Gauhati High Court
Page No.# 1/17 vs The State Of Assam on 9 May, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/17
GAHC010090352022
2025:GAU-AS:5804-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/53/2022
RITU RAMCHIARY
BAKSA, MUSHALPUR, ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MRS. JUSTICE Marli Vankung
Advocate for the Appellant : Shri D. K. Bagchi, Amicus Curiae.
Advocate for the Respondent : Ms. S. Jahan, Addl. PP, Assam.
Date of Hearing : 06.05.2025
Date of Judgment : 09.05.2025
Judgment & Order
(S.K. Medhi, J.)
The instant appeal has been preferred from jail against the judgment
dated 20.12.2021 and order dated 21.12.2021 passed by the learned Sessions
Judge, Baksa, Mushalpur in Sessions Case No. 54/2021, sentencing the
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appellant to undergo Rigorous Imprisonment (RI) for life and fine of Rs.1000/-
in default of which RI of 2 months. The same involves the killing of the father of
the informant by the appellant.
2. The criminal law was set into motion by lodging of an Ejahar by PW 3
alleging, inter alia, that on 04.03.2021 at about 5:30 p.m. when his father Jogen
Boro (deceased) was sleeping inside the house, the appellant had trespassed
into the house and had assaulted his father by repeatedly beating him on the
left side of his head by a ' bhuluka bah' (a kind of bamboo) and when the
informant had reached his home at about 6:00 p.m., he had seen his father
lying dead on the bed and accordingly had informed the villagers. Though the
Ejahar does not bear a date, the registration of the same in the format would
show that the information was received at 11:00 p.m. on 04.03.2021 and the
occurrence has been stated to be at 5:30 p.m. of 04.03.2021.
3. Based on the aforesaid Ejahar, the formal FIR was registered and
investigation was done in which the statements of the relevant witnesses were
recorded, the accused/appellant was arrested, Sketch Map of the place of
occurrence was prepared, body of the deceased was sent for post-mortem and
seizures were made. After completion of all the formalities, the charge-sheet
was laid. Based on the same, two charges were framed against the appellant
and on denial of the same, the trial had begun in which the prosecution had
adduced evidence through 6 nos. of prosecution witnesses.
4. PW 1 is the Doctor, who had conducted the post-mortem over the body of the
deceased. He had deposed that on 05.03.2021, he had conducted the aforesaid
post mortem in which injuries were found on the head and face of the deceased
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which appeared to have been caused by a blunt weapon. For ready reference
the injuries found are extracted herein below:
"Wounds: A lacerated injury over upper lip size 3cm x 1.5 cm x 1 c.m
2. lacerated injury over forehead towards left size 10 cm x 4 cm x to the deep into
bone.
3. lacerated injury size: 10cm x 5c.m x to the deep into left eye.
4. left eye in complexity damage. No active bleeding from wound is noticed.
Wound-margins are irregular. Only tissue bridges are seen some places."
5. PW 2 is the daughter-in-law of the deceased, who is also the younger sister
of the appellant. She had deposed that on the date of the incident, her father-
in-law was sleeping inside the house when the appellant had come and entered
the house and had assaulted her father-in-law with a bamboo stick, which she
had witnessed and thereupon she had raised an alarm. The villagers had
accordingly come to the place of occurrence and apprehended the appellant and
he was handed over to the police. She had deposed that her father-in-law had
sustained injuries on his head and face and had died immediately. In the cross-
examination, she had clarified that the appellant is her own elder brother who
used to scold her father-in-law harshly and had assaulted him out of anger.
6. PW 3 is the informant, who had deposed that at the relevant time, he was
not present at the house and was in a Shradha ceremony in the village. He had
deposed that the appellant had assaulted his father on the head and face with a
piece of 'bhuluka bah' (a kind of bamboo) while he was sleeping and he was
informed about the incident by his wife over telephone. He had accordingly
hurried home and found his father lying dead on the bed and his head and face
were smeared with blood. Thereafter the villagers had apprehended the
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appellant and the police had come and arrested him and the dead body was
taken to the Tamulpur Police Station. He had also deposed that his wife had
witnessed that his father was beaten by the accused to death. The Ejahar was
proved as Ext. 2 and he is also a witness to the Inquest Report as well as the
Seizure List which were proved as Exts. 3 and 4. In his cross-examination, he
had however clarified that he is not an eyewitness to the incident.
