Mohan Kalita @ Mohan Deka v. State of Assam — 1998 DIGILAW 8 (GAU)

D. Biswas, J.- This appeal arises out of judgment of conviction and sentence passed by Additional Sessions Judge, Kamrup, Guwahati in Sessions Case No. 118 (K) of 1993. The lone accused Shri Mohan Kalita alias Mohan Deka was convicted under section 302 IPC and sentenced to imprisonment for life and also to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for a further period of 6 (six) months. 2. Shri Mohan Kalita was charged and tried for murdering Bhabin Chandra Deka on 25.9.90 between 9.30 AM to 10.30 AM at a place known as Ghoraghah within Dagaon village under Rangiya Police Station. 3. The prosecution case, as is revealed, is that Bhabin Chandia Deka, since deceased, had gone to the grazing ground to feed his cattle. At about 10.30 AM, the villagers found him lying on the cattle track m an injured condition. While being shifted to Rangiya Civil Hospital, by the villagers, he succumbed to his injuries at a place known as Baihata Chariali. The ejahar further reveals that Shri Mohan Chandra Kalita had assaulted Bhabin Deka (the deceased) with dao, lathi etc and fled away from the scene. It has been further alleged that the accused wanted to forge a relationship with Smti Alaka Deka, daughter of the deceased Bhabin Deka who had warned him for his misconduct. Because of this, the accused is alleged to have committed the crime. 4. It would appear from the General Diary Entry No. 1047 dated 25.9.90 of Rangiya Police Station that the police first came to know about the occurrence at 11.30 AM from one Satyabrata Kalita and made the aforesaid GD Entry and deputed Shri PC Laskar, the Sub Inspector of Police to investigate the case. The ejahar, Ext 5 was handed over to the Investigating Officer by PW 8 Shri Dharani Deka, son of the deceased, in the afternoon after 4 PM on 25.9.90. It is pertinent to note here that there is no mention of any dying declaration made, by the deceased or of any confessional statement made by the accused both in the GD Entry or in the ejahar. 5. We hove heard the leaned counsel for the appellant as well as the State in details and have also examined the evidence on record. The admitted position is that there is no eye-witness to the occurrence. 5. We hove heard the leaned counsel for the appellant as well as the State in details and have also examined the evidence on record. The admitted position is that there is no eye-witness to the occurrence. The prosecution case is primarily based on dying declaration made by the deceased and also extra judicial confession alleged to have been made by the accused Mohan Kalita. The learned Additional Sessions Judge returned the verdict of guilt relying on the evidence of PWs 2, 3 and 5 in respect of dying declaration and the evidence of PW 6 in respect of extra judicial confession. That apart, he has also taken into consideration the conduct of the accused prior to the occurrence, the evidence on record about the motive and the evidence relating to the leading to the discovery of the 'dab katari' (a sharp cutting weapon) from near the place of occurrence. 6. First, we would like to discuss the evidence relating to dying declaration. It would appear from the evidence of PW 2 Pitamber Deka, PW 3 Bhaskar Deka and PW 5 Kushal Deka that all of them together went to the place where Bhabin was lying in an injured condition. They asked him as to what had happened and, in reply, Bhabin told them that Mohan had 'cut' him. Both PW 2 and PW 3 in course of their cross-examination admitted that Bhabin was senseless/unconscious when they found him and PW 5 Kushal Deka, in course of cross-examination. also admitted a suggestion to the effect that he believes that Mohan had killed 'Deota'. The above evidence of PWs 2, 3 and 5 elicited during the course of cross-examination with regard to the alleged dying declaration sounds a note of discord suggesting a strong possibility of embellishment. 