Crl.A. 89/2004 BEFORE HON’BLE THE CHIEF JUSTICE MR. MADAN B. LOKUR HON’BLE MR. JUSTICE H. BARUAH Appellant Pranab Saikia stood charged along with accused Sri Ranjit Saikia, Sri Pradip Saikia, Sri Bhabendra Saikia, Sri Nirmal Saikia and Sri Ghana Saikia @ Sr i Sunil Saikia under Section 302 read with Section 34 IPC for committing murder of one Shri Gobin Bhuyan in furtherance of common intention on 22-1-1998 at abou t 11.30 a.m before the Sessions Judge, Dhemaji in Sessions Case No. 27(DH) of 20 00. The learned Sessions Judge after due trial found accused-appellant Sri Prana b Saikia guilty of charge under Section 302 IPC and accordingly convicted and se ntenced him to suffer imprisonment for life and to pay fine of Rs. 5,000/-(Rupee s five thousands) in default R. I. for one year. Learned Sessions Judge, however , did not find the rest of the accused guilty of the charge under Section 302 an d accordingly acquitted them. 2. The appellant, Pranab Saikia having been convicted and sentenced as indicated above, being aggrieved thereby has preferred this appeal on variou s grounds challenging its legality and correctness. 3. For an appropriate decision in this appeal before entering into its merit we would like to project the facts relevant to this case. Informant Di lip Kr. Bhuyan (PW-1) is the elder brother of Gobin Bhuyan, since deceased. On 2 2-1-1998 said Dilip Kr. Bhuyan lodged an FIR, Ext. 1 with the station house offi cer of Sisibor gaon police out post alleging therein that the appellant, Ghana S aikia, Ranjit Saikia, Bhabendra Saikia and Nirmal Saikia at about 11.30 a.m call ed Gobin Bhuyan away per their plan from the office of the Sisiborgaon cooperati ve society and started assault on him. Gobin Bhuyan in order to save his life st arted running towards the Samabai Samiti Office but they (appellant and the accu sed persons) succeeded in injuring him with Khukuri, dao, lathi hammer etc. and killed him in front of the Samity Office. The appellant and the accused persons , it is alleged, brought the dao, khukri, hammer etc. from the house of accused Nirmal Saikia situated near by the Samity Office. The First Information Report, Ext. 1 was entered in the General Diary of the out post as Entry No. 396 dated 2 2-1-1998 at 2.35 p.m., which was subsequently forwarded to the Station Officer o f Silapathar police station for registering a case. The officer in-charge of Sis iborgaon police out post took up the investigation of the case. Investigation co mmenced. Sub-Inspector, Mr. Rudreshwar Kurmi (PW-15) held inquest over the dead body. The Officer-in-charge of Silapathar police station Sri Mahadeb Gogoi entru sted the investigation to Sri Bidyadhar Panging (PW-14), the Officer-in-Charge o f Sisiborgaon police station. On being registered a case being Silapathar P.S Ca se No. 16 of 1998 under Section 302/34 IPC, Sri Bidyadhar Panging (PW-14), the O fficer-in-Charge of Sisibor police out post during investigation on 22-1-1998 se ized one hammer (with handle) vide seizure memo, Ext. 2 in presence of the witne sses. He also on the same day seized one yellow black check shirt with stains of blood with cut marks, one genji stained with blood, a pair of shoe , a pair of socks and one silver ring found on the dead body of Gobin Bhuyan in presence of witnesses vide seizure memo Ext. 3. He also seized vide Ext.-4, the seizure memo a Khukri with aluminium butt, 20 in length approximately in washed condition a nd a mit dao with bamboo butt about 19 in length in washed condition after sear ch of the house and house premises of Sri Joynath Saikia of Tokubarigaon, P.S-Si lapathar in presence of the witnesses. Dead body of Gobin Bhuyan was sent for po stmortem examination to Dhemaji Civil Hospital and accordingly, Dr. Rukheswar Du tta(PW-18) conducted autopsy on the dead body. The Investigating Officer also in course of investigation got statement of 9(nine) witnesses recorded under Secti on 164 Cr. P.C in connection with the case. After completion of the investigatio n a charge sheet was laid against the appellant and five others, (who faced the trial before the Sessions Court at Dhemaji) under Sections 147,148,149 and 302 I PC. The case having been committed to the court of Sessions, the learned Session s Judge having found materials to presume that the appellant and the accused per sons whose names are indicated above did commit offence under Section 302/34 IPC framed charge accordingly against all of them. Appellant and the accused person s pleaded not guilty to the charge and claimed their trial. 