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2000 DIGILAW 259 (GAU)

Nibaran Das v. State of Assam

2000-08-04

D.BISWAS, P.G.AGARWAL

body2000
P. G. Agarwal, J.— This appeal is directed against the judgment and order dated 30.3.98 passed by the learned Sessions Judge, Barpeta in a Sessions Case No. 26 of 1995, thereby convicting the accused appellant under section 302 IPC and sentencing him to undergo imprisonment for life, and also to pay a fine of Rs. 1,000, in default to further imprisonment for three months. 2. The prosecution story of the case in brief is that on 15.5.90 about 7.00 PM the accused appellant Nibaran Das came to the house of Radha Kanta Das and took him for fishing in the river 'Beki', under Sorbhog PS, said Radha Kanta Das did not return from fishing and later on when the accused was confined by the villagers, he confessed to have killed the deceased by assaulting him with an oar, used for the purpose of boating and threw the dead body in the river. The dead body of deceased Radha Kanta Das was fished out. FIR was lodged before the police naming the accused as assailant. After usual investigation, police submitted charge sheet. The accused was tried for the offence under section 302 IPC and on conclusion of the trial, he was convicted under the above section of law and sentenced to imprisonment for life and to pay a fine of Rs. 1,000, in default to further RI for three months. 3. In this case, there is no eye witness to the brutal murder of Radha Kanta Das. Prosecution has relied on the circumstantial evidence to bring home the charge. Before proceeding with the circumstances established by the prosecution, it will be useful to recapitulate the principles of circumstantial evidence as laid down by the Apex Court in the case of Hanumant vs. State of MP, AIR 1952 SC 343 . “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793 : ( AIR 1973 SC 2622 ) where the following observations were made : 'Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divide vague conjectures from sure conclusions'. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human possibility the act must have been done by the accused”. The above five golden principles, considered as 'Panchasheel' of circumstantial evidence, were restated by the Apex Court in the case of: (1) Sharad Birdichand Sharda vs. State of Maharashtra, AIR 1984 SC 1622 ; (2) Laxman Naik vs. State of Orissa, AIR 1995 SC 1387 ; (3) A. Wati Ao vs. State of Manipur, AIR 1996 SC 361 ; (4) Betal Sigh vs. State of MP, 1996 (4) SCC 203 . 4. 4. In the present case, the prosecution has relied on the following circumstances to bring home the charge against the accused appellant: (1) the accused came to the house of the deceased and called him out for fishing; (2) the deceased was last seen alive in the company of the accused; (3) the accused made extra-judicial confession before the village headman and others; (4) the dead body was recovered from the river 'Beki' at the instance of the accused; (5) the accused gave false explanation; (6) the accused had enmity with the deceased. 5. PW 7 is the Doctor, who held the autopsy over the dead body and found the following external injuries: “(1) One incised wound of size 3" x ¼”x ¼” was seen over the right eye-brow. (2) A lacerated injury of size 2"1/2 x 1/4” was seen over the right side of mandible with laceration of the lower lip. (3) there was laceration of the bridge of the nose. (4) There was also laceration of size 1/2 x/1/2 x ¼” over the left side of the chest.” 6. The trial Court on consideration of the oral and medical evidence on record came to the definite finding that this is a case of homicide and not an accidental death. The deceased was a fisherman and he did not die of simple drowning. In view of the evidence on record, the factum that this is a case of homicide has not been seriously challenged before us. 7. PW 4 is Smti Nayantara Roy, wife of the deceased Radha Kanta Das. She has deposed that the accused, a co-villager used to visit their house and her husband and the accused used to go together for fishing. This statement of PW 4 is supported by other witnesses, who have also stated that the deceased and the accused also used to go together for fishing. PW 4 further states that on the date of occurrence, the accused and the deceased went out for fishing. Her husband took some extra wearing cloth and the fishing instrument. Her husband did not return that night The witness also states that her husband had taken loan of Rs.500 from the accused but could not repay the same and the accused was insisting for the refund of the money. Her husband took some extra wearing cloth and the fishing instrument. Her husband did not return that night The witness also states that her husband had taken loan of Rs.500 from the accused but could not repay the same and the accused was insisting for the refund of the money. PW 5 is Smti Nira Bala Roy, the mother of the deceased and she has also fully supported the statement of PW 4 that on the evening of the incident, the accused came to their house and took the deceased with him for fishing. Nil Kamal, PW 6 was informed next day morning about the missing of the deceased and also the fact that on the previous evening the deceased had gone out for fishing with the accused. 