Crl.A. 199/2008 BEFORE THE HON’BLE MR JUSTICE T.VAIPHEI THE HON’BLE MR.JUSTICE B D AGARWAL JUDGMENT AND ORDER The appellant herein stands convicted under Section 302 and 448 of the Indian Panel Code (in short ’IPC’) vide impugned judgment and order dated 4.10.2008 passed by the learned Addl. Sessions Judge, (FTC) at Karimganj in Ses sions Case No.14 of 2007. On such conviction, the appellant has been sentenced t o undergo Imprisonment for Life and also to pay fine of Rs.2000/-with default st ipulation of further rigorous imprisonment for one year under Section 302,IPC. B esides this, fine of Rs.1000/- with default sentence of three months rigorous im prisonment has been imposed for offence under Section 448 IPC. Being aggrieved w ith the conviction and sentence the sole accused has preferred this appeal. 2. We have heard Sri A M Mazumdar, learned senior counsel for the a ppellant and Mr. Z. Kamar, learned additional public prosecutor, Assam. We have also gone through the impugned judgment and sentence, proferred both by the pros ecution and the accused in the trial court. 3. The investigation was set in motion, on receipt of an FIR, by th e husband of the deceased on 29.1.2006, alleging that at 9.30 pm on 25.1.2006 th e accused/appellant Abul Kasim @ Kajol trespassed into his dwelling house and at tempted to abduct his daughter and when it was resisted by the deceased, the app ellant assaulted the deceased and the informant’s daughter with a dagger. Immedi ately the deceased was taken to the Kataltoli Police Watch Post and after report ing the matter verbally, the deceased, in injured condition, was taken to Pathar kandi Hospital and finally to Karimganj Civil Hospital, where she succumbed to h er injuries on 27.1.2006. 4. The FIR was registered as Patharkandi P.S.Case No.21/2006 under Sections 448/366(A)/511/325/302 of the Indian Panel Code. The case was investiga ted by S.I.Nandaram Das (P.W.8). However, as the injured died in the civil hospi tal at Karimganj the inquest over the dead body was conducted there by an Execut ive Magistrate and an ASI of police (P.Ws 7 & 6 respectively). Thereafter, P.W.8 completed the investigation by way of drawing a rough sketch map of the site of offence, recording statements of witnesses, arresting the accused and seizing t he weapon from his possession. According to the I.O. the accused himself surrend ered in the police station on 30.1.2006 with the weapon whereupon the dagger was seized vide Ext.10. 5. After completion of the investigation charge-sheet was laid unde r the IPC provisions as per the FIR. However, the appellant faced the trial only for the offences under Section 302 and 448 IPC. 6. In order to establish the aforesaid offences, the prosecution ex amined altogether 8 (eight) witnesses. P.W.1 is he informant and P.W.2, Duktara Banu is his daughter. P.W.3, Md Safiqur Rahman @ Safiquddin is an independent wi tness from the locality;P.W.4 is the doctor who examined the dead body; P.W.5 is the medical officer who had examined informants’ daughter. P.Ws 6,7 and 8 are the police officers and the Executive Magistrate. In the midst of examining the witnesses the learned additional public prosecutor sought leave of the court und er Section 311 of the Code of Criminal Procedure to examine one Nurul Haque and two doctors from Karimganj Civil Hospital who were not cited as witnesses in the charge-sheet. Acceding to the prayer of the public prosecutor the aforesaid wit nesses were examined as C.Ws 1,2 and 3. 7. On conclusion of the prosecution evidence, statement of the accu sed under Section 313 Cr.P.C. was recorded on 11.6.2008 wherein the accused took a plea of total denial. Despite that, two witnesses were examined to prove that the accused did not voluntarily surrender in the police station and no weapon w as seized from his possession. In fact D.Ws 1 and 2 are none else but the person s cited in the seizure list of the dagger. 8. Having found the ocular testimony of prosecution witnesses the l earned additional Sessions Judge has recorded the conviction. 9. Shri Mazumder, learned senior counsel for the appellant contende d that the FIR was lodged nearly after four days and on this ground alone the pr osecution case ought to have been thrown overboard. In this regard, the learned counsel relied upon the judgment of the Hon’ble Supreme Court in the case of As hok Kumar Choudhury -vs- State of Bihar (AIR 2008 SC 2436). The learned counsel for the appellant also submitted that the appellant had affairs with the daughte r of the informant and on the relevant night the daughter of the informant plann ed to elope with the appellant which led to physical assault by her father. It w as also contended by the learned counsel for the appellant that the deceased (wi fe of the informant) had also approved the affair of her daughter with the appel lant but it was not liked by her husband and other family members. According to the learned counsel, on the relevant night a quarrel took place amongst the fami ly members regarding affair of the informant’s daughter and her attempt to elope away with the appellant and in the midst of argument and scuffle a lathi blow f ell on the head of the deceased, resulting into her death. Mr. Mazumdar, learned senior counsel also submitted that not only there are inherent discrepancies in the evidence of witnesses the opinion of the autopsy doctor also did not suppor t the prosecution case and despite that the appellant has been convicted for the offence of murder. Referring to the judgment of the Hon’ble Supreme Court rende red in the case of Gorle S.Naidu -Vs- State of A.P. and judgment of Harijana Thi rupala -vs- Public Prosecutor, Hyderabad, reported in (2002) 6 SCC 470, it was argued that if two views are inferred on the basis of same set of witnesses the view, which favours the accused, shall be taken into consideration for benefit of doubt. Finally it was urged that even if otherwise the offence of culpable h omicide, allegedly committed by the appellant, does not amount to murder since the deceased died due to sustaining only one fracture injury. 