IN THE GAUHATI HIGH COURT THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR: TRIPURA: MIZORAM & ARUNACHAL PRADESH CRIMINAL APPEAL NO.

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1 IN THE GAUHATI HIGH COURT THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR: TRIPURA: MIZORAM & ARUNACHAL PRADESH CRIMINAL APPEAL NO. 122 OF 2009 Sri Ranjit Raju Appellant -Versus- State of Assam Respondent BEFORE THE HON BLR MR.JUSTICE I.A. ANSARI THE HON BLR MR.JUSTICE AC UPADHYAY For the appellant : BM Choudhury, Advocate. For the respondents : Mr. Z Kamar, Public Prosecutor, Assam. Date of hearing : Date of Judgment : {IA Ansari, J} JUDGEMENT AND ORDER This is an appeal against the judgment and order, dated , passed by the learned Additional Sessions Judge (FTC), Bongaigaon, in Sessions Case No. 8 (BGN) of 2008, convicting the accused-appellant under Section 302 IPC and sentencing him to suffer imprisonment for life and pay fine of Rs. 5,000/- and, in default of payment of fine, undergo rigorous imprisonment for six months. Both the punishments, so imposed, were directed to run consecutively. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On , at about 10 am, when Maya Kaur, mother of Rupa Pinki (PW5), was supervising the repairing work, in her house, by engaging mason, the accused, who is related to Rupa Kaur

2 2 (PW5), came from the back side, caught hold of Maya Kaur, pressed her mouth with one hand and cut her throat by his other hand and ran away from the scene of the occurrence. Maya Kaur fell down on the ground. On witnessing the occurrence, PW5 raised alarm, her neighbours assembled and she, then, accompanied by some others, proceeded to Swagat Hospital with her mother, but on the way, her mother breathed her last, because, on their reaching the hospital, the doctor examined her mother and declared her dead. PW5, then, went to Bongaigaon Police Station and lodged there a written Ejahar, on itself, alleging to the effect that while her mother was supervising the work in their courtyard, the present appellant, Ranjit Singh, had entered into their house from the rear side and cut her mother Maya Kaur, in her throat, by a dragger, her mother fell down and though her mother was taken to Swagat Hospital for treatment, she died on the way. Based on the said Ejahar and treating the same as First Information Report, a case was registered, against the accused-appellant, under Sections 448/302 IPC. During the course of investigation, inquest was held over the said dead body, inquest report was prepared and the dead body was put through post mortem examination and, on completion of investigation, police laid charge-sheet against the accused under Section 302 IPC. 3. To the charge, framed under Section 302 IPC, at the trial, the accused pleaded not guilty. 4. In order to bring home the charge, prosecution examined as many as 8 (eight) witnesses. On closing of the evidence of the prosecution, the accused was examined under Section 313 Cr.P.C. and, in his examination aforementioned, the accused, while denying that he had committed the

3 3 offence, which was alleged to have been committed by him, contended that the informant, Rupa Kaur, was his lover, he had a quarrel over her decision to marry a man from Bihari community and, out of grudge, Rupa Kaur has lodged this false accusation against him, though he is completely innocent. No evidence was, however, adduced by the defence. 5. Having reached the finding that the accused was guilty of the offence charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused has preferred this appeal. 6. We have heard Mr. BM Choudhury, learned counsel for the accused-appellant, and Mr. Z Kamar, learned Public Prosecutor, Assam. 7. In the case at hand, since Rupa Kaur (PW5) has been examined as the sole eye witness to the occurrence of assault on her mother Maya Kaur, her evidence, being pivotal in nature, is taken up, first, for discussion and decision. According to her evidence, on , at about 10 am, she was present at home with her mother, who was supervising the repairing works being done by meson in their house, and at that point of time, she saw accused Ranjit Singh, coming from the back side of their house, catching hold of her mother, Maya Kaur, from backside, pressed her mouth with one hand and, then, cut her throat by the other hand and the accused immediately ran away, her mother fell down on the ground, she raised alarm and, accompanied by her neighbours, she carried her

