Kamal Khudal vs The State Of Assam

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 470 OF 2015

KAMAL KHUDAL …APPELLANT Versus

STATE OF ASSAM …RESPONDENT

JUDGMENT

J.B. PARDIWALA, J. :

1. This appeal, by special leave, is at the instance of a convict

accused of the offence of murder and is directed against the judgment

and order passed by the Gauhati High Court dismissing the Criminal

Appeal No. 86 of 2010 by which it affirmed the judgment and order of

conviction passed by the Additional Sessions Judge (FTC), Sivasagar

in the Sessions Case No. 57 of 2008 dated 10.06.2010.

2. It appears from the materials on record that in all three accused

persons were put on trial in the Court of the Additional Sessions

Judge (FTC), Sivasagar, including the appellant herein. All the three Signature Not Verified

accused were charged with the offence punishable under Section 302 Digitally signed by DEEPAK SINGH Date: 2022.07.14 15:43:49 IST Reason:

read with Section 34 of the Indian Penal Code (for short, “IPC”). The

1 trial court, vide its judgment dated 10.06.2010, held the appellant

herein along with one Munna Bhoi (A­1) guilty of the offence of murder

punishable under Section 302 IPC and sentenced them to undergo life

imprisonment with fine of Rs. 2,000/­ each and in default of payment

of fine, further rigorous imprisonment for a period of two months. The

third co­accused Bipon Bhoi was given the benefit of doubt and he

came to be acquitted.

3. The case of the prosecution may be summarized as under:

4. On 15.07.2007 at about 7 o’clock in the morning the appellant

herein along with the co­accused (Munna Bhoi) came to the house of

the deceased, namely, Uttam Dutta. The accused persons took the

deceased along with them for the purpose of paddy plantation. When

the deceased left with the accused persons in the morning, his brother

Utpal Dutta was present at the house. The deceased did not return to

his house till late evening. The family members of the deceased got

worried and started searching for him. The dead body of the deceased

was found lying in a drain of Duribam Tea Estate with various injuries

on the body, including burn injuries. No sooner the dead body of the

deceased was recovered, then his brother Utpal Dutta went to the

police station and registered the First Information Report (FIR). The

FIR was registered as Kakatibari P.S. Case No. 24/2007 for the offence

punishable under Section 302 of the IPC.

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5. Upon registration of the FIR, the investigation started. The

investigation revealed that the co­accused Munna Bhoi was running a

liquor (local) factory situated adjacent to his paddy field. The

deceased after working for sometime in the paddy field accompanied

the accused persons to the liquor factory. Something went wrong while

the accused persons and the deceased were in the liquor factory. The

locals working in the vicinity of the liquor factory heard some

commotion coming from the liquor factory. After sometime, the locals

saw the deceased coming out of the factory with burn injuries on his

body. One of the prosecution witnesses Hanu Khetrapal (PW­2), who

was present in the nearby agricultural field, enquired with the

deceased as to what had happened. At that point of time, the

deceased is said to have informed the PW­2 that the accused persons

had poured hot lali (raw material used for preparing local liquor) on

his body as a result of which he had suffered burn injuries. Saying

so, the deceased left and thereafter his dead body was recovered from

the drain of Duribam Tea Estate.

6. During the course of investigation, the investigating agency

arrested three persons, namely, Munna Bhoi, Kamal Khudal

(appellant herein) and Bipon Bhoi. On completion of the investigation,

charge sheet was filed against all the three accused for the offence of

murder. As the offence was exclusively triable by the Sessions Court,

3 the Magistrate in whose court the charge sheet was filed committed

the case to the court of the Sessions Judge, Sivasagar under Section

209 of the Code of Criminal Procedure, 1973 (for short, “CrPC”). The

trial court proceeded to frame charge against all the three accused

persons for the offence punishable under Section 302 read with

Section 34 of the IPC vide order dated 11.09.2008.

7. It appears from the materials on record that the prosecution in

all examined 8 witnesses. At the end of the trial, the trial court held

the appellant herein, along with Munna Bhoi, guilty of the offence of

murder of the deceased and sentenced them to undergo life

imprisonment with fine of Rs. 2,000/­ each. As noted above, the third

accused, namely, Bipon Bhoi came to be acquitted.

8. The appellant herein being dissatisfied with the judgment and

order of conviction passed by the trial court preferred the Criminal

Appeal No. 86 of 2010 in the Gauhati High Court. The co­accused

Munna Bhoi also preferred an appeal which was registered as the

Criminal Appeal No. 87 of 2010. Both the appeals were heard together

and by a common judgment dated 20.12.2013 both were ordered to be

dismissed.

9. In such circumstances referred to above, the appellant is here

before this Court with the present appeal. We are informed that the

co­accused Munna Bhoi thought fit not to question the judgment of

4 the High Court.