7. PW 4 is a co-villager, who had deposed that on the date of the incident, on
hearing hue and cry, he along with the other neighbours had come to the place
of occurrence and saw the appellant running away with a lathi from the house.
He had also deposed of finding the deceased lying dead inside the house with
injuries on his head. He had also deposed that the villagers had apprehended
the appellant from the village and he was handed over to the police. In his
cross-examination, he had stated that he did not witness the assault and that
his house was at a distance of half a kilometre from the house of the informant.
He had however clarified that he had seen the appellant running away from the
house at the time of occurrence. The other suggestions were denied by him.
8. PW 5 is another co-villager whose house was in the neighbourhood. He had
deposed that on the date of the incident, he had seen the appellant fleeing
away with a lathi on his hand and upon entering the house of the informant he
found that his head was smashed and was lying dead on the bed and blood
coming out from his head. Thereafter, the villagers had apprehended the
appellant and he was arrested by the police. In his cross-examination, he had
clarified of not being an eyewitness to the occurrence. He had however denied
the suggestion that he did not see the appellant fleeing away from the house of
the deceased with a lathi in his hand.
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9. PW 6 is the police personnel, who had conducted the investigation. He had
deposed that on getting a telephonic information, a GD Entry no. 64 was
recorded on 04.03.2021 and he had proceeded to the place of occurrence
accompanied by staff. He had found the dead body of the deceased on the bed
inside the house and there was a pool of blood. He had also deposed that the
face of the deceased was found to be injured. He had also deposed of recording
the statements of the relevant witnesses, sending the body of the deceased for
Post-Mortem Examination, preparing Sketch Map, apprehending the accused,
making seizuers and completion of all other formalities whereafter the charge-
sheet was laid. In the cross-examination, he had however admitted of not
sending the seized bamboo piece for FSL or any serological test or even
fingerprint test. He had however denied the suggestion that the investigation
was not done properly.
10. After recording of the evidence, the incriminating materials were put to the
appellant in his examination under Section 313 of the Cr.PC. (corresponding to
Section 351 of BNSS). It is however interesting to note that, against Q.No.1
which was on the aspect of trespassing into the house of the deceased and
assaulting him, the appellant had admitted the same and had added that he
was not in a conscious state. The other questions were also responded in the
affirmative.
11. Based on the aforesaid materials including the response by the appellant
in his examination under Section 313 of the Cr.PC. (corresponding to Section
351 of BNSS) the impugned judgment and order has been passed which is the
subject matter of challenge in the present appeal.
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12. We have heard Shri D. K. Bagchi, learned Amicus Curiae for the appellant.
We have also heard Ms. S. Jahan, learned Addl. PP, Assam for the State
respondent.
13. Shri Bagchi, the learned Amicus Curiae has submitted that the materials
are insufficient to come to a conclusion of guilt of the appellant and therefore
the impugned judgment is liable to be interfered with. He has raised serious
doubts on the incident itself. He has submitted that the Ejahar was not dated
and from the deposition of the PW 6 (IO), the date itself becomes doubtful
inasmuch as the IO stated in his deposition that the incident was on 05.03.2021
whereas from the undated Ejahar and the format of the FIR, it appears that the
occurrence was on 04.03.2021. He has submitted that the GD Entry, which was
recorded on 04.03.2021 on the basis of a telephonic information was not proved
in accordance with law.
14. The learned Amicus has also severely criticized the claim of PW 2 to be an
eyewitness to the incident. He has submitted that though PW 2 had claimed to
be an eyewitness, there are inconsistencies with the version of PW 2 and those
of the other witnesses. It is submitted that while the PW 2 had deposed of
witnessing the appellant assaulting her father-in-law with ' bhuluka bah', the
other witnesses had stated that it was a lathi. He has submitted that there is
vast difference between the two and therefore the testimony of the PW 2
appears to be doubtful.
