a given case, a properly
prepared map would often be handy to test the veracity of a
witness who claims to have seen an incident.
70. As per materials available in this regard, there are the following
principal types of sketch maps:
i) Regarding interior of a house: Here the description
of the immediate scene inside the room where the
offence has committed and details thereof, like, blood
stains, furniture, articles etc.;
ii) Regarding a house: The description can be of the
type of the house, namely, whether it is a hall or
consisting of rooms, availability of a courtyard, doors,
windows etc.;
Crl.A. No. 70/2020 Page 40
Page 41 of 43
iii) Regarding the environ of a house: The
description would be of the nearest surrounding, like
a garden, different floors, compound or campus;
71. Over and above the guidelines laid down in Rule 194 (supra),
certain instructions which can be generally taken into account
for preparing sketch maps may be noted which are as follows:
i) All sketch maps should clearly indicate the
directions and for this purpose, the North point
should be ascertained by a compass;
ii) The sketch map is required to be in scale distance
and the measurement be made accurately and all
important things should be mentioned;
iii) The distances should be measured before the
articles/exhibits are seized or taken charge during the
investigation;
iv) All measurements are required to be done with
equal accuracy and in the same mode;
v) The sketch map is required to show the position of
all articles, marks, blood stains, track marks of vehicles etc.
which are relevant to the case;
vi) It is absolutely necessary not only to correctly put
the distance but also the angles between various articles;
Crl.A. No. 70/2020 Page 41
Page 42 of 43
vii) Any marks, articles etc. on the map should be
indicated by alphabets such as A, B, C etc. and the details
explained in the margin or on the bottom of the map;
viii) The scale along with the title, the case reference,
date, time and the name of the person preparing the same
must be recorded in one part of the sketch itself and the
signature of the person along with the date should also be
put;
ix) The measurements should be made by the sketcher
himself and not left to be taken by others;
x) All details should be incorporated in the sketch map
at the place of occurrence itself when the same is prepared
and nothing should be left to be recollected from memory;
xi) In case of the involvement of a motor vehicle in an
accident or an offence, the information regarding point of
impact, track of the vehicles concerned, position of the
vehicle after the accident, width and nature of the road
surface, skid marks and brake impression, position of broken
glass or other parts of the vehicle, any fixed objects, like
tree, post or poles which might have a bearing, weather
condition at the time of the accident etc. should be indicated;
Crl.A. No. 70/2020 Page 42
Page 43 of 43
xii) The map should be done with a free hand on a
blank sheet of paper wherein the details mentioned above
should be indicated;
xiii) For preparing the sketch maps, the following
articles are to be invariable carried:
a) A compass;
b) A drawing (geometry) instrument box;
c) A measuring tape;
d) Plain paper (preferably drawing paper), pencil and
eraser.
72. The aforesaid may be taken as a broad guideline in the matter
of preparation of sketch map in investigations.
73. Let a copy of this judgment be communicated to the Home
Department, Assam and the Director General of Police, Assam
so that the same can be circulated amongst all the Police
Stations and the Investigating Agencies.
JUDGE JUDGE Comparing Assistant Crl.A. No. 70/2020 Page 43
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