Sunil Kumar Sinha, C.J.—State is in Appeal before us.
2. The Appeal is directed against the judgment of acquittal dated 21-11-2014 passed in Sessions Trial Case No. 13 of 2014 by the Session Judge, West Sikkim at Gyalshing. By the impugned judgment, the Respondents have been acquitted of the charges framed u/Ss. 302/34, IPC.
3. Facts, briefly stated, are as under :-
3.1 Deceased Arun Rai and the three eye-witnesses, namely, Dipen Manger (PW-4), Pravin Rai (PW-10) and Keshav Rai (PW-11), were belonging to SDF party and the Respondents were belonging to SKM party. SDF (Sikkim Democratic Front) and SKM (Sikkim Krantikari Morcha) are the two rival political parties in the State of Sikkim. Date of incident, i.e. 4-3-2014 was being celebrated as the '' foundation day'' ? of SDF Party, for which some programme was organized at Jorethang.
3.2 The case of the prosecution is that on 4-3-2014 at about 12.30 p.m., when the deceased and the eye witnesses were waiting for conveyance near Gelling Phatak for going to Jorethang, the Respondents came there and assaulted the deceased by lathis and stones who sustained multiple injuries. Deceased thereafter went to the house of his grandfather, Mandhoj Gurung (PW-6), which was nearer to the place of occurrence. Then he telephoned Hari Bdr. Gurung (PW-5) who further informed Diwash Rai (PW-13) and then Suresh Kr. Gurung (PW-12) was also informed. They reached to the house of Mandhoj Gurung (PW-6) and took the deceased to the Soreng Police Station, where a written report (Exhibit-7) was scribed by Suresh Kr. Gurung (PW-12) at the instance of deceased and was produced before the SHO (PW-19), who registered formal FIR (Exhibit-18) at about 14:25 hrs.
3.3 Deceased was then sent to PHC, Soreng. He was examined by Dr. Birendra Subba (PW-17). He found following injuries on the person of the deceased :-
1. Laceration measuring 3 cm x 2 mm on right parietal scalp.
2. Bruise which were multiple on back region.
3. Subdermal haematoma on lefe eye (orbital lining).
4. Haematoma measuring about 8 cm x 5 cm on left parietal scalp.
These injuries were caused by wooden stick and fist. MLC report is Exhibit-14. Deceased was referred for C. T. Scan.
3.4 Deceased was admitted to Central Referral Hospital (CRH). The records of CRH would show that at the time of admission he was unconscious and in the entire duration of being admitted he never regained consciousness and expired on 11-3-2014 at 09.30 p.m.
3.5 Autopsy was conducted by Dr. A. K. Samanta (PW-18), who found on internal examination that there was extra dural haemorrhage over left fronto-parietal area of the brain. It was of the size 7 cm x 6 cm and 5 cm thickness. There was also a cut injury on the scalp bone, of size of 7 cm x 6 cm having a linear fracture. Sub-scalpal haematoma was found over temporo parietal area and vertex. He opined that the cause of death was coma as a result of cranio-cerebral injuries sustained due to head injury and complications thereof. All injuries were ante-mortem. Post-mortem report is Exhibit-16.
3.6 Case of the prosecution was based on eye-witnesses- account of Dipen Manger (PW-4), Pravin Rai (PW-10) and Keshav Rai (PW-11) as also the dying declarations made by the deceased in Soreng Police Station and before Dr. Birendra Subba (PW-17), who conducted MLC examination.
3.7 Out of above three eye-witnesses, Dipen Manger (PW-4) and Pravin Rai (PW-10) turned hostile and they did not support the case of the prosecution. Third eye-witness Keshav Rai (PW-11), though was not declared hostile, also did not depose against the Respondents. The Sessions Court, therefore, discarded their evidence. The Sessions Court also discarded the dying declarations. The Respondents, therefore, were acquitted. Hence this Appeal.
4. Mr. J. B. Pradhan, learned Public Prosecutor, firstly contended that the Sessions Court erred in law in not accepting those portions of the deposition of the hostile witnesses, which were true and were supporting the case of the prosecution. He took us to various paragraphs of the evidence of Dipen Manger (PW-4) and Pravin Rai (PW-10). He placed reliance on Koli Lakhmanbhai Chanabhai v. State of Gujarat (1999) 8 SCC 624 : (AIR 2000 SC 210) and Sathya Narayanan v. State represented by Inspector of Police (2012) 12 SCC 627 : (AIR 2012 SC (Supp) 674).
5. Both the judgments cited by learned Public Prosecutor reiterate a settled principle of law that evidence of even hostile witnesses to the extent the same support the prosecution version would be admissible in trial and if corroborated by other reliable evidence, can be relied on to convict the accused. It is a settled law that corroborated part of evidence of hostile witness regarding commission of offence is always admissible and merely because the witness was declared as hostile, there is no need to reject the evidence in to. In other words, the evidence of a hostile witness can be relied upon at least to the extent it supported the case of the prosecution.
