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2003 DIGILAW 393 (GAU)

Nanu Ram Das v. State of Assam

2003-08-26

I.A.ANSARI, P.G.AGARWAL

body2003
JUDGMENT 1. The appellant Nau Ram Das alongwith 4 others were tried for the offence under Section302/365/34 IPC by the Sessions Judge, Barpeta in Sessions Case No. 28/98, on the allegation that on 7.6.1997, one Babita Das was kidnapped from her parents place and she was subsequently put to death. On conclusion of the trial, the trial court acquitted the four accused persons and convicted and sentenced the accused appellant under Section 302 IPC with imprisonment for life. Hence the present appeal. 2. The prosecution version of the case is that, deceased Babita, aged about 18 years had a love affair with the present appellant Nanu Ram Das and there was some physical relationship, as a result of which Babita had conceived. On the evening of 7.6.1997, the co-accused Dilip Das (since acquitted) took Babita Das from her parents place and she was allegedly taken to the house of the appellant Nanu Ram Das and on the next day morning the dead body of Babita Das was found lying in a field. The post mortem was conducted by PW 1 Dr. Suresh Ch. Sharma, who had opined, that the death was due to strangulation and forceful twisting of neck. The doctor further went to the extent of stating that the strangulation was done by three persons. We can overlook this part of the evidence. The defence has not challenged the death of the deceased by strangulation. The trial Court also held that this is not a case of suicide and considering the oral and medical evidence on record the trial Court rightly held that this is a case of homicide. 3. In the instant case there is no eyewitness to the occurrence that is none of the witnesses saw the deceased being killed. The appellant has been convicted on the basis of the circumstantial evidence and the circumstances on which the trial court relied upon are : 1. The accused had a love affair with the deceased. 2. There was physical relationship and the deceased had conceived through the appellant. 3. The deceased was taken to the house of the appellant on the night of the occurrence. 4. The existence of dead body was informed by the appellant's side that is by the accused Madan Das (since acquitted) who is the brother of appellant Nanu Ram Das. 5. That the accused appellant was absconding soon after the occurrence. 4. 3. The deceased was taken to the house of the appellant on the night of the occurrence. 4. The existence of dead body was informed by the appellant's side that is by the accused Madan Das (since acquitted) who is the brother of appellant Nanu Ram Das. 5. That the accused appellant was absconding soon after the occurrence. 4. In so far the circumstance Nos. 1 and 2 are concerned ; there is some evidence to show that the deceased Babita Das was in love with the accused appellant. Nanu Ram Das and they had developed some physical relationship. Some letters exchanged between them were seized and all this supports the above. However, being in love with the deceased as both the accused and deceased were young persons is no ground or circumstance. The trial Court has placed much importance on the circumstances No. 3. On the basis of the evidence of the mother, wherein she has stated that on the evening of 7.6.1997 at about 7 P.M. Dilip Das (co-accused) had taken Babita Das from her parent's house to the house of Nanu Ram Das. The evidence of PW 5 merely proves the taking away of the deceased from her house by Dilip Das. Admittedly she did not follow Dilip Das to find out where he had taken the deceased. The trial Court has also relied on the alleged statement of the co-accused Dilip Das that he had taken Babita Das to the house of Nanu Ram Das. This being a hearsay statement of co-accused is not admissible in evidence. We, therefore, find that there is no evidence whatsoever to show that Babita was taken to the house of Nanu Ram Day on the night of occurrence. 5. In this case we find that the accused Dilip Das has been acquitted by the court but the circumstances was against him. The possibility that Dilip Das who took the girl away from her house may have killed her himself also cannot be ruled out. However, we find that so far the circumstances No. 3 is concerned, did not establish that Babita Das was taken to the house of Nanu Ram Das on the ill-fated night. The possibility that Dilip Das who took the girl away from her house may have killed her himself also cannot be ruled out. However, we find that so far the circumstances No. 3 is concerned, did not establish that Babita Das was taken to the house of Nanu Ram Das on the ill-fated night. The law regarding conviction based on the circumstantial evidence provides that all the circumstances relied upon by the prosecution must be established by cause and evidence and in the instant case, we find that circumstance No. 3 has not been established. 6. As regards the absconding of the accused appellant Nanu Ram Das, we find that before the recovery of the dead body the police was looking for him and he fled the scene and surrendered before the court. 7. In the case of Dhananjay Chatterjee , the Apex Court observed as follows : "We are conscious of the fact that abscondence 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 abscondence of an accused after the occurrence is certainly a circumstance which warrants consideration and careful scrutiny." 8. Thus, we hold that the abscondence after the occurrence in itself is not sufficient circumstance, to establish the charge of, murder. So far the other circumstances are concerned, the appellant is no way involved. The statement regarding the dead body was made by the co-accused Madan Das and merely because he happens to be the brother of Nanu Ram Das, it cannot be taken that Madan Das came to know about it from Nanu Ram Das. Thus, we find that all the above five circumstances which was relied upon by the trial Court while taking them separately or jointly does not create any chain that it is the accused Nanu Ram Das who killed the deceased Babita and as a matter of fact these circumstances cast doubt against the appellant and nothing more. 9. In view of what has been stated above, we hold that the prosecution has failed to bring home the charge against, the appellant. Accordingly the conviction and sentence is set aside. The appellant is acquitted and set at liberty forthwith. 10. 9. In view of what has been stated above, we hold that the prosecution has failed to bring home the charge against, the appellant. Accordingly the conviction and sentence is set aside. The appellant is acquitted and set at liberty forthwith. 10. The accused person be released from jail custody forthwith, if not wanted in any other case.