10. Per contra the learned public prosecutor submitted that the form al FIR could not be lodged promptly as the informant was busy in the treatment o f his wife and as such the trial court has rightly ignored this issue. With rega rd to discrepancy in the opinion of the autopsy doctor qua the oral testimony of the witnesses the learned public prosecutor contended that in such a situation ocular testimony will override the medical opinion. In support of this submissio n, learned public prosecutor cited the judgment of the Apex Court rendered in th e case of Thaman Kumar -vs- State of Union Territory of Chandigarh (AIR 2003 SC 3975) and the case of Vishnu -vs- State of Maharashtra reported in 2006 Crl.L.J 313 (SC). 11. First of all, we would like to dispose of the issue of delay in filing the FIR. In this regard, both the informant and his daughter have deposed that immediately after the incident they went to Kataltoli Police Out Post and verbally reported the offence. This story was not newly introduced while giving oral deposition but this fact was also categorically reflected in the FIR. It is true that the prosecution did not produce any record of Kataltoli Police Out Po st to corroborate the aforesaid evidence. It may be, because Kataltoli Police Ou t Post was neither a police out post nor a regular police station and as such th e oral information might not have been recorded in any register. Be that as it m ay, P.W.2 has explained the delay by deposing that her father could not lodge th e FIR since he was busy in arranging medical treatment to her mother and after h er death in the last rites. Neither P.W.1 nor P.W.2 was given any penetrating su ggestion in the cross-examination that a conspiracy was hatched during the afore said 3-4 days to falsely implicate the appellant. Hence, I hold that it is not a fit case wherein extreme benefit of acquittal can be given to the appellant for little delay in lodging the FIR. 12. More than five decades ago in the case of Gurucharan Singh -vs- Sate of Punjab (AIR 1956 SC 460) the Hon’ble Supreme Court had observed that tw o cases cannot be similar and each case has its own peculiar facts and as such a case involving factual differences cannot be cited as a precedent. We have go ne through the judgments cited on behalf of the appellant on the issue of taking adverse presumption on the ground of delayed FIR and notice that the judgments are distinguishable on facts. 13. Now we turn to the question of complicity of the appellant in th e alleged offences. At the outset, we would like to observe that the theory of e ither intentional or accidental assault upon the deceased by her husband or othe r family members for approving affair of P.W.2 with the appellant is totally un- acceptable. In our considered opinion, this story was projected only to mis-lead the court without any concrete evidence in this regard. It is not clear as to o n what basis the aforesaid theory was propounded in the cross-examination of the witnesses. There is no evidence in this regard except suggestions to P.Ws 1 and 2. Had there been any iota of truth in the aforesaid story at-least P.W.2, with whom the appellant had affair, would have certainly given certain hint of quarr el in between her mother, father and uncle at the relevant time. Strangely, P.W. 2 has spoken about the complicity of the appellant in the offences with full for ce and rejected each and every suggestion of the defence. Be that as it may, it is difficult to conceive that a husband would have killed his wife with a sharp weapon inflicting 7/9 inch long and deep cut wound without any serious altercati on. Having given our due consideration to the defence plea, we hold that the ple a does not hold much water and, hence, rejected thoroughly. 14. As a corollary to the rejection of defence theory the needle of suspicion is strongly pointed towards the appellant. However, in the case before us the appellant has been convicted not on the basis of suspicion or circumstan ces but on the strength of ocular testimony. As mentioned earlier both P.Ws 1 an d 2 were at home and at the relevant time the deceased and P.W.2 were in the pro cess of taking supper in the kitchen. Suddenly the appellant entered the kitchen with a dagger and pulled the hairs of P.W.2, then both the deceased and P.W.2 r aised alarm and within moments their husband/father (P.W.1) arrived at the scene and encountered the appellant. Having failed to take way P.W.2, the appellant d ealt dagger blows upon the deceased and in the process of saving her mother P.W. 2 also sustained injuries on her right arm. 15. P.W.3 is an independent witness from the locality. According to this witness, hearing shouting of P.Ws 1 and 2 he rushed to their house and on b eing enquired he was reported that the appellant fled away after assaulting the deceased with a sharp weapon. Arrival of P.W.3 at the scene within moments has b een corroborated by both P.Ws 1 and 2. Both these witnesses were not given any suggestion during the cross-examination disputing the arrival