15. Regarding the testimony of PW 3, the learned Amicus has submitted that
at the relevant time, PW 3 was not present at the place of occurrence and was
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in a Shradha ceremony. He has however submitted that it is not specified as to
where the Shradha ceremony was. He has also submitted that the aspect of
being informed by his wife (PW 2) of the incident by telephone has not been
stated in the FIR. He has added that the FIR was lodged long after 5 hours of
the incident and therefore non-mentioning of the details would be fatal to the
case of the prosecution. The aspect of the deposition of PW 3 that the body of
the deceased was found smeared with blood is also not trustworthy inasmuch
as there is no seizure made of the wearing apparels or the bed-sheet on which
the body of the deceased was lying.
16. As far as the deposition of PW 4 is concerned, the learned Amicus has
submitted that the said PW 4 in his cross-examination had admitted that his
house was at a distance of half a kilometer from the place of occurrence and
therefore there is serious doubt to his claim of hearing a hue and cry. He has
also submitted that the time of occurrence was 5:30 p.m and therefore he raises
doubt over the claim of witnessing the appellant fleeing away as it was dark.
He has also submitted that PW 4 did not mention of any lathi being seen on the
hands of the appellant while running away.
17. The learned Amicus has submitted that though in the response to the
examination under Section 313 of the Cr.P.C. (corresponding to Section 351 of
BNSS) the appellant has admitted regarding the assault made by the lathi, he
has submitted that such admission is not evidence and cannot be the sole
consideration to come to a conclusion of guilt and thereby convict and sentence
the appellant. He has submitted that there is no motive involved in the incident
and the Seizure List is itself doubtful.
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18. The learned Amicus has relied upon the judgment of the Hon'ble Supreme
Court in Vyas Ram @ Vyas Kahar & ors. Vs State of Bihar reported in
(2013) 12 SCC 349 on the aspect of defective investigation and contradiction
of witnesses.
19. Per contra, Ms. Jahan, learned APP, Assam has submitted that the
conclusion arrived at by the learned Trial Court is based on relevant materials
and therefore there is no merit in the appeal. She has submitted that the
prosecution has been successful in proving the case beyond all reasonable
doubt, more so when there is an unshaken testimony of PW 2 who is an
eyewitness.
20. The learned APP has submitted that the testimony of PW 2 is consistent
with her statement made to the police under Section 161 Cr.P.C. (corresponding
to Section 180 of BNSS) and there is no contradiction. She has also submitted
that in the cross-examination, the testimony of PW 2 has remained unshaken
and therefore her testimony inspires confidence and is trustworthy. She has
submitted that the contention advanced by the learned counsel for the appellant
that there is a discrepancy of the murder weapon is without any basis. She has
submitted that the description of the murder weapon has been said to be
'bhuluka bah' and therefore describing the same to be a bamboo stick by certain
witnesses would not raise any doubt on its use, more so, when the said weapon
was seized by the police as shown by the appellant. She has submitted that the
testimony of a single eyewitness is sufficient, if it inspires confidence and in the
instant case, the deposition of PW 2 appears to be trustworthy.
21. As regards the contention that the FIR did not have all the details, the
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learned APP has submitted that it is a settled position of law that an FIR may
not be an encyclopedia of the full facts and is only an information to set the
criminal law into motion. The learned APP has also submitted that the evidence
of PW 4 and PW 5 support the testimony of PW 2 inasmuch as both the PW 4
and PW 5 had deposed of witnessing the appellant fleeing away from the place
of occurrence. She has submitted that the injuries described by the witnesses
matches with the medical evidence. She has also submitted that recording of
the GD Entry, as would appear from the records was at 8:30 p.m. on
04.03.2021 and there is no contradiction or inconsistency in that regard. She
has also submitted that the response by an accused in his examination under
Section 313 Cr.P.C. (corresponding to Section 351 of BNSS) is a relevant piece of
evidence and can certainly be used to corroborate the prosecution case. As
regards the submission made that the murder weapon was not sent for any
scientific test including serological test, the learned APP, Assam has submitted
that such failure would not be fatal inasmuch as there is an eyewitness in the
instant case in the form of PW 2 whose testimony is trustworthy.