4 4 mother to Swagat Hospital, but the doctor, on examining her mother, declared her dead. 8. Though the defence put PW5 to lengthy cross-examination, nothing was specifically elicited from her cross-examination to show that what she had deposed was untrue or false. Though in her cross-examination, PW5 has admitted that Maya Kaur s compound had several houses, which were occupied by tenants and some of the tenants were also present, it needs to be carefully noted that it was not elicited by the defence from PW5 that any one, other than her, had seen the occurrence of assault on her mother nor was it even suggested to PW5 by the defence that anyone, other than her (PW5), had witnessed the occurrence. This apart, as already indicated above, PW5 s evidence clearly shows that the accused, suddenly, came from the backside of the house, caught hold of Maya Kaur, pressed her mouth with one hand and cut her throat by a dragger with the other hand and, immediately, ran away. In such circumstances, it is not wholly impossible that none other than PW5, who was looking at her mother, had seen the occurrence. 9. Coupled with the above, it has also clearly emerged from the evidence of PW5 that her mother, Maya Kaur, was, immediately, taken to the hospital, where she was declared dead and, then, she lodged information with the police about the occurrence. The FIR, so lodged, names, in no uncertain terms, the present appellant as the assailant of Maya Kaur. 10. We see, in the circumstances as discussed above, no reason to disbelieve the evidence given by PW5, particularly, when no animosity

5 5 with her was alleged, while cross-examining PW5, or discernable in this regard from the evidence on record. In fact, it was only at the stage of his examination under Section 313 Cr.P.C., as already pointed out above, that the accused alleged that Rupa Kaur was his lover, he had a quarrel with her on her decision to marry a man from Bihari community and, out of grudge, Rupe had filed this case against him falsely. Neither any evidence has been adduced by the defence to support this contention of the defence nor does any evidences exist on record supporting this version of the defence. This apart, when Rupa Kaur (PW5) was crossexamined by the defence, no such suggestion was offered to her by the defence and, in the absence of Rupa Kaur having received any opportunity to have his say on this aspect of the defence case, no value can be attributed to the contention of the defence that Rupa Kaur was lover of the accused, she had quarrel with him, because she had decided to marry a man from Bihari community and, out of grudge, she (Rupa Kaur) filed this case against him (accused-appellant) falsely. 11. Situated thus, we are clearly of the view that the evidence of PW5 is, in the absence of anything discernible from the record, or shown by the defence, is wholly believable. The mere fact, that some of the tenants were present in their respective houses and/or that masons were working in the house of Maya Kaur, does not necessarily mean that the tenants and/or masons had witnessed the occurrence, because we have already indicated above that the accused, suddenly, came from the backside of the house, caught hold of the mouth of Maya Kaur, pressed the same and, then, cut her throat and, immediately thereafter, ran away. The possibility, therefore, of none other than PW5 having seen the occurrence of assault on her mother cannot be ruled out.

6 6 12. When we turn to the evidence of PW1 (Prem Singh), who is the elder brother of PW5, we notice that according to his evidence, on the day of the occurrence, i.e., on , he was not at home as he had gone to Alipur and, on receiving the information, over phone, from his sister (PW5) that the accused had killed their mother, Maya Kaur, he came to the house in the afternoon and found his mother lying dead with injury on her neck and palm of her left hand, but before he could arrive, Rupa (PW5) had already lodged necessary information with the police and after he (PW1) reached his house, police also arrived there and, at that time, he found his sister, Rupa Kaur (PW5), nervous and shocked and, on making inquiry, she told him that at the time of occurrence, the accused came, pressed Maya Kaur s mouth with one hand and cut her neck by the other hand. Though this witness (PW1) has denied that he had not stated before the police that his sister, Rupa Kaur (PW5), had reported to him (PW1) about the occurrence as described by PW1, the defence has successfully elicited from the investigating officer that no such statement had been made by PW1, when he was examined by the police. Even if, therefore, the evidence of PW1 is not treated as reliable, the fact remains that his failure to give credible evidence in the Court cannot dilute, or adversely affect, the evidence of PW5, which is, otherwise, unscathered, unshaken and wholly reliable. 13. As far as PW2 and PW3 are concerned, these two witnesses have merely deposed that on the day of the occurrence, on hearing hue and cry, they came and saw the dead body of Maya Kaur being carried, in a rickshaw, by police and other men towards police station. However, the fact that both, PW 2 and PW3, were declared hostile, their evidence do