4. Prosecution to bring home the charge against the appellant and t he accused persons examined 18 witnesses in all including the Magistrate who rec orded the statement of the witnesses under Section 164 Cr. P.C, the doctor who c onducted autopsy on the dead body of Gobin Bhuyan and the Investigating Officers of the case. The Trial court after meticulous consideration of the facts, evide nce on record both oral and documentary recorded conviction as against this pres ent appellant alone and accordingly convicted him under section 302 IPC and sent enced as indicated above. However, the learned Sessions Judge for want of eviden ce acquitted the rest of the accused persons who faced the trial. 5. We have heard Mr. N. Das, learned counsel for the appellant as w ell as Mr. D. Das, learned Public Prosecutor, Assam for the State respondent. 6. The primary issue before us in this appeal is whether the impugn ed judgment and order of conviction and sentence rendered by the learned Session s Judge, Dhemaji would be sustainable in law and stand on the way of appellant’s acquittal in view of evidence available on record. On this issue Mr. N. Das, le arned counsel for the appellant while arguing severely criticized it contending inter alia that the learned trial Judge committed grave error in convincing the appellant resting on unreliable testimony and, for that, the same cannot sustain in law. In order to sustain his contention, Mr. N. Das, learned counsel for the appellant led us primarily through the evidence of Sri Naren Bhuyan (PW-5), bro ther-in-law of the deceased Gobin Bhuyan who claimed to be the eye witness to th e occurrence, whose evidence, the prosecution mostly relied on. 7. In this appeal we have a long list of witnesses numbering 18, am ong whom Bidyadhar Panging (PW-14), Rudreswar Kurmi (PW-15) and Kamala Kanta Bor a (PW-16) are Police Officers while Sri Badan Bora (PW-17) and Dr. R. Dutta (PW- 18) are the Magistrate and the Medical Officer, who recorded the statement of so me of the witnesses under Section 164 Cr. P.C and conducted autopsy on the dead body of Gobin Bhuyan on police requisition respectively. Dilip Kr. Bhuyan (PW-1) is the informant of this case and he lodged the F.I.R, (Ext. 1) on the basis of the information supplied by one Numuram Lahan alise Anup Lahan and another tha t the appellant and the accused persons beat and killed his brother Gobin Bhuyan . The evidence of Pranab Bhuyab (PW-2) and Tikiri Bhuyan (PW-3) appear to us not relevant since they stated nothing about the case. Witnesses Ukil Chutia (PW-6) and Joy Kanta Chutia (PW-7) both heard about the fight which to our considered view appear to be not relevant for the purpose of bringing complicity of the app ellant. Witness Fuleshwar Chutia (PW-8), Baikuntha Chutia (PW-10), Hareshwar Chu tia (PW-11), Suneshwar Chutia (PW-12) and Rohini Bhuyan (PW-13) all stated to he ar that Gobin Bhuyan, the deceased had been killed. Therefore, from their eviden ce we are unable to decipher about the involvement of the appellant. 8. Witness Bakul Saikia (PW-4) though appears to be an eye witness at the trial turned hostile to the prosecution. So among the witnesses, witness Naren Bhuyan (PW-5) appears to be an eye witness to the occurrence. Now, how far his evidence would be relevant for the purpose of bringing home the charge unde r Section 302 Cr. P.C against the appellant. 