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2015 Supreme(Gau) 1217
Gauhati High Court
Indira Shah, J.
Ha Tadok - Appellant
Versus
State of Arunachal Pradesh - Respondent
Crl. A No. 1(AP) of 2015
Decided On : 24-04-2015
For the Appellant : Mr. Tony Pertin.
For the Respondent: Mr. K.Tado
Headnote:
Indian Penal Code, 1860 – Section 304 and 326 – Criminal Procedure Code, 1973 – Sections 313, 164, 161, 263(h), 262, 265, 263(g), 161 - Assaulted inflicting knife blows - Severe injuries in his stomach - Offence of voluntarily causing grievous hurt by dangerous weapon – Appeal against conviction - Accused appellant assaulted deceased inflicting knife blows causing severe injuries in his stomach - An FIR being lodged by victim himself Officer-in-charge of Police Station registered a case under section - Immediately police rushed to district hospital at where victim was admitted for treatment - Statement of victim and other witnesses available there were recorded - He received telephonic information from district hospital that a patient has come to hospital with a wound in his body - On receipt of information he went to hospital and found victim in causality room of hospital - He also found and at hospital - According to PW8 victim told him that accused had stabbed him in his stomach by means of a knife - He also told him that in evening after watching TV in house of when he was returning home suddenly appeared before him and assaulted him - He noticed injuries in stomach of the victim - According to him victim was conscious and was able to speak - Victim was carried to hospital at mid-night and then police was called at - Doctor told them that injured person should be taken to - He stated about oral dying declaration of deceased stating that injured told him that accused caused injury to him – Held, statement of victim was available in case diary and neither FIR was properly proved nor dying declaration or statement of deceased recorded under section were exhibited - Prosecution could establish that deceased sustained injuries in his stomach - He was referred to hospital at for better treatment but on way to hospital he succumbed to his injuries - Thus, prima facie prosecution could establish that death of the decease was homicidal in nature - When there was no eye witness to occurrence prosecution ought to have exhibited dying declaration of deceased and to prove FIR in accordance with law - It is also noticed that learned trial court has relied upon statement of witnesses recorded under section as well as under section - Statement of witnesses under section or are not substantive evidence - Remission of case will not amount to filling up of lacunae by prosecution since FIR/dying declaration as well as statement of victim were already on record - This matter is remanded back to learned trial court with a direction to learned Sessions Judge West Sessions Division to re-examine who purportedly recorded dying declaration of deceased and who brought FIR lodged by deceased to station - It is hereby made clear that defence should be given an opportunity to further cross-examine - Appeal Dismissed.
2. I have heard Mr. Tony Pertin, learned counsel appearing for the appellant and Mr. K. Tado, learned P.P., appearing on behalf of the State of Arunachal Pradesh.
3. The prosecution case, in brief, is that on 13.6.2007, the accused appellant Ha Tadok assaulted the deceased Jogesh Dolley inflicting knife blows causing severe injuries in his stomach. An FIR being lodged by the victim himself, the Officer-ih-charge of the Ziro Police Station, registered a case under section 326 IPC. Immediately police rushed to the district hospital at Ziro where the victim was admitted for treatment. The statement of the victim and other witnesses available there were recorded. On the basis of the FIR as well as the statement of the witnesses including the victim, the accused appellant was arrested. The victim was referred to the Naharlagun General Hospital but on his way to Naharlagun General Hospital, he succumbed to his injuries.
4. An inquest on the dead body of the deceased was conducted but it was not subjected to post-mortem examination. On completion of the investigation, charge sheet under sections 326/304, IPC was laid against the accused appellant.
5. During the trial, the accused pleaded not guilty to the charge framed against him under section 304, IPC and claimed to be tried.
6. Altogether 13 witnesses were examined by the prosecution. The accused in his statement recorded under section 313, Cr.PC denied all allegations leveled against him and pleaded that he is innocent. He took the plea of alibi, however, did not adduce any defence evidence.
7. On completion of trial, the learned trial court held the accused guilty under section 304, IPC and passed the impugned judgment of conviction and sentence as stated earlier.
8. It is submitted by Mr. Pertin, the learned counsel for the accused appellant that the prosecution miserably failed to prove the FIR itself.
Moreover, the conviction has been awarded on the basis of only the FIR and dying declaration made by the deceased. There was no eye witness to the occurrence. The prosecution also failed to establish the motive of the crime.
9. Per contra, learned Public: Prosecutor, Mr. K. Tado, has submitted that conviction cart be maintained on the basis of dying declaration alone. In this case, the conviction of the accused appellant is on the basis of dying declaration and circumstantial evidence.
To appreciate the rival submissions, let me discuss the evidence on record.
10. PW1, Smt. Haa Yapi, deposed that in the evening of 12.6.2007, the victim Jogesh Doley came to her house in seriously injured condition. He fell down and her husband removed him to the hospital. In cross-examination, she stated that she cannot say who assaulted the victim.
11. PW2, Shri Haa Tanak, turned hostile to the prosecution. He stated in his exaanination-in-chief that he removed the victim to the hospital and the victim was bleeding from stomach but he denied that the victim told him that he was stabbed by the accused. PW3, Smt. Haa Yali, wife of the accused also turned hostile to the prosecution.
12. PW4, Shri Taba Tasar, stated that he shifted the injured person to the hospital at Hapoli. He had noticed the injuries in the stomach of the deceased. One, Manila (PW11), who was an electrician, also accompanied him to the hospital at Hapoli. In cross-examination, he stated that the victim was unconscious and was not able to speak properly.
13. P.W. 5, Dr. (Mrs.) Radhe Angku, who was posted at District Hospital at Ziro attended the victim. She deposed that the victim was brought in the hospital with grievous stabbed injuries and he was referred to Itanagar hospit