7 7 not either strengthen the case of the prosecution nor do their evidence weaken the prosecution s case or adversely affects the evidence of PW5, whose evidence we have already discussed above and come to the conclusion to be wholly reliable. 14. Coming to the evidence of PW4, son-in-law of the deceased, we notice that according to his evidence, on , he received information that his mother-in-law had been killed, whereupon he came to Swagat Hopsital, where his sister-in-law, Rupa Kaur (PW5), informed him that the accused had come to their house and killed his mother-in-law by means of a dragger and that in the meanwhile, the police came to Swagat Hospital. Strongely enough, the defence declined to crossexamine PW4 and his evidence has, thus, remained unchallenged. Though PW4 has claimed that he had been reported by PW5 that accused Ranjit Singh had killed Maya Kaur, the fact remains that PW5, having given no such evidence that she had reported to PW4 that accused had killed her mother, the evidence, given by PW4, is nothing, but hearsay for the purpose of determining the truth or veracity of the evidence of PW When we turn to the evidence of the doctor (PW6), who, admittedly, conducted the post mortem examination, on , we find that the doctor s findings were as follows: On , I was working as M & H.O-I at Bongaigaon CHC on that date on police requisition, I performed post-mortem examination on the dead body of Maya Kaur and aged about 50 years, sex-female and found the following-

8 8 External appearance A fresh female body of average built, age approximately 50 years, fair complexion, eyes and mouth semi open. Wounds One incised wound in front of neck just about thyroid cartilage, spindle shape, size about 15cm x 3cm x 4cm. One incised wound in left hand (Palm), 1cm distal to left region i.e. wrist joint, size about 5cm x ½ cm x ½ cm. 1. Bruise, position, size and nature Nil. 2. Mark of ligature of neck Nil. 3. Caranium & Spinal Cord-canal Normal. 4. Thorax Walls, ribs and cartilage Normal. 5. Plearau Normal. 6. Laryax and trachea Treachea is totally cut in the region just about the thyroid cartilage and filled with clotted blood. 7. Right lung Normal and congested; left lung Normal & congested. 8. Pericardium Normal, Heart Normal. 9. Vessels Normal & congested. 10. Abdomen Walls normal and healthy. 11. Peritoneum Normal. 12. Mouth, Pharynx, Oesophagus Mouth & Pharynx are normal. Oesophagus is incised (cut) totally in the first part and filled with clotted blood. 13. Stomach & its contents Stomach is normal and contains undigested food particles. 14. Small intestine and its contents Normal & healthy. 15. Large intestine and its contents Normal and contains faecal matters. 16. Muscles, bones and joints As described in heading No. 1 and No. 3 above. Other parts of the body are normal. 16. From the findings of the doctor, what becomes clear is that there were two incise wounds found on Maya s dead body, one on her neck just above thyroid cartiledge and the other, on her left hand (palm). The

9 9 incise wound found on the thyroid cartiledge, just above the thyroid cartilage, had clotted blood. 17. The doctor (PW6) has opined that the cause of death was due to shock from severe haemorrhage and inhalation of efficesed blood (profused blood) into respiratory tract and air embolism, the injuries being ante mortem in nature. 18. We may point out that though PW6 had been cross-examined, nothing has been elicited from his cross-examination to show that his evidence is false, untrue, incorrect or improbable. This apart, we do not notice anything inherently improbable or incorrect in the findings of the doctor and/or cause of his death. The doctor s evidence clearly supports the description of the occurrence as given by PW5 to the effect that her mother s throat was cut by the accused. However, it is quite possible that when the accused had caught hold of the deceased, as deposed to by PW5, from behind, pressed her neck for cutting her neck, the deceased had made the attempt to stop the accused from doing so and, in the process, she sustained injury on her palm. 19. As far as PW7 is concerned, his evidence is that on , at about am, he received information, over telephone, from one of the friends of Ranjit Singh that his mother-in-law has been killed by someone by cutting her neck, whereupon PW7 rushed to hospital and found there Maya Kaur s dead body, where Rupa Kaur (PW5) was present and she reported to him (PW7) crying that her mother had been killed by Ranjit Singh (i.e., the accused-appellant).