9. Before adverting to the merit of the testimony of PW-5, we like to scrutinize the cause of death of Gobin Bhuyan. Death of Gogin Bhuyan is, howe ver, not denied. From the First Informant Report (Ext. 1) it would appear to us that the appellant in association of other accused persons who are acquitted by the trial court for want of evidence beat and killed Gobin Bhuyan on 22-1-1998 a t about 11.30 a.m. To ascertain the cause of death of Gobin Bhuyan, evidence of Dr. R. Dutta (PW-18) would be relevant. Dr. R. Dutta (PW-18) testified that on 23-1-1998 he was serving as Medical and Health Officer at Dhemiji Civil Hospital . On that day he conducted autopsy on the dead body of Gobin Bhuyan on police re quisition in connection with Silapathar P.S Case No. 16 of 1998 under Section 3 02/34 IPC escorted and identified by UBC. Golok Doley and discovered a sharp cut injury in the occipital region cutting the occipital bone and occipital lobe o f the brain tissues of size … x 3 x 1 . The injury was ante mortem in nature. In his opinion the cause of death was due to shock and haemorrhage. He also sta ted in his evidence that injury discovered on the dead body was sufficient to ca use death in the ordinary course of nature. He further stated that timely treatm ent could have saved the life of Gobin Bhuyan. So, from the testimony of this wi tness it would appear to us that the injury discovered on the dead body was rece ived while Gobin Bhuyan was alive. His death was due to shock and haemorrhage on account of sustention of sharp cutting injury in the occipital region cutting o ccipital bone and occipital lobe of the brain tissues. Evidence of PW-18 without any ambiguity whatsoever speaks of murder of Gobin Bhuyan. 10. Now, the question that poses for consideration is, who was the a ssailant of Gobin Bhuyan, the deceased. On this point, we may turn to the evide nce of Naren Bhuyan (PW-5), who claimed to be the eye witness. Issue before us i s whether his testimony can be relied on and the impugned judgment and order of conviction and sentence be affirmed. 11. Section 134 of the Evidence Act speaks of number of witnesses. I t says No particular number of witnesses shall in any case be required for the proof of any fact . Therefore, Section 134 speaks of that no particular number o f witnesses shall be in any case be required for the proof of any fact. The test imony of a single witness if believed, is sufficient to establish any fact. Evid ence is to be weighed and not counted. There is no rule of law that uncorroborat ed testimony of witness cannot be accepted. The rule, if any, is a rule of prude nce. The evidence of a witness may be wholly reliable or wholly unreliable. It m ay also be neither wholly reliable nor wholly unreliable. A single witness may b e relied without corroboration while unreliable testimony of witness is liable t o be rejected outright. In certain cases testimony of a witness, however, cannot be relied upon without corroboration. 12. In our present case we have found that witness Bakul Saikia (PW- 4) was a possible eye witness but turned hostile. He at the trial deviated rathe r resiled from his previous statement recorded under Section 161 Cr. P.C. This witness in examination-in-chief testified that on the day of occurrence he was s itting in the courtyard of Sisiborgaon Samabai Samity Office at about 10.30-11 a .m. There were 10-12 persons among whom Gobin Bhuyan, the deceased was one of th em. While he was sitting, he saw Gobin Bhuyan going along the PWD road with Ranj it Saikia. At that time Ukil Chutia(PW-6) shouted that a fight was going on. He saw Gobin Bhuyan coming towards them in a run but he was unable to reach them. H e fell down in a drain. He further stated that he did not see who pursed Gobin B huyan. At this stage the prosecution declared him hostile in view of his previou s statement recorded under Section 161 Cr. P.C. Evidence of a hostile witness is not always to be discarded wholly. The portion of the evidence which can lend s upport to the case of the prosecution may be taken into consideration. But from a scrutiny of the evidence of PW-4, we do not find anything in support of the pr osecution case except the confrontation made by the prosecution with his previou s statement. His evidence would therefore, be wholly unreliable. 