SUBMISSIONS :­

10. Mr. Vivek Sharma, the learned counsel appearing for the

appellant, vehemently submitted that the trial court committed a

serious error in holding the appellant accused guilty of the offence of

murder. He would submit that the High Court also committed a

serious error in upholding the judgment and order of conviction

passed by the trial court. According to the learned counsel, the case

on hand is one of “not reliable legal evidence”. He would submit that

the entire conviction of the appellant is based on a oral dying

declaration alleged to have been made by the deceased before the PW­

2, namely, Hanu Khetrapal. This so called oral dying declaration of the

deceased ought not to have been relied upon by the trial court as well

as by the High Court as the same does not inspire any confidence. The

learned counsel would submit that as a rule of prudence the courts

below should have insisted for corroboration before relying upon an

oral dying declaration which otherwise is a weak piece of evidence. He

would submit that had the dying declaration been recorded in writing

by an Executive Magistrate some sanctity could have been attached to

the same. However, it would be too dangerous to place any reliance on

an uncorroborated oral dying declaration made before a local person.

11. The learned counsel would further submit that the case at hand

5 is one of circumstantial evidence. Conviction can be based on

circumstantial evidence provided there are incriminating

circumstances pointing only towards the guilt of the accused. He

would further submit that although the first informant, PW­1 Utpal

Dutta (brother of the deceased) has deposed that early in the morning

the accused persons had come at his house and had asked the

deceased to join them for the paddy plantation, yet this circumstance,

by itself, cannot be termed as an incriminating circumstance. It

cannot be said to be a circumstance of last seen together.

12. In such circumstances referred to above, the learned counsel for

the appellant prays that there being merit his appeal, the same may

be allowed and the impugned judgment and order passed by the High

Court as well as by the trial court be quashed and set aside and the

accused appellant be acquitted of the charge of murder.

13. The State of Assam, although served with the notice issued by

this Court, yet thought fit not to oppose the present appeal.

ANALYSIS :

14. Having heard the learned counsel appearing for the appellant

and having gone through materials on record, the only question that

falls for our consideration is whether the High Court committed any

error in dismissing the criminal appeal filed by the appellant herein

against the judgment and order of conviction passed by the trial

6 court ?

15. We must first look into the medical evidence on record. The

prosecution has examined Dr. Nirmal Ch. Chutia (PW­9) as one of its

witnesses to prove the post mortem report of the deceased. Dr. Chutia

at the relevant point of time was serving as the Senior Medical &

Health Officer at the Civil Hospital, Sivasagar. In his examination­in­

chief, he has deposed that the dead body of one Uttam Dutta

(deceased) aged 36 years was brought at the hospital for the purpose

of post mortem. In the post mortem report, the following injuries were

noted :­

“1) External appearance :

A male dead body, aged approximately 36 years, rigormortis present.

2) Wounds :­

There are multiple dark achimost areas—seen on left side of the chest wall, Chest and forehead. Approximately 75% of body surface area are burnt. Superficial skin is burnt off. Wound are antemortem in nature.

3) Cranium and Spinal Canal :

All organ are healthy.

4) Thorax :

Multiple factures on the left side and haemothorax with laceration of left lungs.

5) Abdoman :

Organs are healthy.

7 6) Muscles, bones and joints­­­healthy.”

16. Dr. Chutia (PW­9) further deposed that there were 75% burn

injuries on the body of the victim. The superficial skin was found

burnt. Multiple dark ecchymosis were to be seen on the left side of

the chest and forehead. Ecchymosis means discolouring of skin

resulting from blood underneath. He had deposed that the injuries

were ante mortem in nature. He certified the cause of death due to

shock and haemorrhage resulting from chest & skull injuries and

skull injuries. He had also deposed that multiple injuries on the

thorax of the victim were also noticed.

17. Hanu Khetrapal (PW­2) in his examination­in­chief had deposed

that on the date of incident at about 10 in the morning he was

ploughing his field. He saw that the deceased was also ploughing the

agricultural field of Munna Bhoi along with the other accused persons.

He had deposed that there was a liquor (local) factory owned by

Munna Bhoi situated adjacent to his agricultural field. PW­2 further

deposed that he saw all the accused persons along with the deceased

going towards the liquor factory. After some time, he heard some noise

coming from the factory. The deceased came to the field of PW­2 and

informed him that the accused persons had poured hot lali (raw

material used for preparing local liquor) on his body as a result he had

suffered burn injuries. According to the PW­2, the deceased thereafter

8 left the place. The defence has not been able to elicit anything

substantial in the cross examination of PW­2 rendering his evidence

doubtful in any manner.

18. The trial court placed reliance on the following circumstances, as

noted in para 19 of its judgment, to hold the accused appellant guilty

of the offence of murder:

“(i) Accused Munna and Kamal went to the house of the victim at about 7 a.m. on 15.7.2007 and brought the victim along with him.