7. In order to better appreciate the evidence relating to dying declaration and to assess the credibility of PWs 2, 3 and 5, we propose to refer to the medical evidence available on record. PW 7, Dr. H. Sarma who had conducted the post mortem examination mentioned of 7 (seven) ante mortem injuries out of which Injury No.6 relates to the brain. Injury No.6 is as follows : "6. The meninges were congested and there was sub-dural and sub-aracenoid haemmorrhagea over the brain." The opinion of the doctor is that death occurred due to coma resulting from the head injuries. Injury No.6 is as follows : "6. The meninges were congested and there was sub-dural and sub-aracenoid haemmorrhagea over the brain." The opinion of the doctor is that death occurred due to coma resulting from the head injuries. In his cross-examination, the doctor PW 7 stated that coma could start immediately after receiving the head injuries. The statement of the doctor further deepened the doubt as to whether Bhabin was in a position to make the dying declaration as alleged. We, therefore, summoned Dr. BC Kakati, Professor and Head of the Department, Neurosurgery, Guwahati Medical College Hospital to tender his expert opinion. Accordingly, the doctor was examined On 8.1.98 as Court witness No.2. His opinion recorded in question and answer form is reproduced below: "Q. Can you tell the Court as to after how much time a man aged 60 years would go in coma after the receipt of the injuries mentioned in the post mortem report and more particularly with reference to injury No.6 ? Ans. After going through the post mortem report it appears to me that the deceased had gone in coma immediately after the impact because of 3 (three) reasons: (1) Considering his age, (2) the severity of injury to the head, bone and brain, and (3) severity of injury on the facial region which will add to the head injury problem because of its close proximate to the brain. Cross examination by the counsel for the appellant There are 3 (three) layers in the brain, namely, (1) Dura, (2) Archnoid and (3) Pia. Archnoid is very close to the brain matter. Meninges consists of 3 (three) layers of the brain close to the brain matter. Sub archnoid layer is very close to the brain. To get a sub archnoid bleeding it must have gone through the brain. Cross examination by the Public Prosecutor Q. I put it to you whether the deceased in the instant case might have taken 15/20 minutes to go in coma after the receipt of the injuries? Ans. After going through the injuries in this particular case, I personally feel that he had gone in coma immediately." 8. The opinion tendered by CW 2 read with evidence of PW 7 clearly establish that the deceased Bhabin was not in a position to speak after receipt of the injuries. Ans. After going through the injuries in this particular case, I personally feel that he had gone in coma immediately." 8. The opinion tendered by CW 2 read with evidence of PW 7 clearly establish that the deceased Bhabin was not in a position to speak after receipt of the injuries. That being the position, we are unable to accept the evidence of PWs 2, 3 and 5 that Bhabin had made a statement indicting Mohan Kalita as the assailant. The situation emerging out of this position strikes at the genesis of the prosecution case. The situation gets further aggravated when we find that in the ejahar, Ext 5 submitted to the IO at the place of occurrence by PW 8 (son of the deceased) at 5 PM there is no mention of the dying declaration. PWs 2, 3 and 5 were all along there since the murder took place. Had there been any dying declaration, the prosecution witnesses should have told PW 8 about it. PW 8 in his ejahar, Ext 5 has mentioned that he came to know from the villagers that Mohan had killed his father. In his cross-examination, he named one Sitaram as the informant. Sitaram has not been examined in this case. It is a strange phenomenon that although the alleged dying declaration was made immediate after commission of the crime before 10.30 AM. PW 8, the son of the deceased, was not informed of it even when he lodged the ejahar at 5 PM. The prosecution evidence relating to dying declaration, therefore, gets bereft of the advantage of spontaneity casting a cloud of doubt on the credibility of entire whenf and woof of the prosecution story. In view of its glaring inconsistency with medical evidence and for reasons above, it will be extremely unsafe and hazardous to maintain conviction of the appellant on such evidence. 9. Now, we may look into the extra-judicial confession made by the accused while detained in the house of PW 1, PW 6 Uday Kalita and PW 9 Kandarpa is the witnesses to extra judicial confession. In course of his examination-in-chief, PW 6 stated as follows : "Sometime later people from Baihata along with some of our area brought Mohan to Dagaon. Fearing that the public might assault Mohan, we kept Mohan inside my drawing room. People continued to shout outside. In course of his examination-in-chief, PW 6 stated as follows : "Sometime later people from Baihata along with some of our area brought Mohan to Dagaon. Fearing that the public might assault Mohan, we kept Mohan inside my drawing room. People continued