of P.W.3 at the pl ace of occurrence nor P.W. 3 himself has been contradicted in this regard. It is true that even after giving material incriminating evidence against the accused /appellant, P.W.3 was declared hostile by the prosecution only to confirm that h e had also stated before the I.O. that at the relevant time the accused barged inside the kitchen of the deceased and attempted to take away P.W.2 and on being obstructed the deceased was assaulted with dagger. In our considered opinion, even if the aforesaid story, stated before the I.O., is left out of consideratio n the remaining part of the testimony given in the chief examination can be safe ly taken as legal evidence and in this way P.W.3 has also corroborated the prose cution case that the offence had been committed by the appellant and none else. 16. C.W.1 is another witness, who has spoken about the involvement o f the appellant in the incident. This witness has deposed that at the relevant t ime he was returning from mosque after attending a religious function and at tha t time he noticed that appellant was running away near the house of the inform ant. The appellant was identified with the help of torchlight. Sri Mazumdar, lea rned senior counsel for the appellant submitted that according to C.W.1 he saw the appellant running way with a dagger at about 10 pm, whereas it is the prosec ution case that the offence was committed at around 9.30 pm. Apparently, the wit nesses are from interior place and they are illiterate persons. 17. Hence the court cannot expect graphic details of the incident wi th precision from the witnesses. What we find that, at the relevant time, C.W.1 was staying in the same village with his father in law and the witness was not g iven any suggestion in the cross-examination that he had difficulty in identifyi ng the appellant. Besides this, in the cross-examination C.W.1 has further depos ed that hearing commotion he went to the house of the informant and found Jainab Bibi lying in injured condition and one Islam and Safiqur (P.W.3) were also pre sent there. After going through the entire testimony of C.W.1, we find no diffic ulty to consider him as a corroborating witness. In the impugned judgment, the learned sessions judge has rightly observed that the appellant cannot be held gu ilty solely on the basis of deposition of C.W.1. At the same time, we do not fin d any reason to discard the testimony of C.W.1 out rightly, just because the inv estigation was done in a perfunctory manner. Since Section 311 of the Cr.P.C. ve sts power to the court to examine any material witness the court has to accord d ue sanctity to the court witnesses. 18. In the case of Shakila Abdul Gafar Khan-vs- Vasant R Dhoble rep orted in (2003) 7 SCC 749 the Hon’ble Supreme Court has observed that it has to be appraised in each case as to what extent the evidence is worthy of acceptance and merely because in some respects the court considers the same to be insuffic ient for placing reliance on the testimony of witness, it does not necessarily f ollow as a matter of law that it must be disregarded in all respect as well. The ir Lordships have further observed that all attempts should be made to separate the grain from the chaff and truth from falsehood. 19. Now we shall turn to the prosecution evidence regarding surrende r of the accused in the police station with the dagger, allegedly used in the cr ime. What we gather from the record is that both the seizure witnesses have virt ually retracted their statements given before the I.O.and they have given testi mony in favour of the appellant stating that they had no idea as to where from t he weapon was seized. Similarly the claim of the investigating officer that the accused had surrendered in the police station is also difficult to be considered as incriminating evidence in absence of any corroborative material. Had the acc used any kind of repentance for committing the offence he would have surrendered promptly or should have absconded. However, in the instant case the prosecution did not bother to bring on record the apparent motive for the accused to surren der before police after 5 days of committing murder. 20. In view of this position, we ignore the prosecution evidence of surrende r and seizure of the weapon. However, it is the settled position of law that rec overy of weapon is not sine qua non to prove an offence. Hence disbelieving the theory of seizure of weapon from the possession of the appellant ipso facto woul d have no adverse impact upon the prosecution case in view of ocular and corrobo rative testimonies, proving complicity of the appellant in the offences beyond a ny reasonable doubt. 21. Now the question is whether the death of Jainab Bibi amounted to murder. Culpable homicide has been defined in Sec.299 whereas’ murder ’ has been spelled out in sec.300 of the Indian Penal Code. The distinction betw een the two has been lucidly decided by the Hon’ble Gauhati high Court in the ca se of Ripunjoy Borgohain-vs- State of Assam, reported in 1998 (4) GLT 502. The r elevant part of the ruling can be fruitfully extracted below as:- Culpable homicide and murder both involve causing of death of human being by a nother human being. Culpable homicide is genus whereas murder is a spacie. All m urder is culpable homicide but not vice-versa. Presence of special mes-rea is th e distinguishing mark. It consists of four intellectual dispositions mentioned i n Section 300 of the I.P.C. (subject to the exceptions indicated). Punishment is to be inflicted proportionate to the gravity of the generic offence. Murder is the first degree of culpable homicide, cited in section 300. The second degree o f culpable homicide is punishable under the first part of Section 304. The third degree of culpable homicide, in the reduced form, is punishable under the secon d part of section 304. 