22. In support of her submission, the learned APP has relied upon the
following decisions:
(i) Kartik Malhar Vs State of Bihar reported in
(1996) 1 SCC 614.
(ii) Chandan Vs. the State (Delhi Admn.) reported in (2024)
4 SCR 94.
(iii) Javed Alam Vs State of Chhattisgarh reported in (2009)
6 SCC 450.
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23. The case of Kartik Malhar (supra) has been cited to bring home the
contention that the testimony of a single eyewitness can be the sole
consideration for coming to a conclusion of guilt of the accused. In this regard,
the relevant observations of the Hon'ble Supreme Court are extracted herein
below:
"11. We have already discussed above that it is open to the courts to record a
conviction on the basis of the statement of a single witness provided the evidence of
that witness is reliable, unshaken and consistent with the case of the prosecution. The
case of the prosecution cannot be discarded merely on the ground that it was sought
to be proved by only one eye witness, nor can it be insisted that the corroboration of
the statement of that witness was necessary by other eye-witnesses. The instant case,
it may be pointed out, does not strictly fall within the category of those cases where
only one witness is present and the case of the prosecution is sought to be proved by
the statement of that witness alone. Here, three of the witnesses were produced but
two of them turned hostile leaving the third alone and, therefore, on the principles
already discussed, if the remaining eve witness is found to be trustworthy, it becomes
the duty of the Court to convict the accused as observed by this Court in Vadivelu
Thevars quoted below:
"But, where there are no such exceptional reasons operating, it becomes the
duly of the court to convict, if it is satisfied that the testimony of a single
witness is entirely reliable. We have, therefore, no reasons to refuse to act upon
the testimony of the first witness, which is the only reliable evidence in support
of the prosecution."
24. The case of Chandan (supra) has been cited to bring home the
contention that where eyewitness is available, the requirement of motive may
not be there as such requirement may be there only in case of circumstantial
evidence.
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25. The case of Javed Alam (supra) has been cited to bring in the aspect of
res-gestae. It is submitted that the said principle would apply so far as the
evidence of PW 4 and 5 are concerned which includes the aspect of witnessing
the appellant fleeing away from the place of occurrence.
26. The rival submissions have been duly considered and the materials placed
on records have also been carefully examined.
27. In the instant case, admittedly, there is an eyewitness in the form of PW
2. It is seen that PW 2, who is the daughter-in-law of the deceased is also the
own sister of the appellant and it becomes highly improbable that a sister would
depose falsely against her own brother. Moreover, it is seen that the evidence of
PW 2 has remained unshaken in the cross-examination and, as rightly pointed
out by the learned APP, her version in her statement before the police in her
examination under Section 161 of the Cr.P.C. (corresponding to Section 180 of
BNSS) appear to be consistent with her deposition as a witness. We have also
found that the version of PW 2 is supported by the evidence of PW 4 and PW 5
who had deposed of witnessing the appellant fleeing away from the place of
occurrence with a lathi in his hand. The nature of the assault and the injury
sustained as deposed by the PW 2 and the other ocular evidence of PWs 3, 4
and 5 is also supported by the medical evidence including the evidence of the
doctor, who had deposed as PW 1. The use of a ' bhuluka bah' (bamboo stick)
also appears to be consistent with the nature of the injuries detected by the PW
1, doctor who had conducted the postmortem and had deposed and opined that
a blunt weapon was used for causing the assault.
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28. The aspect that the FIR did not contain the full details and narration of the
events is well settled by a number of decisions of the Hon'ble Supreme Court in
which it has been laid down that an FIR did not be an encyclopedia of the facts.