to shout outside. Inside the room Satyabrata, Sitaram, Niren, Mohan and I stood guard over Mohan. We asked Mohan why have you cut Bhabin ? Mohan replied 'I have committed a wrong. I should not have cut Bhabin." But curiously, except PW 6 Uday, none else named by him has been examined by the pro: ~cution. PW 9 Kandarpa Deka emerged as a witness of confessional statement with the story that the confessional statement was made in presence of Bapukan (PW 4). Uday (PW 6) and he himself. But PW 4 (Bapukan) in his evidence stated nothing about the confessional statement. The emergence of PW 9 as a witness of confessional statement at this belated stage and, that too, was overshadowing the version of PW 6 leads us nowhere but to an abysmal depth of confusion and doubt. That apart, the evidence shows that the people were shouting outside the room where accused was locked in. The situation outside was obviously tense and charged. In such a situation, it is doubtful whether the confessional statement, if any, made by the accused would be voluntary. Besides omission to mention about the confessional statement in the ejahar, Ext 5 lodged at 5 PM further reinforce the above doubt. The infirmities as pointed above do not inspire us to endorse the view of the learned trial Court that the accused made the confessional statement. 10. According to the learned Sessions Judge, the circumstances detailed by PWs 1, 5 and 10 regarding conduct of the accused before and after the occurrence appears to be firm, conclusive and clinching. PWs 1 and 10 stated that they saw the accused going towards the place of occurrence at about 9 AM with a dao and stick in his hand. PW 10 further added that Mohan (accused) wanted to know from him about the whereabouts of Bhabin, since deceased. PW 5, however, deposed that he saw the accused at about 10.30 AM going away with a dao and a stick. The accused was known to him and, therefore, he caught him by hand but the accused jerked and freed himself and left the place. PW 5, however, deposed that he saw the accused at about 10.30 AM going away with a dao and a stick. The accused was known to him and, therefore, he caught him by hand but the accused jerked and freed himself and left the place. Let us examine the implication of evidence of PWs 1, 5 and 10 referred to above. The first part of the evidence of PWs 1 and 10 that they saw the accused going towards the place of occurrence with a dao and lathi in hand is a natural phenomenon in the village. It is important to note here that he did not mention of any speciality in his dress. This means that he was in the dress generally worn by the villagers while working in the field. PW 12, the Investigating Officer made a statement in his cross-examination that the accused was wearing a pant, a shirt and shoes when he first saw him. There was no stain of blood on his clothes. The second part of the evidence of PW 10 that the accused wanted to know the whereabouts of Bhabin (since killed) from him is an absurd proposition because the accused harbouring a design to eliminate Bhabin would have never asked him about Bhabin to create evidence against him. The third part of the evidence tendered by PW 5 Kushal is that he had seen the accused going away from the place of occurrence with a dao and lathi in his hand. In this case, multiple injuries were caused by a sharp cutting weapon like dao. Naturally injuries with a dao has to be caused from a very close proximity and. in such a situation, the wearing apparels of the accused ought to have been stained by blood. PW 5 did not say that he had seen any blood stain on the clothes of the accused. This omission on the part of PW 5 to notice blood stain creates doubt as to the complicity of the accused with the alleged crime. That apart,there was immediate hue and cry in the village that Mohan had assaulted Bhabin. If that be so, the accused that fled from the place of occurrence would not come back to the village immediate thereafter and, that too, on the request of a few villagers. The witnesses have deposed uniformly that the villagers brought him back from Baihata Chariali. If that be so, the accused that fled from the place of occurrence would not come back to the village immediate thereafter and, that too, on the request of a few villagers. The witnesses have deposed uniformly that the villagers brought him back from Baihata Chariali. There is, however, no evidence that he was brought under force. In the similarly situated circumstances, no man of least prudence would come back to the village where he had committed murder a little while ago. Viewed from this angle, the defence version that he came back from Baihata Chariali when informed of his mother's illness cannot be lightly brushed aside. 