8. Hary Kshatriya, PW 8 is another witness who had seen the deceased and the accused going together towards the river side for fishing at about 7.00 or 8.00 PM of 15.5.90. Afterwards, when he was informed that Radha Kanta Roy is missing he informed the villagers that he had seen the deceased going together with the accused for fishing. Bishnu Ram Mandal, PW 9 is a tea-stall owner where from the deceased had purchased 'Bidi' while going towards the river and this witness saw the accused with the deceased. 9. PW 1, Sri Nibaran Mandal, is the VDP Secretary and on being informed about the missing of Radhakanta and on coming to know that the deceased had gone with the accused for fishing on the previous evening, he along with other VDP persons went to the house of the accused and interrogated the accused. Initially the accused did not admit anything, later on, the accused confessed that they had gone to 'Beki' river for fishing and after some time he (accused) assaulted the deceased Radha Kanta with an oar and threw him in the river. The accused also got reasons for doing all those things by stating that the deceased had failed to repay his loan and also had damaged his fishing boat on earlier occasion. The villagers thereafter put fishing nets in the river at the place described by the accused and the dead body was recovered at a distance of 100-150 cubic feet from that place. The matter was informed to the police and police took away the dead body. 10. The villagers thereafter put fishing nets in the river at the place described by the accused and the dead body was recovered at a distance of 100-150 cubic feet from that place. The matter was informed to the police and police took away the dead body. 10. Sushil Das, PW 2 and Polan Rajbangshi, PW 3 are the persons who participated in the search of the dead body in the river and it was Sushil, PW 2 who first noticed the dead body. He also saw injuries on the person of the deceased. PW 6 has deposed that on coming to know that the deceased had gone with the accused for fishing and the deceased is missing, he along with the VDP persons went to the house of the accused but the accused did not admit rather deny the allegation. The villagers returned back but on the next day they again went to the house of the accused and found the house locked. They searched for the accused at his father-in-laws place but he was also not found there. Thereafter, the accused was found sitting in a Dhubri bound bus where from he was apprehended and brought to the house of PW 1 where he confessed his guilt and told them about throwing of the dead body in the river 'Beki'. 11. Thus, from the evidence on record it is seen that all the incriminating circumstances have been fully established by the prosecution by leading reliable and cogent evidence and there is no reason to disbelieve the testimony of the witnesses. The prosecution witnesses were cross-examined at length but nothing has come out to show that they were deposing falsely or that they invented a story. PW 8 and 9 are the independent witnesses who saw the deceased in the company of the accused and on the last occasion when the deceased was seen alive. 12. The circumstances of last seen together is an important link in the chain of circumstance. The accused initially tried to put up a false plea and raised the plea of alibi by stating that on the fateful evening he had gone for fishing with one Kshitish, a neighbour of the accused and not with the deceased. It seems that initially Kshitish also tried to help out the accused but later on, he developed cold feet and did not come forward to support the accused. It seems that initially Kshitish also tried to help out the accused but later on, he developed cold feet and did not come forward to support the accused. The defence also gave a go-bye to the plea of alibi that he was fishing with Kshitish and the said witness Kshitish was not produced either by the prosecution or the defence. At the first instance the accused also did not confer his guilt but later he confessed before the VDP persons that it was he who killed the deceased and threw him into the river. The dead body was also found near the place where it was shown to have been thrown by the accused appellant. As the dead body was recovered by the villager before the arrival of police, there is no question of recording of the statement of the accused as regards the discovery of the dead body under section 27 of the Evidence Act. In the instant case, the villagers had no information or knowledge as to where the actual assault had taken place and where the dead body has been dumped. It was on the basis of the statement of the accused that they searched the particular place in the river and the dead body was recovered. Thus from the fact that the accused made confessional/disclosure/statement to the villagers and on the basis of it the dead body was recovered, the circumstance of recovery is an important link. The evidence on record also shows that the accused tried to hoodwink the villagers by putting up a false plea and thereafter tried to- abscond and he was apprehended while he was fleeing the village. 