In this regard, one may gainfully refer to the decision of Superintendent of
Police, CBI Vs. Tapan Kumar Singh , reported in (2003) 6 SCC 175 in which the
Hon'ble Supreme Court has laid down as follows:
"20. It is well settled that a First Information Report is not an encyclopedia,
which must disclose all facts and details relating to the offence reported. An
informant may lodge a report about the commission of an offence though he
may not know the name of the victim or his assailant. He may not even know
how the occurrence took place. A first informant need not necessarily be an eye
witness so as to be able to disclose in great details all aspects of the offence
committed. What is of significance is that the information given must disclose
the commission of a cognizable offence and the information so lodged must
provide a basis for the police officer to suspect the commission of a cognizable
offence. At this stage it is enough if the police officer on the basis of the
information given suspects the commission of a cognizable offence, and not
that he must be convinced or satisfied that a cognizable offence has been
committed. If he has reasons to suspect, on the basis of information received,
that a cognizable offence may have been committed, he is bound to record the
information and conduct an investigation. At this stage it is also not necessary
for him to satisfy himself about the truthfulness of the information. It is only
after a complete investigation that he may be able to report on the truthfulness
or otherwise of the information. Similarly, even if the information does not
furnish all the details, he must find out those details in the course of
investigation and collect all the necessary evidence. The information given
disclosing the commission of a cognizable offence only sets in motion the
investigative machinery, with a view to collect all necessary evidence, and
thereafter to take action in accordance with law. The true test is whether the
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information furnished provides a reason to suspect the commission of an
offence, which the concerned police officer is empowered under Section 156 of
the Code to investigate. If it does, he has no option but to record the
information and proceed to investigate the case either himself or depute any
other competent officer to conduct the investigation. The question as to
whether the report is true, whether it discloses full details regarding the manner
of occurrence, whether the accused is named, and whether there is sufficient
evidence to support the allegations are all matters which are alien to the
consideration of the question whether the report discloses the commission of a
cognizable offence. Even if the information does not give full details regarding
these matters, the investigating officer is not absolved of his duty to investigate
the case and discover the true facts, if he can."
29. The aforesaid view has been reiterated in many subsequent decisions,
including Constitutional Bench case of Lalita Kumari Vs. Govt. of Uttar
Pradesh, reported in (2014) 2 SCC 1. In this connection, it would be
beneficial to refer to a recent case of the Hon'ble Supreme Court, Amish
Devgan vs UOI reported in (2021) 1 SCC 1 wherein the Hon'ble Supreme
Court has observed:
"113. Acronym FIR, or the First Information Report, is neither defined in the Criminal
Code nor is used therein, albeit it refers to the information relating to the commission
of a cognisable offence. This information, if given orally to an officer in-charge of the
police station, is mandated to be reduced in writing. Information to be recorded in
writing need not be necessarily by an eye-witness, and hence, cannot be rejected
merely because it is hearsay. Section 154 does not mandate nor is this requirement
manifest from other provisions of the Criminal Code. Further, FIR is not meant to be a
detailed document containing chronicle of all intricate and minute details. In Dharma
Rama Bhagare vs. State of Maharashtra, (1973) 1 SCC 537, it was held that an FIR is
not even considered to be a substantive piece of evidence and can be only used to
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corroborate or contradict the informant's evidence in the court."
30. As regards the other argument that the date was not written of the Ejahar,
the same would not have much of a substance inasmuch as, in the registration
of the FIR, the date when the information was received, including the time has
been specifically written as 11:00 p.m. of 04.03.2021 and the date and time of
occurrence has also been written as 04.03.2021 at 5:30 pm. The aspect of the
deposition of the IO is also relevant in this regard which has been taken into
consideration.
31. We are of the view that the GD Entry 64 was recorded on 04.03.2021 and
the date 05.03.2021 which was mentioned by PW 6 is only with regard to the
date when he was posted as In-charge of the Gandhi Bari Police Outpost under
the Tamulpur PS. In any case, we are of the considered view that the other
materials on record would amply demonstrate that the occurrence was on
04.03.2021 at about 5:30 p.m. and there is no inconsistency at all.
32. We have also noted that the evidence of PW 2 who is an eyewitness has
remained unshaken and is also corroborated by the other evidence.