11. The 10, PW 12 stated that on the next day, on being shown by the accused, he had seized the dao, lungi and shirt worn by the accused at the time of commission of crime from near a tubewell inside the house compound of the accused. In our opinion, the statement of the Investigating Officer about the recovery of lungi and shirt from the residence of the accused appears to be highly doubtful as the accused, who fled away from the place of occurrence and brought back immediate thereafter by the villagers, had no opportunity to go to his house to change his dress. That being so, how could PW 12, the Investigating Officer recover the lungi and shirt from the residence of the accused? This situation dilutes the evidence regarding recovery of a pen knife from near the place of occurrence at the instance of the accused. It is also important to note her that the accused was detained in the house of PW 1 who had deposed about the conduct of the accused before the occurrence. PW 5 Kushal Deka, one of the three witnesses of dying declaration, is the grand son of PW 1 and PW 6 Uday, the only witness of confessional statement, is the son of PW 1 (admitted by PW 1 in his cross examination. See page 18 of the Paper Book). This creates an impossible situation for the prosecution and remains unexplained. There is no eye-witness in this case. The evidence on dying declaration and oral confession stand tainted for reasons already discussed above. See page 18 of the Paper Book). This creates an impossible situation for the prosecution and remains unexplained. There is no eye-witness in this case. The evidence on dying declaration and oral confession stand tainted for reasons already discussed above. On this background, the evidence of PWs 1,5,6 and 10 with the infirmities as discussed above cannot be accepted as a chain so complete that there is no escape from the conclusion that within all probability the crime was committed by Mohan (the accused) and none else. There may be scope for conjectures and suspicions in this case, but we cannot allow them to take the place of legal proof. 12. The evidence relating to motive is also not inspiring. In this case, motive has been attempted to be established by PWs 8 and 11. Both of them stated that the accused wanted to forge a relationship with Alaka, daughter of the deceased and having been reprimanded and warned by the deceased, the accused had committed the crime. The prosecution has not advanced any explanation as to why they have defaulted in examining Alaka to prove the alleged motive. The evidence of PWs 8 and 11 that the accused was warned by the deceased is not suggestive of a grave and provocative situation for which the accused could have planned to eliminate Bhabin. It is true, whether motive is established or not, a Court can base conviction if the facts are clear. But in the instant case, credibility of the witnesses on dying declaration has been shattered by the medical evidence. The evidence relating to confessional statement also collapsed. The incriminating circumstances sougl, to be proved by PWs 1,5 and 10 with innumerable infirmities are capable of divergent views. For all these reasons, we are unable to sustain the conviction. 13. It is needless to point out that the duty of a Court is to try with all fairness and to convict if the prosecution has been able to prove the charge against the accused person beyond all shadow of doubt. It is, therefore, obligatory on the part of the prosecution not only to have fair investigation but also to assist the Court to arrive at a just decision. It is, therefore, obligatory on the part of the prosecution not only to have fair investigation but also to assist the Court to arrive at a just decision. The under current in the whole judgment of the trial appears to be in complete negation of the presumption of innocence of the accused which is like a golden thread webbing throughout the texture of criminal trial. Keeping this principle in mind and, after a careful consideration of the evidence on record, we are of the opinion that the evidence tendered by the witnesses on different aspects of this case, in its totality, cannot be considered as consistent with the guilt of the appellant. 14. Consequently, we allow this appeal. The judgment of conviction and sentence appealed against is hereby set aside. The accused Mohan Kalita stands acquitted. He be set at liberty forthwith.