22. It is difficult to get direct evidence about the intention of kn owledge of the assailant to perpetrate the offence of murder. These ingredients of the law have to be inferred and ascertained from a series of facts and circum stances. The court shall also have to consider whether the offence attracts any of the Give Statutory Exceptions, enumerated under Section 300- the nature and s itus of the wound, nature of the weapon used in the crime, time and place of com mitting the offence, pre and post crime conduct of the assailant, amongst others . 23. In the case before us, the appellant had used a long and sharp w eapon in assaulting the deceased. CW-3, doctor K L Kaur had examined the decease d on 25.01.2006 in injured condition at the first instance and noticed the foll owing wounds: i) Cut injury over the head extending from vertex to oxibital region measuring 9 x 1 x 1 . ii) Cut injury on the right forearm measuring 2 x 1 . 24. CW-2 is another doctor from Karimganj Civil Hospital. This witness had a lso examined the deceased on 26.01.2006 and found three stitched wounds, instead of two as mentioned by CW-3. C.W.3 has deposed that he had also noticed stitche d wounds on the left forearm in addition to cut wound on the skull and forearm. Both CWs-3 and 2 gave their respective testimony with the help of hospital recor ds, which have been marked as Exts. 5 and 6 respectively. It is true that in Ext . 6, there is no mention of cut injury on the left forearm which has been reflec ted in Ext.5. It may be so because doctor K L Paul had examined the patient in e mergency ward and after recording vital injuries and prescribing treatment, the stitching job of the wounds must have been done by other staff. At any rate, the re is no incongruity with regard to fatal injury on the vertex/ skull. In this w ay findings of CWs- 3 and 2 are by and large identical . It may be also mentione d here that according to CW-3, injuries might have been caused by sharp weapon. 25. PW-4 is the doctor who had conducted necropsy on the dead body a t Silchar Medical College and Hospital. During necropsy, the doctor had found su rgical wound on the temporal area as well as abrasion on the elbow. According to PW-4, the death of the woman was the result of head injury, which was ante-mort em in nature. The only contradiction in the deposition of PW-4 vis-a vis. CW- 2 and 3 is about the nature of weapon used in the assault. According to Pw-4, the injuries might have been caused by blunt force impact, but it were homicidal in nature, whereas, according to CW-3 sharp weapon was used. In this way, learned Sessions Judge has rightly observed that the opinion of CW-3 would be preferred since CW-3 had the occasion to examine the injured at the first instance and his testimony is supported by ocular testimony of PWs-1 and 2. Since the prosecutio n had produced original records of medical treatment at Karimganj Civil Hospital , it would be proper to go by the said records instead of findings recorded by a utopsy doctor (PW-4). In Ext.6, there is clear mention of cut injury which is s uggestive of using sharp weapon and not blunt object. Besides this, we are of th e opinion that ordinarily stitching is necessary in cut wounds and not on injuri es. which are inflicted by blunt object. 26. In the case of Thaman Kumar-vs- (supra) , the Hon’ble Supreme co urt was confronted to resolve the discrepancies for the oral testimony vis-à-vis medical opinion and observed as follows:- The conflict between oral testimony and medical evidence can be of varied dimen sions and shapes. There may be case where there is total absence of injuries whi ch are normally caused by a particular weapon. There is another category where t hough the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly ta lly with the size and dimension of the weapon. The third category can be where t he injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on the portion of the body where they are dep osed to have been caused by the eye-witness . The same kind of interference cann ot be drawn in the three categories of apparent conflict in oral and medical evi dence enumerated above. In the first category it may legitimately be inferred th at the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such inference ca n straightway be drawn. The manner and method of assault, the position of the vi ctim , the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other sim ilar factors will have to be taken into consideration in judging the reliability of occular testimony. 27. In the case of Vishnu ( Supra), the Apex Court had given more weightage to the direct testimony of witnesses than the medical opinion , it would be pr ofitable to reproduce the relevant observations of the Apex Court which are as f ollows: 21. It is urged before us by Mr. Lalit that the determination of the age of the prosecutrix by conducting ossification test is scientifically proved and, there fore, the opinion of the doctor that the girl was of 18-19 years of age should b e accepted. We3 are unable to accept this contention for the reasons that the ex pert medical evidence is not binding on the ocular evidence. The opinion of the Medical Officer is to assist the Court as he is not a witness of fact and the ev idence