33. We are also of the view that the testimony of PW 4 and 5 so far as
witnessing the appellant running away from the place of occurrence with a lathi
in his hand would form a part of the same transaction and would be relevant as
per Section 6 of the Indian Evidence Act (corresponding to Section 4 of BSA) on
the principle of res-gestae. For ready reference, Section 6 of the Indian
Evidence Act is extracted herein below:
"6. Relevancy of facts forming part of same transaction - Facts
which, though not in issue, are so connected with a fact in issue as to
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form part of the same transaction, are relevant, whether they occurred at
the same time and place or at different times and places."
34. The principle of res gestae has been elaborately explained by the Hon'ble
Supreme Court in the case of Krishan Kumar Malik vs. State of Haryana
reported in (2011) 7 SCC 130 and the relevant observations are extracted
herein below:
"35. Black's Law Dictionary defines Res Gestae as follows:
(Latin: "things done") The events at issue, or other events
contemporaneous with them In evidence law, words and
statements about the res gestae are usually admissible under a
hearsay exception (such as present sense impression or excited
utterance)."
36. The said evidence thus becomes relevant and admissible as res
gestae under Section 6 of the Act.
37. Section 6 of the Act has an exception to the general rule where-under,
hearsay evidence becomes admissible. But as for bringing such hearsay
evidence within the ambit of Section 6, what is required to be established
is that it must be almost contemporaneous with the acts and there could
not be an interval which would allow fabrication. In other words, the
statements said to be admitted as forming part of res gestae must have
been made contemporaneously with the act or immediately thereafter. ..."
35. A submission has been made with regard to the aspect of not sending the
seized piece of bamboo for forensic examination and serological test. We are
however of the view that when an eyewitness is available whose testimony is
unimpeached, such aspect may not be held to be fatal to the case of the
prosecution.
36. By submitting that it is a cardinal principle of criminal jurisprudence that
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proof has to be beyond all reasonable doubts, the learned Amicus Curiae has
strenuously argued that there were doubts on the prosecution case the benefit
of which should go to the appellant. It is however a settled law that the doubts
which may be created have to be reasonable and appeal to a prudent person. It
has been clarified that fanciful doubts or lingering suspicion would not be
sufficient. In this connection, it would be gainful to refer to the observations
made by the Hon'ble Supreme Court in the case of State of Punjab vs
Karnail Singh reported in (2003) 11 SCC 271 which are extracted herein
below:
"12. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful
doubts or lingering suspicion and thereby destroy social defence. Justice cannot be
made sterile on the plea that it is better to let hundred guilty escape than punish an
innocent. Letting guilty escape is not doing justice according to law. (See : Gurbachan
Singh v. Satpal Singh and others, (AIR 1990 SC 209)). Prosecution is not required to
meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok
Kumar Srivastava, (AIR 1992 SC 840)). A reasonable doubt is not an imaginary, trivial
or merely possible doubt, but a fair doubt based upon reason and common sense. It
must grow out of the evidence in the case. If a case is proved perfectly, it is argued
that it is artificial; if a case has some flaws inevitable because human beings are prone
to err, it is argued that it is too imperfect. One wonders whether in the meticulous
hypersensitivity to eliminate a rare innocent from being punished, many guilty persons
must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish.
(See Inder Singh and another v. State Delhi Admn.), (AIR 1978 SC 1091). Vague
hunches cannot take place of judicial evaluation. "A judge does not preside over a
criminal trial, merely to see that no innocent man is punished. A judge also presides to
see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in
Stirland v. Director of Public Prosecution (1944 AC (PC) 315)) quoted in State of U.P. v.
Anil Singh, (AIR 1988 SC 1998). Doubts would be called reasonable if they are free
from a zest for abstract speculation. Law cannot afford any favourite other than truth."
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37. In the conspectus of the aforesaid discussion and the materials on record,
we are of the view that the judgment and order dated 21.12.2021 passed by the
learned Sessions Judge, Baksa, Mushalpur in Sessions Case No. 54/2021 do not
warrant any interference.
38. The appeal is accordingly dismissed.
39. Send back the TCR.
40. For the valuable assistance rendered by Shri Bagchi, the learned Amicus
Curiae, we record our appreciation and she would be entitled to the prescribed
fee.
JUDGE JUDGE
Comparing Assistant