(ii) P.W. 2 saw the victim along with all the accused persons in the paddy field of the accused Munna Bhui till 10 a.m. on the date of occurrence. According to P.W. 2 all the accused persons and the victim left the field and went to the liquour factory of the Munna Bhui. He heard some noise there. After a while, the victim returned back and P.W. 2 saw some injury on his body. The victim was in abnormal state at that time.

(iii) The dead body was recovered in a drain of Duribam Tea Estate. P.Ws. have clearly stated that the skin of the victim was removed from the body and according to them, the skin was removed due to burnt injuries caused by bot water.

(iv) The doctor has opined that about 75% of the body was burnt and the superficial skin was burnt off due to application of hot water.

(v) Ext, 1 was prepared on 15.7.2007 by the I.O. had detected burnt injuries on the body of the victim caused by hot water.

(vi) Accused Munna Bhui was arrested on 18.7.2007, accused Bipon was arrested on 19.7.2007 and Kamal was arrested on 23.7.2007. All the accused were absconding themselves in order to avoid arrest.”

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19. The High Court, upon re­appreciation of the entire evidence,

concurred with the reasons assigned by the trial court in its judgment

and order holding the appellant herein guilty of the offence of murder.

The High Court accepted the oral dying declaration to be true and

trustworthy said to have been made by the deceased to the PW­2.

20. We are of the view, having regard to the evidence on record, that

High Court was justified in accepting the oral dying declaration made

by the deceased before the PW­2 as one reliable and inspiring

confidence.

21. The law regarding the nature, scope and value as a piece of

evidence of oral and written dying declarations is now fairly well

settled by various judicial decisions of this Court. A dying declaration,

oral or written, before it could be relied upon, must pass a test of

reliability as it is a statement made in the absence of the accused and

there is no opportunity to the accused even to put it through the fire of

cross examination to test is genuinity or veracity. The court has,

therefore, to subject it to close scrutiny. But once the court is

satisfied that it is a truthful version as to the circumstances in which

the death resulted and the persons causing injuries, the law does not

expect that there should be corroboration before it can be relied upon.

However, if there are infirmities and the court does not find it safe to

base any conclusion on it without some further evidence to support it,

10 the question of corroboration arises.

22. We may refer to one of the decisions of this Court in the case of

Heikrujam Chaoba Singh v. State of Manipur, (1999) 8 SCC 458,

wherein in para 3 this Court observed as under:

“3. An oral dying declaration no doubt can form the basis of conviction, though the Courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability. …”

23. “Truth sits upon the lips of a dying man.”

­ Matthew Arnold

24. The whole idea of accepting a statement in the name of dying

declaration comes from a maxim “Nemo moriturus praesumitur

mentire” which means that a man will not meet his maker with a lie in

his mouth. It is believed that when a man is at the point of death and

when every expectation of this world is gone, it hushes away every

motive of lie.

25. In our view, the oral evidence of the PW­2, namely, Hanu

Khetrapal is quite natural. On the day of occurrence, he was working

in his agricultural field. His presence in his field could be said to be

natural. There is no good reason for Hanu Khetrapal (PW­2) to come

11 before the trial court and depose falsely against the accused persons.

It is not even the case of the accused appellant herein that Hanu

Khetrapal (PW­2) had some axe to grind against him, including the

other co­accused and, therefore, fabricated the entire story of an oral

dying declaration. Besides the same, the oral dying declaration of the

deceased made before Hanu Khetrapal (PW­2) stands corroborated

with the medical evidence on record. The medical evidence on record

would suggest that there were 75% burn injuries on the chest of the

deceased. The burn injuries were suffered by the deceased as the

accused persons are said to have poured hot lali (raw material used

for preparing liquor).

26. We also take notice of the fact that the appellant herein came to

be arrested on 23rd of July, 2007, that is, almost after about 8 days

from the date of incident. He was absconding. He was not available at

his house. The appellant accused in his further statement recorded

under Section 313 of the CrPC has not explained where he was

between 15.07.2007 and 23.07.2007, that is, till the date of his arrest.

This is one another incriminating circumstance and, if taken into

consideration with the other circumstances on record, would bear

some relevance while deciding the guilt of the accused.

27. It appears from the materials on record, more particularly from

the nature of the oral evidence, that something went wrong while the

12 deceased and the accused persons were inside the liquor factory. It

appears to be a case of sudden fight. It could be on account of some

verbal altercation between the deceased and the accused persons

while they were inside the liquor factory.

28. In the overall view of the matter, we are convinced that there is

no good reason to interfere in the present appeal. We do not find any

fundamental or basic infirmity in the impugned judgment of the High

Court going to the root of the matter calling for any interference by

this Court.

29. In the result, this appeal fails and is hereby dismissed.

…………………………………….J. (SURYA KANT)

…………………………………….J. (J.B. PARDIWALA) NEW DELHI;

JULY 14, 2022

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