ENGLISH SHORTHAND DICTATION-411

 

The case of the prosecution in brief is that the appellant had a land dispute with the deceased. The allegation against the appellant is that on 2nd March 2013, he assaulted the deceased. After that, he caught hold of the deceased by her hair and dragged her up to the village pond. The appellant put her head inside the pond water. The deceased was suffocated to death.

The first informant-Raman, PW-4, informed the police that Himani Devi died due to drowning. Accordingly, an FIR was registered. After the completion of the investigation, a chargesheet was filed against the appellant. The¹⁰⁰ prosecution examined ten witnesses. There is no direct evidence. The prosecution relied upon evidence of PW-1, Saloni Devi, the village¹²⁰ officer.

The prosecution case is that the appellant made an extra-judicial confession before the witness. The prosecution relied upon the evidence of PW-5, Chaprasi, the brother of the deceased. According to PW-5, he saw the appellant holding the hair of the deceased and was taking her towards the pond. Though PW-1 was declared hostile, the Trial Court and High Court relied upon a part of her testimony. The Courts also believed the testimony of PW-5.

The learned counsel appearing for²⁰⁰ the appellant as amicus curiae, has taken us through the postmortem report and testimony of relevant prosecution witnesses. Based on the evidence of PW-9, Dr. Ram Kumar, his submission is that the death was due to drowning, and the prosecution²⁴⁰ has not discharged the burden on it to prove that it was a homicidal death. He submitted that evidence of PW-1, who was declared as hostile, cannot be believed as in the examination-in-chief, the witness did not depose that the appellant made a confession of killing the deceased. However, in the cross-examination made by the public prosecutor, the witness purportedly³⁰⁰ stated that the appellant confessed before her about killing the deceased. He submitted that evidence of PW-1 cannot be believed. As regards the evidence of PW-5, he stated that though the witness deposed that he saw the appellant dragging the deceased towards the pond, PW-2 - Bala, who was allegedly present at that time, did not support the prosecution.

Moreover,³⁶⁰ another witness, Lakhan, was allegedly present there and was not examined by the prosecution. He pointed out that the incident happened in the evening and PW-10, Investigating Officer admitted that there is a temple near the house of the deceased⁴⁰⁰ and other people lived nearby. He would, therefore, submit that the prosecution has failed to prove the appellant's guilt beyond a reasonable doubt.

The learned counsel appearing for the respondent State, submitted that in her cross-examination made by the public prosecutor, PW-1 has clearly deposed about the confessional statement made by the appellant. He submitted that evidence of a hostile witness need not be rejected in its entirety and that the Court can always rely upon a part of the⁴⁸⁰ testimony of such a witness.

He submitted that the evidence of PW-5 proves that the appellant was last seen together⁵⁰⁰ with the deceased, and at that time, he was holding the deceased by her hair. He submitted that this evidence is sufficient to hold that the death of the deceased is homicidal. He submitted that in view of the oral testimony of the said two witnesses, the appellant's guilt has been established.

We have carefully perused the evidence of prosecution witnesses and other documents on record. The prosecution is relying upon the extra-judicial confession made by the appellant before PW-1 and evidence of PW-5 of last seen together. The case of the prosecution is that after an altercation with the⁶⁰⁰ deceased in her house, the appellant held the deceased by her hair and dragged her to the village pond. The prosecution is relying upon a site map.

It shows that a road separates the pond and the house of the deceased. The sketch shows the existence of a ridge around the pond and two temples on the ridge of the pond abutting the road. The temples are exactly opposite the house of the deceased. According to the prosecution case, the appellant dragged the deceased by holding her hair from her house up to the pond. Between the house of the⁷⁰⁰ deceased and the pond, there is a road and ridge of the pond.

This means the appellant must have dragged⁷²⁰ the deceased for a considerable distance. The postmortem report records explicitly that no marks of any injury were found on the body of the deceased. In his evidence, PW-9 Dr. Ram Kumar reiterated that there was no injury mark on the body of the deceased. If the prosecution story of the appellant dragging the deceased was true, there would have been some injury on the body of the deceased. Therefore, the absence of any injury marks on the body militates⁸⁰⁰ against the prosecution's case.

Evidence of PW-9 shows that salt water was found in the trachea and lungs of the deceased. Perhaps to find out whether the water found in the trachea and lungs of the deceased was the water⁸⁴⁰ in the pond, samples of water from the pond were collected and sent to the laboratory. That is what PW-10, the Investigating Officer, has stated in paragraph 11 of his deposition. He further stated that the Director of the State Judicial Laboratory returned the samples without testing them on the ground that the cause of death was established in the⁹⁰⁰ postmortem notes.

According to PW-9, the cause of death was due to drowning. However, he was unable to state whether the death was homicidal or accidental. The reason is that it was difficult for him to state whether deceased immersed in water herself or she was forced into water. In fact, in postmortem notes, PW-9 stated that an expert's opinion⁹⁶⁰ should be sought. Admittedly, an expert's opinion was not sought.

Now, we turn to evidence of PW-1. She was a village Kotwal. She was a signatory to the panchnama of the recovery of the dead body and a signatory to¹⁰⁰⁰ the sketch of the site made by the police. In the examination-in-chief, she stated that on the date of the incident, around 7 p.m., the appellant came to her house and stated that his mother had died. She has not deposed in her examination-in-chief that the appellant stated that he had killed the deceased.

A Statement under Section 161 of the Code of Criminal Procedure, 1973 of the witness was recorded by the police. Obviously, as the said witness made¹⁰⁸⁰ a departure from what she had stated in the police statement, at the instance of the public prosecutor, the witness¹¹⁰⁰ was declared hostile. The cross-examination of the witness by the public prosecutor shows that the witness was not confronted by showing the relevant part of her statement recorded under Section 161 of Code of Criminal Procedure.

The witness ought to have been confronted with her prior statement in accordance with Section 145 of the Indian Evidence Act. However, in the cross-examination made by the public prosecutor, the witness accepted the suggestion given by the public prosecutor that the appellant came to her house at 7 p.m. on the date of the incident and told her that he had killed his¹²⁰⁰ stepmother by putting her head into the village pond.