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2003 DIGILAW 186 (GAU)

Dharani Pator v. State of Assam

2003-05-02

I.A.ANSARI, P.G.AGARWAL

body2003
P.G. AGARWAL, J. — Heard Sri R. Barua, learned counsel for the appellant, and Mr. PC Gayan, learned Addl. Public Prosecutor. 2. This appeal is directed against the judgment and order passed, on 02.03.2002, by the Additional Sessions Judge, Nagaon, in Sessions Case No. 101 (N)/99, whereby the accused-appellant, Dharani Pator, along with Mohan Teron were convicted under Section 302 IPC and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 1000/- each and, in default, to further imprisonment for one month each. 3. The prosecution's allegation, in short, is that on 04.07.98, the deceased Lakhimoni Debnath @ Jatin alongwith his brother, Babu Moni Nath went to invite guests and thereafter, the said Lakhimoni Debnath was found missing. The dead body of Lakhimoni Debnath was recovered from a place near Airawat Beel. The police after usual investigation, submitted charge-sheet against the accused persons. However, one of the accused persons, namely, Dimbeswar Bordoloi absconded and the trial proceeded against Mohan Teron and Dharani Pator. The present appeal is by the Dharani Pator. Upon inquiry, we have found that no appeal has been preferred by the other accused Mohan Teron. 4. PW-3, Dr. (Golap Ch. Dutta) who held autopsy on the dead body of Lakhimoni Debnath @ Jatin, found the following injuries:- " (i) One cut wound 6" x 6" x muscle deep at level of neck left side. All the vital structures were cut and separated in the head region from rest of body and remained simply attached to the body by strip of skin and subcutaneous tissues. (ii) Cranium and Spinal cord congested, (iii) Lungs cyanosed and inflated with fluid but empty. The injury was ante mortem." 5. In the opinion of the doctor, death was caused due to shock and haemorrhage as a result of the cut injury sustained by the deceased and that a sharp cutting weapon like dao could have caused such injuries 6. The medical evidence has not been challenged by way of cross-examination. Considering the nature of the injuries, the learned trail Court rightly held this case to be a case of homicide. 7. In the instant case, we find that there is no eye witness to the occurrence, that is, nobody saw the deceased being assaulted. The entire prosecution case rests on circumstantial evidence 8. Considering the nature of the injuries, the learned trail Court rightly held this case to be a case of homicide. 7. In the instant case, we find that there is no eye witness to the occurrence, that is, nobody saw the deceased being assaulted. The entire prosecution case rests on circumstantial evidence 8. We also notice that Pulen Nath, father of the deceased, was examined as a Court witness. He has deposed that his son had business transactions with the three accused persons and that the deceased owed some money to the accused persons. The father of the deceased and PW-4(Babu Mani Nath) who is younger brother of the deceased have deposed that the deceased Lakhimoni Debnath found missing from his village since 04.07.98. PW-l(Chepeta Pator) has deposed that deceased Lakhimoni Debnath came to the house of PW-1 on 04.07.98 to invite him (PW-1) to the inauguration of Shiva temple and that on that day, Lakhimoni Debnath was whisked away by the three accused persons from the house of PW-1. On search, the scooter belonging to the deceased was, admittedly, found abandoned in a field. The prosecution wanted to show that the deceased was killed as he had not been paying the money owed by him to the accused. The prosecution has heavily relied upon the circumstance of the deceased having been last seen together with the three accused. 9. We may point out that the trial Court has relied on the evidence of Chepeta Pator(PW-1) and on perusal of the evidence on record, we find that this witness is a reliable witness and he has deposed the truth only. 10. T he other circumstance, which the prosecution has brought out, is procuring of a dao by the absconding accused Dimbeswar Bordoloi from PW-2 (Jugal Khelnia). The learned defence counsel submits that there is some discrepancy in the evidence adduced by the prosecution in this regard inasmuch as PW-2 claims that the dao was taken from him (PW-2), while he (PW-2) was working in his house, whereas the confessional statement of the co-accused Mohan Teron shows that the dao was brought by Jugal (PW-2), on being asked by absconding accused Dimbeswar, while Jugal was carrying a fishing net from the direction of the beel. This contradiction as to how the dao was brought to the place of occurrence is immaterial. This contradiction as to how the dao was brought to the place of occurrence is immaterial. The defence has also taken the plea that since the dao has not been recovered, the alleged procuring of the dao from PW-2 was not convincingly proved. We find that non-discovery of the dao is immaterial in this case. 11. As regards the circumstance of the last seen together, the learned counsel for the appellant has placed reliance on the recent decision of the Apex Court, in Mohibur Rahman and Another-Vs-State of Assam, (2002) 6 SCC 715 wherein the Apex Court observed as follows:- "10. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or proximity of time and place. As already noted the dead body has been recovered about 14 days after the date on which the deceased was last seen in the company of the accused. The distance between the two places is about 30-40 KM. The event of the two accused persons having departed with the deceased and thus last seen together (by Lilima Rajbongshi, PW-6) does not bear such close proximity with the death of the victim by reference to time or place. According to Dr. Ratan Ch. Das the death occurred 5 to 10 days before 9.2.1991. The medical evidence does not establish, and there is no other evidence available to hold, that the deceased had died on 24.1.1991 or soon thereafter. So far as the accused Mohibur Rahman is concerned this is the singular piece of circumstantial evidence available against him. We have already discussed the evidence as to recovery and held that he cannot be connected with any recovery. Merely because he was last seen with the deceased a few unascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. We have already discussed the evidence as to recovery and held that he cannot be connected with any recovery. Merely because he was last seen with the deceased a few unascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence under Section 201 IPC is concerned there is no evidence worth the name available against him. He is entitled to an acquittal." 12. The facts in Mohibur Rahman(supra) were altogether different and distingushable from the present case inasmuch as we find in the instant case that the deceased was last seen in the company of the accused on the evening of 04.07,98 and his dead body was recovered on the morning of 06.07.98 from a nearby beel and in between the time the deceased was last seen together with the accused and recovery of his dead body, he was not seen alive. Further, as per the medical evidence on record, we find that when the post mortem was conducted on 06.07.98, the dead body already stood decomposed. This goes to show that the deceased was killed on 04.07.98 itself. Thus, the circumstance of the last seen together was in close proximity of time, space and place and the above circumstances cannot be ignored. 13. The learned trial Court has also taken note of the fact that soon after the incident, when the police came to know that the deceased had been taken away by the three accused persons, the houses of the three accused persons were searched by the police and all the three accused persons were found absconding. The learned counsel for the appellant has submitted that mere absconding is not an incriminating circumstance and sometimes, out of fear, people may abscond. He has referred to the Apex Court's decision reported in AIR 1971 SC 1872. In the case of Dhananjoy Chatterjee-Vs-State of W.B. (1994) 2 SCC 220 , the Apex Court observed as follows:- "We are conscious of the fact that abscondance by itself is not a circumstance. which may lead to the only conclusion consistent with the guilt of the accused, because it is not unknown that innocent persons on being falsely implicated may abscond to save themselves, but abscondance of an accused after the occurrence is certainly a circumstance, which warrants consideration and careful scrutiny.' 14. which may lead to the only conclusion consistent with the guilt of the accused, because it is not unknown that innocent persons on being falsely implicated may abscond to save themselves, but abscondance of an accused after the occurrence is certainly a circumstance, which warrants consideration and careful scrutiny.' 14. The conduct of abscondance by the accused is, in our view, relevant under Section 8 of the Evidence Act in the context of the facts and circumstances of this case. 15. Sri Barua, learned counsel for the appellant, has pointed out that the circumstances of the abscondance and the confessional statement of the co-accused Mohan Teron were not put to the accused appellant during recording of his statement under Section 313 Cr. P.C. and, as such, the same cannot be used against the present appellant. In view of the recent decision of the Apex Court, we have granted the learned counsel an opportunity to explain the above circumstances and make submissions on this aspect of the evidence on record. Hence, the plea of non-putting of the said circumstances to the accused-appellant under Section 313 Cr.P.C. no longer exists, particularly, when nothing could be submitted, on behalf of the appellant, as to why these two circumstances should not be relied upon by the Court against the present appellant. 16. In this case, besides the above circumstances, the learned trial Court has also used the confessional statement of the co-accused for reliance. In the instant case, admittedly, the confessional statement of the co-accused can be used for the purpose of lending support or assurance to the prosecution case. 17. In the instance case, there was a joint trial of the appellant Dharani Pator alongwith Mohan Teron. The other convict, Mohan Teron, had made a confessional statement, which was recorded by Dipali Bhuyan Judicial Magistrate(PW-5). Ext.