10 Coming to the evidence of the investigating officer (PW8), we notice that he has deposed that on , a complaint was lodged by Rupa Kaur (PW5) and, having registered a case, on the basis of the said complaint, when he was entrusted, by the Officer-in-Charge, Bongaigaon Police Station, he visited the place of occurrence, drew a sketch map thereof, held inquest over the dead body and got post mortem examination done on the said dead body. 21. What emerges from the above discussion is that in the case at hand, there is only one witness, as already indicated above, who has been examined, as an eye witness, the witness being Rupa Kaur (PW5). While considering her evidence, it needs to be noted that there is no legal bar in convicting an accused on the basis of the testimony of a single witness. [See Sunil Kumar vs The State Govt. of Net of Delhi, reported in (2003) Suppl 2 SC 426 : 2004 Cri.L.J. 819]. One has to remember and recall, in this regard, the decision, rendered in Vadivelu Thevar v. The State of Madras (AIR 1957 SC 614 : 1957 Cri. L. J 1000). 22. The relevant portion of the decision rendered in Vadivelu Thevar (supra) read as under: 7. In Vadivelu Thevar v. The State of Madras this Court had gone info this controversy and divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly neither wholly reliable nor wholly unreliable. In the case of first two categories this Court said that they pose little difficulty but in the case of third category of witness corroboration would be required. The relevant portion is quoted as under:- "...Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact.

11 11 Generally speaking oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, Incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses..." 23. The nature of witnesses can be divided into three categories, namely, wholly reliable, wholly unreliable and neither wholly reliable nor wholly unreliable. As far as the first two of the said three categories, namely, wholly reliable and wholly unreliable witnesses are concerned, there is no difficulty inasmuch as the evidence of a wholly unreliable witness cannot be acted upon and must be rejected; but a witness, who is wholly reliable needs to be, and can be, relied upon. The third category of the witness, namely, those, who are neither wholly reliable nor wholly unreliable, can be acted upon if corroborated by credible evidence on record. One has to bear in mind that it is not the quantity of evidence, but qualify of evidence, which shall govern the outcome of a trial. As held in Vadivelu Thevar (supra), the Court can act on the testimony of the single witness, provided he is wholly reliable. Because he is wholly reliable, there is no impediment in convicting the accused on the basis of his evidence.

12 12 If the Court has any doubt, which must be reasonable, then, the Court may insist on corroboration. It is not the number of witnesses, but the quality of evidence, given by a witness, which is material, for, the evidence has to be weighted and not counted. On this principle, stands the edifies of Section 134 of the Evidence Act. 24. As nothing substantial has been brought on record to show that the evidence of PW5 (Smt. Rupa Pinki) suffers from any infirmity, legal or factual, this Court has no reason to discard, or not to rely upon, the evidence of this witness (PW5) and if her evidence is believed and relied upon, which we see no reason to disbelieve or not to rely upon, one can conclude, and we do conclude, that the evidence on record proves beyond reasonable doubt that the accused-appellant was proved guilty of the charge framed against him under Section 302 IPC. The conviction of the accused-appellant does not, therefore, call for any interference. 25. So far as the sentence passed against the accused-appellant is concerned, the same, as indicated above, is consecutive in the sense that he has been sentenced to undergo imprisonment for life and pay fine of Rs. 5,000/-, and, in default of payment of fine, undergo rigorous imprisonment for six months and this period has been made to run, according to the order of the learned trial Court, consecutively. 26. Considering the fact that the accused has been sentenced to imprisonment for life, the punishment, in default of payment of fine, ought to have been made, in our considered view, concurrently, for, imprisonment for life would, ordinarily, mean imprisonment for whole of the life.

13 In the result and for the reasons discussed above, this appeal partly succeeds. While the conviction of the accused-appellant is not interfered with, the sentence is modified by holding that the imprisonment, which has been directed to be undergone by him, shall run concurrently and not consecutively. 28. With the above observations and directions, this appeal shall stand disposed of. 29. Send back the LCR. JUDGE JUDGE Paul

IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH CRIMINAL APPEAL NO.

1 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH CRIMINAL APPEAL NO.168/2004 APPELLANTS 1. Md Kurban Ali, S/o- Mofed Ali, Resident