Pradip Chao v. State of Assam — 1999 DIGILAW 200 (GAU)

In this case accused appellant Pradip Chao along with two others, namely Mrs Suwala Chao (wife of Pradip Chao) and Bimal Nag were prosecuted in Sessions Case No. 42 (SC) of 1990 under section 302/201/34 IPC before the Sessions Judge, Sibsagar. The learned Sessions Judge acquitted accused Suwala Chao and Bimal Nag and convicted the present accused appellant -under section 304 Part I, IPC and sentenced to imprisonment for five years and pay a fine of Rs.500, in default further imprisonment for two months. The accused appellant was also convicted under section 201 IPC and sentenced to imprisonment for three years and pay a fine of Rs. 500, in default further imprisonment for two months. Both the sentences were to run concurrently. Hence the present appeal. 2. The prosecution allegation is that on the date of occurrence the accused appellant forcibly took away Algu Bhuyan and assaulted him and thereafter Algu Bhuyan was found missing. Police was informed and after three days the dead body of Algu Bhuyan was found floating in the Teok river. It was recovered by police and after holding post mortem over the dead body and on conclusion of the investigation, charge sheet was submitted against the accused. 3. As regards the cause of death of the deceased Algu Bhuyan, Dr. RK Baruah who held autopsy found as follows : “On dissection, muscles of the chest, right arm, left fore arm and the scalp on the occipital region were found to be acchynosed. No mark of ligature was found around the neck. There was linear fracture on the occipital bone. There was a haematoma inside the durameter underneath the fracture. The brain matter in the occipital region was lacerated. Head injury was ante-mortem. In the opinion of the doctor the death was due to coma as a result of head injury which might be caused by a blunt weapon. The head injury was sufficient to cause the death in the ordinary course of nature.” The doctor has further stated that the above injury could not have been caused by a fall or jump in the water. Although the defence during trial tried to raise a controversy regarding identity of the deceased, it was rejected by the learned trial Judge by discussing the evidence in detail. Although the defence during trial tried to raise a controversy regarding identity of the deceased, it was rejected by the learned trial Judge by discussing the evidence in detail. The defence tried to suggest that the deceased under the influence of liquor might have jumped into the river and drowned himself and as such it will be a case of suicide. The fact of recovery of the dead body over the river is very specific and it is not even challenged. The dead body was found floating in the river and at that time the hands of the deceased were tied behind his back and a piece of iron which is called I-Beam used for Railway lines was also found tied and attached to his hands on the back. This piece of iron was used as a weight so that the body will not come up from the water. Naturally when a person jumps into the river to commit suicide or accidentally falls in the river he will not get his hands tied from behind and a weight attached. These articles were also seized by the police vide seizure list (Ext 6) produced and exhibited as Material Ext 3. Hence the possibility of suicide or accidental fall can be safely ruled out. The recovery of the garment worn by the deceased on the date of occurrence containing blood marks and seized vide Ext 4 are also relevant in this regard. In view of the medical and oral evidence on record there is no doubt whatsoever that this is a case of homicide. 4. In this case there is no direct evidence as regards the assault. The accused appellant stood convicted mainly on the basis of the circumstantial evidence.The guiding principles for excepting circumstantial evidence were well settled by the Hon'ble Supreme Court in a number of decisions. Following the ratio of decisions I find that following may be termed as the basic requirements : (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established by cogent evidence. (2) There must be a chain of evidence so complete that there is no escape from the conclusion that within ail human probability the act must have been done by the accused. (3) The circumstances must be of incriminating character unerringly pointing towards the guilt of the accused. (2) There must be a chain of evidence so complete that there is no escape from the conclusion that within ail human probability the act must have been done by the accused. (3) The circumstances must be of incriminating character unerringly pointing towards the guilt of the accused. (4) It should also be incapable of explanation of any other hypothesis than that of the guilt of the accused. (i) Pohiya M Valvi vs. State of Maharastra AIR 1979 SC1949. (ii) Ashok Kr. Chatterjee vs. State of Madhaya Pradesh, AIR 1989 SC 1890 . 5. Now let us consider the circumstances on which the prosecution wants to rely. (1) That the deceased and the accused were neighbours and on the previous day of the incident the deceased was assaulted by the accused. (2) That on the date of occurrence the accused was found in injured condition in the house of the accused. (3) The accused was last seen with the deceased. (4) The accused had threatened the deceased that the latter will be killed by him. (5) The recovery of the blood stained clothes, worn by the deceased on the date of occurrence which were kept hidden under the ground. 