13. We have already stated herein before that Naren Bhuyan (PW-5) cl aims himself to be an eye witness. Now, how far his testimony can be relied upon in view of evidence of Joy Kanta Chutia (PW-7) and Bidhyadhar Pangin (PW-14), t he Investigating Officer, who prepared the sketch map of the place of occurrenc e. Naren Bhuyan (PW-5) testified that the occurrence took place about two years back and on that day he was sitting in the in front of co-operative office for s un bath. At that time Gobin Bhuyan, the deceased and one Bakul Saikia were also sitting with them. Ranjit Saikia came and called Gobin Bhuyan away. He went to a shop in order to take betelnut. He heard hue and cry and saw Ranjit Saikia, Bha bendra Saikia and Pratap Saikia leaving that place. Gobin Bhuyan was lying in in jured condition in the drain situated in the front of the cooperative society of fice. He saw appellant cutting Gobin with a khukri. However, Ranjit, Pratap and Bhabendra called Pranab away. He also testified that Ranjit, Pratap, Bhabendra a nd Pranab had mit dao, iron rod with them. He went to Gobin Bhuyan in a run and saw bleeding injury in his person. In cross-examination this witness stated that at the time of occurrence he was taking betelnut at Chichi Chariali. The shop b elonged to Gobin Chutia. He also stated that at the vicinity of the place of occ urrence there were residences of many people, numbering 100 to 150. He also stat ed that people of the vicinity of the place of occurrence saw the incident. This witness, however, in his cross-examination denied that Chichi Chariali is one f urlong away from the co-operative office. 14. With the aid of evidence of Joy Kanta Chutia (PW-7) and the evid ence appearing in cross-examination of PW-5, Mr. N. Das, learned counsel for the appellant strenuously argued before us that PW-5 cannot be branded as an eye wi tness to the occurrence since at the time of occurrence he was one furlong away from the co-operative office, therefore, he would not have opportunity to witnes s the occurrence which happened in front of the cooperative society. Mr. N. Das, learned counsel for the appellant also in support of his contention relied on t he sketch map of the place of occurrence prepared by the Investigating Officer, Sri Bidhydhar Pangin (PW-14). In the sketch map ’ka’ indicates the ditch situate d by the side of the PWD road where dead body of Gobin Bhuyan was found lying. T he place appears to have situated at a distance of 20 ft. from he Samabai Samity Office marked as ’Gha’. ’Ga’ indicates Sisiborgaon Chariali, which is 130 yard s away from the place of occurrence. Sri Baikuntha Chutia (PW-10) also stated th at the distance between Sisibor Chariali and their Samabai Samity office would b e one furlong. Mr. N. Das, learned counsel for the appellant, therefore, taking note of the evidence as indicated above argued that the evidence of PW-5 cannot be relied since he would not be able to witness the occurrence from a distance o f one furlong. The learned Sessions Judge recorded conviction of the appellant m ostly relying in the evidence of PW-5. Evidence of PW-5, therefore, in our consi dered view, in view of the other attending facts and circumstances and evidence on record cannot be relied on so as to rope the appellant under Section 302 IPC. As it appears, the evidence of the testimony of this witness appears to be whol ly unreliable basing which no conviction can be awarded. We are, therefore, cons trained to accept the submission of Mr. N. Das, learned counsel for the appellan t. 15. We have already indicated herein before that most of the witness es except PW-4, PW-5, PWs-15 to 18 heard about killing of Gobin Bhuyan. But in t heir evidence nothing is indicated from whom they heard so. 16. Section 60 of Evidence Act deals with the subject of hearsay evi dence. The term ’hearsay’ is used with reference to that which is written as wel l as that which is spoken. It denotes the kind of evidence, which does not deriv e its value from the credit to be given to the witness himself but rests also in part on the competency of some other person. Herein, in our case all the witnes ses indicated above minus PW-4, PW-5 and PWs 15 to 18 stated in their evidence t hat they heard about the killing of Gobin Bhuyan, but from whom they heard had n ot been indicated in their evidence, therefore, their evidence cannot be admissi ble in view of the fact that such information solely rest within the knowledge o f the other person(s). Hearsay evidence is that evidence which comes indirectly, i.e. to say which comes not from the knowledge of the person who deposed it bu t through other person. 