6. We have gone through the evidence of two hostile witnesses namely, Dipen Manger (PW-4) and Pravin Rai (PW-10). Dipen Manger (PW-4), though has deposed that he was present at the place of occurrence waiting for a vehicle to go to Jorethang and all of sudden the accused persons came there and started assaulting them but he did not witness the actual assault to deceased Arun Rai. In cross-examination by the defence, he clearly deposed that he was tutored by Mahesh Gurung to give false statements to the police and also before the Magistrate. He clarified that the statement he gave before the Magistrate was false and was based on what he was told to state by Mahesh Gurung. He in clear words deposed that in fact, he did not know anything about the case as he was neither present at the place of occurrence nor did he saw the alleged incident. Almost similar is the position with Pravin Rai (PW-10). He also in the cross-examination by the defence admitted that in fact he did not witness the incident at all.
7. Mr. Pradhan has argued that one thing was established by the evidence of these witnesses that they were present at the place of occurrence, therefore, to that extent their evidence was admissible. Even we take that these two witnesses were present at the place of occurrence, by taking so nothing goes in favour of the prosecution unless it is established that in fact they witnessed the quarrel in which the deceased was assaulted by the respondents. The evidence of a witness has to be read as a whole. How the evidence of such a witness can be relied on who clearly deposed in the cross-examination that he was giving a false statement at the instance of a third person. We are of the view that the learned Sessions Judge fully justified in rejecting the testimonies of these hostile witnesses.
8. Keshav Rai (PW-11) is real brother of the deceased. He was also cited as an eye-witness. He deposed in examination-in-chief that he was present at the place of occurrence at Gelling Phatak. Accused Suren Rai (A-1) and Khem Bahadur Gurung (A-2) along with other unknown boys came towards them and started assaulting his brother Arun Rai with danda and stones. He thereafter ran away towards his house. But in cross-examination he deposed that '' It is true that in fact the two accused persons namely Suren Rai and Khempey Gurung were not present in the group of boys that I saw at Gelling Phatak assaulting my deceased brother and I have falsely cited their names on the instruction and instigation of said Mahesh Gurung'' . Thus, even if he was not declared hostile, his entire evidence was totally demolished by his above categorical admission. Learned Sessions Judge has taken all these points into consideration and has discarded his testimony. We also think why a person will not tell the correct story regarding the assult given to his brother. For these reasons, we cannot accept the evidence of PW-11.
9. Mr. Pradhan, then contended that the written report (Exhibit-1) and the formal FIR (Exhibit-18) were the dying declarations in which the deceased took the names of two respondents (A-1 and A-2). He cited the judgments of Mannu Raja and another v. The State of Madhya Pradesh (1976) 3 SCC 104 : (AIR 1976 SC 2199), Gulam Hussain and another v. State of Delhi (2000) 7 SCC 254 : (AIR 2000 SC 2480) and Anjanappa v. State of Karnataka (2014) 2 SCC 776 : (AIR 2014 SC (Supp) 1526).
10. We have gone through the judgments cited by Mr. Pradhan. We have no doubt about the propositions that after making the statement before the police or lodging of the FIR, the victim succumbs to his injuries, the statement can be treated as a dying declaration and is admissible u/S. 32(1) of the Evidence Act. It is a well settled law that conviction can be based on a dying declaration recorded properly when the declarant is in a fit mental condition to make it. It should be truthful and voluntary. Minor discrepancy in the time of recording of dying declaration or of like nature creates no dent in the prosecution story which is, otherwise, substantiated by reliable evidence.
11. Having considered the principles laid down in the above judgments, we have considered the evidentiary value of Exhibit-7, which is stated to be a dying declaration scribed by Suresh Kr. Gurung (PW-12) at the instance of deceased. According to prosecution, Suresh Kr. Gurung (PW-12) had accompanied the deceased to the Soreng Police Station. In Police Station, the deceased, Arun Rai, requested him to scribe the FIR and he scribed the same as per his instructions in Police Station itself, He has proved his signature as also the signature of the deceased on the written FIR (Exhibit-7). In cross-examination, he denied the suggestion and it is not a fact that he did not scribe Exhibit-7 and he voluntarily added that he scribed Exhibit-7 at Soreng Police Station in the presence of O/C Soreng PS. PI Karma Denzongpa (PW-19) was O/C, Soreng PS at the relevant time. He did not depose about the fact that Exhibit-7 was scribed before him by Suresh Kr. Gurung (PW-12) at the instance of deceased. He simply deposed that he received a written FIR from the deceased and registered Soreng PS Case No. 8(03)2014 u/Ss. 341, 324 and 34, IPC. In cross-examination he further clarified that he did not know where or when Exhibit-7 was prepared. He clearly deposed that Exhibit-7 was not prepared in the police station nor it was prepared in his presence. When the complainant arrived at the police station, he was already in possession of Exhibit-7. This creates a shadow of doubt on Exhibit-7 as also on the testimony of Suresh Kr. Gurung (PW-12), who claims to scribe the same.