6. The informant Sita Bhuyan is the sister of the deceased and she has deposed that the quarrel that took place between the accused and the deceased. At about 8 AM on the date of occurrence she was also present in the house when the accused came to assault the deceased and after threatening him forcibly e took away the deceased to his own house. This witness was cross-examined at length. But except giving mere suggestion the defence failed to dislodge her testimony. PW 4 Ganesh Bhuyan is another neighbour and on being called by the accused he went to his house and saw the deceased lying there with his hands tied on the back and the rope tied around a bamboo post. The accused admitted that he kept Algu tied there for the purpose of sending him to police. At that time Algu was in an unconscious state and blood was coming out from the mouth. Thereafter the deceased was brought out to the rear-varandah and accused called His Pharmacist of the garden Sri Sarbeswar Tanti (PW 5). PW 5 came and after seeing the deceased advised the accused that Algu should be sent to Sonari Hospital immediately. At that time Algu was in an unconscious state and blood was coming out from the mouth. Thereafter the deceased was brought out to the rear-varandah and accused called His Pharmacist of the garden Sri Sarbeswar Tanti (PW 5). PW 5 came and after seeing the deceased advised the accused that Algu should be sent to Sonari Hospital immediately. PW 4 reported the matter to the informant. PW 5 has also deposed that on the date of Occurrence the accused appellant came to his house and informed that Algu was vomiting and he should go and see him. Accordingly PW 5 came to the house of the accused and found Algu lying unconscious with bleeding and after checking pulse, etc and considering that the matter is serious, he advised the accused that either the doctor should be brought or the accused should remove Algu to some other hospital. PW 4 and PW 5 are h the independent and disinterested witnesses. From their evidence it is crystal clear that on the date of occurrence the deceased Was seen in the house of the accused if tar face suck as state and also tied with ropes. The statement/evidence of the two witnesses had not been challenged. Thus the presence of the deceased a in the house of the accused amounts to last seen with the accused appellant. The evidence of PW 4 and PW 5 is clinching and there is no other evidence to show that the deceased was seen alive after the incident. 7. The post crime conduct of the accused appellant is also relevant under section 8 of the Evidence Act, 1872. As the deceased was found missing, the accused appellant informed the complainant and other villagers that at night the deceased has fled away from his house. It was entirely a false statement. Considering the statement of PW 5 it is clear that the deceased was not in a position to move even. The subsequent recovery of the dead body with the hands tied on the back and a weight attached shows that it was not a case of Seeing by the deceased as stated by the accused. 8. On consideration of the evidence on record it is seen that the prosecution has cogently established all the circumstances. The accused appellant after assaulting the deceased threw away the dead body in the river in order to save himself. 8. On consideration of the evidence on record it is seen that the prosecution has cogently established all the circumstances. The accused appellant after assaulting the deceased threw away the dead body in the river in order to save himself. From the circumstances established by the prosecution there is a chain of evidence leading to the involvement of the accused in killing of Algu Bhuyan. There is no scope of inference that the deceased might have been killed by some other persons than the accused appellant. The circumstances also cannot be explained on any hypothesis except the guilt of the accused. It is therefore held that there are sufficient and strong circumstances leading to the irresistible inference that it was accused Pradip Chao and Pradip Chao alone who killed the deceased. 9. Learned counsel for the appellant has submitted that in a case based on circumstances, the motive for committing the crime on the part of accused assumes greater importance. In the case of Tarseem Kumar vs. The Delhi Administration, AIR 1994 SC 2582 , the Apex Court in para 8 of the judgment observed as follows: “Normally, there is a motive behind every criminal act and that is why investigating agency as well as the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on basis of the materials produced before the Court, the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the Court forpurpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof, of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as the Court should ascertain as far as possible as to what was the immediate impelling motive on thepart of the accused which led him to commit the crime in question.” 10. In the instant case prosecution has brought out the motive. But the investigating agency as well as the Court should ascertain as far as possible as to what was the immediate impelling motive on thepart of the accused which led him to commit the crime in question.” 10. In the instant case prosecution has brought out the motive. Accused is a physically handicapped man in the sense that his one eye is defective. The deceased as young man allegedly taunted the accused that his other eye will also be damaged and for this reason the accused wanted to teach him a lesson and assaulted him as held by the trial Court. The accused had no motive to kill the a deceased. But the motive was then to teach him a lesson by assault and the assault proved fatal. The subsequent conduct in disappearing the dead body by removing it from the scene of crime completed the chain. 11. In view of the foregoing discussion and decision there is no merit in this appeal. The conviction and sentence passed by the learned trial Court needs no interference. Accordingly the appeal is dismissed. As the accused appellant was allowed to go on bail by order dated 25.6.96 he is directed to surrender before the Sessions Judge, Sibsagar within 30 days from today failing which the learned Sessions Judge shall take necessary steps for apprehending the accused.