-2 is the said confessional statement and the relevant portion of the confessional statement reads as follows:- "Dharani, Dimbeswar and I had been doing timber and paddy business since two years back. Jatin of Dighaliati used to purchase the same from us. Later Jatin owed Rs. 6,000/- for our said dealings. Whenever we asked for the amount Jatin made false promises that he would pay us the amount. Like previous occasion, that day Jatin had come to our village. Jatin of Dighaliati used to purchase the same from us. Later Jatin owed Rs. 6,000/- for our said dealings. Whenever we asked for the amount Jatin made false promises that he would pay us the amount. Like previous occasion, that day Jatin had come to our village. As we had been collecting paddy from house to house on the day of occurrence, we could learn that Jatin had gone to Sepeta's house. Then we called in Jatin towards Oirabat beel and asked him about the money whereupon, he telling us that he would not be able to pay us the money, asked us to do what we liked. Then Dimbeswar, having seen a young man Jugal by name carrying a fishing net from the direction of beel, asked him to bring a dao whereupon, the latter brought a dao and handed over the same to him. After that Dharani held Jatin by the hands and I by the legs whereupon Dimbeswar hacked Jatin in the neck with the dao. Jatin fell down on the ground and died instantly. When Dimbeswar asked Dharani and I too leave the place we left the place. Handing over the dao to us, Jugal might have reached about 2 KM distance by that time. Sending us off, Dimbeswar came later than us from the place of occurrence. Jatin is known as Lakhimoni Debnath in the village. Since the time of our doing business we used to call him Jatin. The occurrence took place at about 3.30 P.M., Saturday, on 4.7.98.' 18. The learned trial Court held that the confession was voluntary and true. So far as the voluntariness of the confessional statement is concerned, it can be inferred from the facts and circumstances of the present case and the evidence on record. According to the Magistrate, the accused was arrested on 11.7.98 and thereafter, he was taken to the police custody, he was brought before her on 13.7.98, whereupon a prayer was made for recording his confessional statement. After cautioning the accused, the Magistrate sent the accused, again, to judicial custody for reflection. The accused was brought back on 14.7.98 and on that day also, PW-5 gave some more time for reflection and thereafter, on being satisfied, recorded the confession. After cautioning the accused, the Magistrate sent the accused, again, to judicial custody for reflection. The accused was brought back on 14.7.98 and on that day also, PW-5 gave some more time for reflection and thereafter, on being satisfied, recorded the confession. Although PW-5, in her cross examination, stated that some essential questions had not been put to the confessing accused, we find, on careful scrutiny of the evidence on record, particularly, Ext. 2 that PW-5 had, indeed, made it clear to the accused before deciding to record his confessional statement that he would not be handed over to the police again. This apart, according to Ext.2, she had asked the accused as to why he was going to make confession and the answer given by the accused were duly recorded. The our confessional statement is, in view, voluntary and true. The confessional statement, as quoted above, has fully corroborated the incriminating circumstances on record on every material particular. The statement that there was a business transaction or lending of money between the accused and the deceased, as mentioned in Ext-2, fully corroborates the evidence of PW-1, father of the deceased, as well as PW-2, Pulen Nath. The confessional statement regarding procuring of dao corroborates the evidence given by PW-2 (Jugan Khelnia). The confessional statement also corroborated by the evidence of Chepeta (PW-1) as regards the time when the deceased was taken away from Chepeta's house by the accused. The cause of death arising out of giving of blow by dao stands supported by the medical evidence on record. The place of occurrence mentioned in the confessional statement was Airawat Beel and the dead body admittedly, was recovered from that beel only. 19. In view of the above, it is held that the confessional statement fully corroborates and lends support to the other incriminating evidence on record. The father of the deceased has stated that he was informed about the occurrence by the brother of PW-2 and subsequently, when he went to the house of PW-1, he was informed by PW-1 also that the deceased had been taken away by the three accused persons from the house of PW-1. Thus, we do not find any contradiction between the statement of PW-1 and the Court witness. 20. In view of the above, we find no merit in this appeal and the conviction of the accused needs no interference. Thus, we do not find any contradiction between the statement of PW-1 and the Court witness. 20. In view of the above, we find no merit in this appeal and the conviction of the accused needs no interference. This is a cold blooded murder of a young man for his inability to repay the loan of Rs. 6,000/- to his partners. Hence, the sentence too needs no interference. 21. Send down the record with a copy of this order. 22. Send a copy of this order to the Superintendent, District Jail, Nagaon, and the Sessions Judge, Nagaon.