13. Prosecution has also led evidence to show that the accused had the motive to assault the deceased due to enmity and non payment of the loan by the deceased. At this stage, we would like to recapitulate the observations of the Apex Court as regards the part played by motive in cases based on circumstantial evidence. In the case of Suresh Chandra Bahri vs. State of Bihar, AIR 1994 SC 2420 , the Apex Court observed: “At the very outset we may mentioned that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is relevant factor for which evidence may be adduced. In the case of Suresh Chandra Bahri vs. State of Bihar, AIR 1994 SC 2420 , the Apex Court observed: “At the very outset we may mentioned that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the Court that the accused was guilty for the offence charged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows was to what circumstances prompted him to a certain course of action leading to the commission of the crime.” 14. Absconding in itself is not a circumstance which leads to only conclusion of guilt of the accused. Sometimes innocent persons also absconds for the fear of harassment etc but the absconding of the accused soon after the concurrence is certainly a circumstance adverse to the accused and warrant consideration along with other relevant circumstances. 15. In the case of Rajinder Kumar vs. State of Punjab, AIR 1966 SC 1322 , the following circumstances were considered sufficient for maintaining the conviction: (a) that the deceased was last seen in the company of the accused; (b) making contradictory statement as to where the deceased was; and (c) that the recovery of the dead body was made at the instance of the accused. 16. A similar view was taken by the Apex Court in the case of State of Maharashtra vs. Suresh, (2000) 1 SCC 471 , where the deceased, a minor girl of about four years, was taken from place to place by the accused. On the other hand, learned counsel for the appellant has referred to a decision of the Apex Court in the case of Prem Prakash Mundra vs. State of Rajasthan, AIR 1998 SC 1189 . On the other hand, learned counsel for the appellant has referred to a decision of the Apex Court in the case of Prem Prakash Mundra vs. State of Rajasthan, AIR 1998 SC 1189 . In the above case, the Court was of the opinion that the evidence of witness is doubtful as the accused person been all along with the deceased child. In the instant case, there is overwhelming reliable evidence to show that the deceased was last seen alive in the company of the accused Nibaran Das only. 17. The cumulative effect of all these circumstances established by the prosecution in the present case is consistent only with the hypothesis of the guilt. The appellant was examined under section 313 CrPC and the circumstances were put to him but no explanation whatsoever was forthcoming. 18. In this case the extra judicial confession was made before the VDP Secretary and other VDP personnel. The witnesses are simple unsophisticated villagers and they have told the truth by stating that the accused at the first instance did not admit his gilt and came up with a false plea of alibi. But when he was pressed, the accused confessed the guilt and pointed to the place where the dead body has been dumped by him. The witnesses also admits that the accused was slapped by them. Thus, it cannot be said that the statement was completely voluntary but basing on his statement the dead body was recovered which corroborates that the accused did make his statement. In this case the appellant has not been convicted on the basis of the alleged extra judicial confession but on the basis of the other incriminating circumstances as stated above. The extra-judicial confession was mere cog in the entire wheel and it fits completely. 19. Thus, on consideration of the entire prosecution evidence, the circum­stances established by the prosecution in the foregoing paras, it is satisfactorily established by the prosecution that it was accused appellant Nibaran Das and he alone who killed the deceased and threw the dead body in the river. The accused was alone with the deceased in the boat and in the river and with the pretext of fishing, he used oar for assaulting the deceased and thereafter threw the dead body in the river. The trial Court has rightly convicted the accused appellant and the conviction and sentence needs no interference. The accused was alone with the deceased in the boat and in the river and with the pretext of fishing, he used oar for assaulting the deceased and thereafter threw the dead body in the river. The trial Court has rightly convicted the accused appellant and the conviction and sentence needs no interference. The appeal is devoid of any merit and accordingly dismissed. Send down the record.