RAM KUMAR BASNETT Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Judgment and Order on Sentence dated 06 -08 -2013 convicting the Appellant under Section 302 of the Indian Penal Code (for short "IPC"), and sentencing him to undergo simple imprisonment for life and to pay a fine of Rs.5,000/ - (Rupees five thousand) only, with a default stipulation, in S.T. Case No.18 of 2011, in the Court of the Learned Sessions Judge, South and West Sikkim at Namchi, has been assailed in the instant Appeal.

(2.) The Appellant's grievance before this Court is that his conviction is based solely on the uncorroborated statements of the child witnesses, P.W.6 and P.W.7, by placing reliance on their statements under Section 164 Code of Criminal Procedure, 1973, (for short "Cr.P.C.") ignoring the fact that those statements had been demolished in their cross -examination in the Court. That in any event the statement of a witness recorded under Section 164 of the Cr.P.C. cannot be used as substantive evidence and is only for the purpose of contradiction and corroboration. To buttress this argument, reliance was placed on George and Others vs. State of Kerala and Another(1998) 4 SCC 605 and R. Shaji vs. State of Kerala(2013) 14 SCC 266. Emphasis was also laid on the fact that P.W.6 and P.W.7 were child witnesses, but their evidence was not closely scrutinised to rule out tutoring. Alagupandi alias Reliance was placed on the decision of Alagupandian vs. State of Tamil Nadu(2012) 10 SCC 451; Radhey Shyam vs. State of Rajasthan(2014) 5 SCC 389 and State of Rajasthan vs. Chandgi Ram and Others(2014) 14 SCC 596. Referring to the unusual behaviour of P.W.5 inasmuch as he took twenty -five minutes to reach the place of occurrence (for short "P.O.") after learning of the assault, it was put forth that this circumstance has also not been given any consideration by the Learned Trial Court. That, Exhibit 23, the FIR, has been lodged on hearsay. It was further canvassed that chemical analysis of M.O.I, the weapon of offence, could not link the weapon to the murder of the victim as no blood of human origin was detected therein, the question of disintegration of the blood being immaterial as the Analyst has made no such observation. Consequently, the recovery of M.O.I under Exhibit 12 the statement of the Appellant under Section 27 of the Indian Evidence Act, 1872 (for short "the Evidence Act"), has no evidentiary value. On the above counts reference was made to the decision in Nirmal Kumar vs. State of U.P.1993 Supp (1) SCC 510; Sk. Yusuf vs. State of West Bengal(2011) 11 SCC 754 and State of M.P. vs. Kriparam(2003) 12 SCC 675. It is the further case of the Appellant that the evidence of P.W.6 and P.W.7 nowhere reveals that the Appellant was inside the house with the victim at the time of the alleged incident. It was also urged that even assuming that the victim did utter the words "Baba ley katyo" does not necessarily mean that "your Father cut me" as translated, as P.W.6 and P.W.7 have not stated that the victim had told them that their father had chopped her, besides which the Prosecution failed to lead evidence to establish that P.W.6 and P.W.7 used to address their father as "Baba". As the evidence of the child witnesses P.W.6 and P.W.7 are uncorroborated, mere recovery of M.O.I does not assist the Prosecution case, consequently the Learned Trial Court has erred in convicting the Appellant and the impugned Judgment and Order on Sentence be set aside.

(3.) Learned Additional Public Prosecutor per contra contended that the evidence of P.W.1 has to be read alongside the evidence of P.Ws 5, 6 and 7 which establishes the hand of the Appellant in the crime. Reliance was also placed on the evidence of P.W.8 and P.W.9 witnesses to the disclosure statement of the Appellant, which cogently established recovery of M.O.I. That, merely because blood was not detected on the 'khukuri', does not absolve the Appellant of the heinous offence, since it is not disputed that the CFSL, Kolkata, examined M.O.I after about one month of the incident, on this count, reliance was placed on Mritunjoy Biswas vs. Pranab alias Kuti Biswas and Another(2013) 12 SCC 796. That obviously with the passage of time the chemical composition of the blood would have disintegrated but non -detection of human blood does not prove the innocence of the Appellant, on this submission, reliance was placed on Sunil Clifford Daniel vs. State of Punjab(2012) 11 SCC 205. Apart from the evidence of P.W.6 and P.W.7 who were at the spot, the Appellant's statement in Exhibit 12 disclosing the place where M.O.I was concealed by him is clearly admissible under Section 27 of the Evidence Act. On this point, L earned Additional Public Prosecutor placed reliance on Praveen Kumar vs. State of Karnataka(2003) 12 SCC 199 and Nagaraj vs. State represented by Inspector of Police, Salem Town, Tamil Nadu(2015) 4 SCC 739. That, P.W.6 and P.W.7 have admitted that the statement of the victim "Baba ley katyo" were heard by them and is, therefore, a cogent dying declaration made by the victim when conscious. To buttress his submission, reliance was placed on Atbir vs. Government of NCT of Delhi(2010) 9 SCC 1 (Paras 17 and 22) and Parbin Ali and Another vs. State of Assam(2013) 2 SCC 81. At the same time, there was no reason for P.W.6 and P.W.7 to falsely implicate their father, while their evidence of his involvement has remained consistent. Support on this aspect was drawn from the Judgment of the Hon'ble Apex Court in Bishan Singh and Others vs. The State of Punjab(1974) 3 SCC 288. That the Appellant's involvement in the offence is apparent from his absconsion from the P.O. on 09 -06 -2011, after the incident and his arrest by the Police only on 13 -06 -2011, after being traced by them. Vouching for the veracity of Exhibit 23, it was submitted that the evidence of the Investigating Officer reveals that the assault took place on 09 -06 -2011 and the FIR Exhibit 23 was lodged on 09 -06 -2011 itself, at around 2130 hours as reflected in Exhibit 24 after Lok Bahadur Basnett (P.W.16) learnt of the incident. It was also urged that although P.W.6 had been declared hostile it is not necessary that his entire evidence is beyond the scope of consideration, and if it is cogent and corroborated by other evidence the statement of the hostile witness can still be a ground for holding the accused guilty of the crime committed. Hence, considering the grounds enumerated above, it was prayed that the Appeal be dismissed.