17. Admissibility of hearsay evidence is dealt with by the Apex Cour t in the following cases : (1) State of A.P Vrs. Patnam Anandam; reported in (2005) 9 SCC 237. (2) Subhash Harnarayanji Laddha Vrs. State of Maharashtra; reported in (2006) 1 2 SCC 545. (3) Rajendra Prabhu Chikane and Another Vrs. State of Maharashtra and Others; r eported in (2007) 13 SCC 511. In the cases (supra), the Apex Court held that no value can be a ttached to it, since the witness would depose that he heard has no direct knowle dge about the fact. 18. Apart from the above in our considered view the prosecution case considerably suffers in the context of the injuries sustained by the deceased. PW-18, Dr. R. Dutta during autopsy discovered only one sharp cut injury in the o ccipital region cutting occipital bone and occipital lobe of the brain tissues m easuring … x 3 x 1 but none of the witnesses, PW-5 in particular did not stat e that the appellant dealt a khukri blow on the head of the deceased. His catego rical evidence is that he saw Pranab Saikia in the act of cutting Gobin with khu kri. On the other hand PW-4, Sri Bakul Saikia, who turned hostile to the prose cution while stating before the I.O about the occurrence said that he had seen P ranab Saikia felling Gobin in the drain in front of the Samabai Samity Office ha cking him in the neck with khukri. But, interestingly, the doctor who conducted autopsy on the dead body of Gobin did not discover any injury on the neck of the deceased. So on this count also the prosecution suffers to a great extent. That apart, none of the prosecution witnesses saw PW-5 in front of the Samabai Samit y. 19. Further, in our considered view prosecution case also suffers an other jolt on account of withheldment of a material witness, which raises an adv erse presumption against it. Dilip Kr. Bhuyan (PW-1), the informant of the case testified that one Numuram Lahan @ Anup Lahan and another informed him that sons of Joynath Sarma had beaten his brother Gobin Bhuyan, and accordingly requested him to proceed to thana. In view of the above, it would have been appropriate f or the prosecution to bring said Namuram & Anup Lahan to the witness box to unea rth the truth. But no attempt was seemed to have made by the prosecution to exam ine him as witness. This inaction on the part of the prosecution also shakes the prosecution case considerably. 20. Mr. N. Das, learned counsel for the appellant as well as learned P.P, Assam submitted before us that the learned trial Judge failed to assess th e importance of the provision of Section 313 Cr. P.C. According to them the lear ned trial Judge failed to examine the appellant and other accused persons with r eference to the incriminating circumstances appearing against them in the eviden ce. Section 313 Cr.P.C requires that every incriminating circumstances appearing in the evidence against the accused must be brought to his/their knowledge for the purpose of enabling him or them personally to explain such circumstances. It appears from the records that the learned Sessions Judge put limited questions to the accused persons including this appellant with reference to the circumstan ces appearing in the evidence of PWs-5, 14 and 18, which in our considered view would not fulfill the object of the Section 313 Cr.P. C. The learned trial Judge , therefore, appears to have not followed the provisions of Section 313 Cr. P.C. 21. Since the evidence of PW-5 does not appear to us as reliable evi dence, we do not consider it appropriate to affirm the conviction and sentence a warded by the trial court to the appellant. Since a cluster of doubt creep in, i n his evidence, therefore, we have no other option than to acquit the appellant on the benefit of doubt. We accordingly do so. 22. The impugned judgment and order of conviction and sentence is ac cordingly set aside and quashed. Appellant is acquitted. He be set at liberty fo rthwith, if he is not wanted in any other case.