Admissibility of hearsay evidence and the exceptions to the hearsay rule.

H. Baruah, J.

1. Appellant was an accused before the Ad hoc Additional Sessions Judge, Darrang, Mangaldoi in Sessions Case No. 145 (DMFT)/2001. He was charged for an offence punishable under Section 302, IPC by the Ad hoc Additional Sessions Judge, Darrang, who found him guilty and convicted for the offence under Section 302, IPC to undergo life imprisonment and to pay a fine of Rs. 2,000/- in default R.I. for three months.

2. Feeling aggrieved by the judgment and order of conviction, so rendered by the learned Ad hoc Additional Sessions Judge dated 7.3.2002, appellant filed this instant appeal challenging its legality and correctness from Jail.

3. Briefly stated, the prosecution case runs as follows :

Deceased Maniram Deka was the uncle of the appellant. Both the appellant and the deceased were in their paddy field and both came together home. While the deceased was busy in washing his hands and feet at the tube well, appellant suddenly came with an axe and dealt axe blows on the neck of the deceased causing deceased's instantaneous death near the tube well. It is to be noted that occurrence took place on 7.2.2001 at about 12 noon. The First Information Report, having been lodged by PW 4, Police registered a case under Section 302, IPC and commenced investigation. Circle Officer conducted inquest on the death body of the deceased. The dead body was thereafter sent for post-mortem examination. At the closure of the investigation, a charge-sheet was laid against the appellant under Section 302, IPC. Acharge was framed under Section 302, IPC. Appellant pleaded not guilty and claimed his trial. At the conclusion of the trial, appellant was convicted as above.

4. Argument was heard at length from Mr. S.C. Biswas, learned Amicus Curiae as well as Mr. K.A. Mazumdar, learned P.P. for the State of Assam.

5. Altogether six witnesses were examined to prove the charge under Section 302, IPC against the appellant. They are Dr. Kamala Kt. Goswami (PW 1), Surendra Deka (PW 2), Ajit Goswami (PW 3), NilaKt. Deka (PW 4), Mani Ram Deka (PW 5) and Gauri Kt. Kalita (PW 6). The trial Court also examined Smt. Sashi Prava Deka, daughter of the deceased as CW-1. From the perusal of the evidence of the witnesses examined by the prosecution, it is noticed that PW 2, PW 3, PW 4 and PW 5 were not the eye-witnesses to the actual occurrence. All of them heard about the killing of the deceased by the appellant with the help of an axe. Therefore, the evidence of all the four witnesses named above can be termed as 'hearsay' in respect of the factum of killing of the deceased by the appellant. From their evidence, it is also found that after hearing the fact of killing, they all went to look at the deceased, and ascertain the truthfulness of the fact so reported to them. On their arrival, they saw cut injury over the neck of the deceased and also found tying up of the appellant by the villagers against an electric post. PW 2 Shri Surendra Deka also deposed that FIR being lodged, Police came for investigation and seized an axe vide Exhibit 2, the seizure memo in his presence, wherein he put his signature Exhibit 2(1). PW 5 Mani Ram Deka also affirmed by his evidence that police seized an axe vide Exhibit 2 wherein he too put his signature Exhibit 2(2). Factum of seizure of an axe has also been testified by PW 6 Gauri Kt. Kalita, the investigating officer of this case.

6. Therefore, from the testimony of the above four witnesses minus the 'hearsay' part we have found their evidence corroborative in the context of receipt of injury on the neck of the deceased and also to the factum of seizure of an axe by PW 6. Apart from that PW 5 Mani Ram Deka also speaks for about an extra judicial confession made by the appellant. This witness P W 5 in his evidence categorically stated that when asked, appellant told him that he cut the deceased. This piece of extra judicial confession according to the learned Amicus Curiae cannot be taken into consideration and acted upon s