12. Mr. Pradhan has argued that registration of formal FIR on the basis of above written FIR was also a dying declaration. We are unable to accept the argument as it was not proved by the prosecution that the deceased himself had made any declaration in the police station before the SHO (PW-19), who heard it and reduced into writing. On the contrary, the case of the prosecution is that a written report was received by SHO (PW-19), who registered the formal FIR (Exhibit-18) and referred the deceased to the hospital. The position would have been different if the SHO (PW-19) would have asked the deceased about the incident and then have lodged the formal FIR after taking his version. Thus, the formal FIR can also not be taken as a dying declaration.
13. Mr. Pradhan, then argued that the deceased had also made declaration before Dr. Birendra Subba (PW-17), who conducted his medical examination. He stated that he was assaulted by some persons including Suren Rai (A-1) and Khem Bahadur (A-2).
14. Mr. K. T. Bhutia, learned Senior Counsel appearing on behalf of Respondents, has argued that this was not a declaration made by the deceased. Doctor has written in the MLC report that the deceased and his party had stated that the deceased was assaulted by some SKM supporters in which he could recognize two persons namely Suren Rai (A-1) and Khem Bahadur (A-2). Thus, it was a declaration which was made by party members and not by the deceased himself.
15. We have seen the contents of the MLC report. Dr. Birendra Subba (PW-17), before examining the deceased, has written the following note in the MLC report (Exhibit-14) :-
'' As per the history given by patient and his party, he was waiting for a cab to Jorethang, to attend SDF day ceremony at around 12 p.m., at Gelling Phatak dated 4-3-2014 in which he was attacked by some people of SKM supporters, where he could recognize two persons named Suren Rai (relative) & Khem Bahadur Rai.''
Contents of the above note would show that it was written not only on the declaration given by the deceased but also on the declaration of his party supporters. Admittedly, the deceased and his friends Hari Bdr. Gurund (PW-5) and Suresh Kr. Gurung (PW-12) had accompanied him to the hospital. They all were belonging to one party (SDF) and if such a declaration was made by party members of the SDF including the deceased, it cannot be held that it was a dying declaration of the deceased admissible u/S. 32(1) of the Evidence Act. Apart from the above, we find that name of Khem Bahadur Rai has been written in Exhibit 14, who was not an accused and accused No. 2 was Khem Bahadur Gurung. We also see a note below the format of MLC report, which reads as under :-
'' Note: Medical Officer is requested to note the account given by the injured person as to the cause of the injuries and make it clear that such account came from the lips of the injured person himself/herself.'' ?
According to this also, any account given by the deceased at the time of his examination should have come from his own lips and not from the lips of other persons who were his supporters of SDF party and had accompanied him to the hospital. Thus, on above accounts also declaration said to be made before the doctor by the deceased appears to be shadowed. Therefore, the three dying declarations were not proved beyond any reasonable doubts.
16. Mr. Bhutia has argued that when the deceased firstly met Mandhoj Gurung (PW-6), who was none else than his grandfather, he never disclosed the names of the assilants to him.
17. We have gone through the evidence of Mandhoj Gurung (PW-6). The argument of Mr. Bhutia finds support from his evidence that the deceased who firstly met him did not disclose as to who had assaulted him or how the assault took place. In normal human conduct the deceased when had gone for a shelter to the house of his grandfather, would have disclosed the names of the assailants, which he did not do.
18. We noted that though the prosecution came with the case that the deceased had telephonically informed Hari Bdr. Gurung (PW-5), who later on informed Diwesh Rai (PW-13) and then Suresh Kr. Gurung (PW-12) was informed in the same manner, details of telephonic calls were not collected by the prosecution.
19. We also note that according to Hari Bdr. Gurung (PW-5) the deceased informed him about the incident taking names of Suren Rai (A-1) and Khem Bahadur Gurung (A-2), which he further communicated over telephone to Diwash Rai (PW-13) but Diwash Rai (PW-13) does not depose that he was also informed the names of assailants by Hari Bdr. Gurung (PW-5). Suresh Kr. Gurung (PW-12) also deposed that he received a telephone call from Diwash Rai (PW-13) that the deceased was assaulted by SKM party supporters and was taking shelter in the house of Mandhoj Gurung (PW-6). Here also names of A-1 and A-2 were not disclosed PW-12. All these circumstances are against the prosecution and create doubt on its entire case which appears to be one of party rivalry.
20. For all these reasons, we do not find any substance in the Appeal. The Appeal is, accordingly, dismissed.
