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2005 DIGILAW 475 (GAU)

Rumi Bora Dutta v. State of Assam

2005-06-23

B.K.ROY, P.G.AGARWAL

body2005
P.G. AGARWAL, J.— This appeal is against the judgment and order dated 20.11.2001 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 54(J-J) of 1998 convicting the Appellants under Sections 302/34IPC and sentencing them to undergo imprisonment for life and to pay a fine of Rs. 1000/- each, in default of payment of fine, to undergo further R.I. for 3 (three) months. 2. We have heard Mr. J.M. Choudhury, learned Senior Advocate for the Appellants and Mr. P. Bora, learned Additional Public Prosecutor, Assam for the Respondent. 3. The two Appellants before us, are the wife and maternal nephew respectively of the deceased Naren Dutta, who was serving as Upper Division Assistant in the office of the Deputy Inspector of Schools, Jorhat. 4. The investigation of the case was set in motion by the Appellant No. 1, Smti Rumi Bora Dutta, a school teacher and wife of the deceased Naren Dutta. She lodged a written report (FIR-Ext-2) before the Officer-in-Charge, Bhogdoi Police Outpost under Jorhat Police Station stating, inter alia, that while she was in her house along with her husband, on hearing some knock at the door, she opened the door whereupon three unknown miscreants entered into the house and keeping her in the drawing room at the point of pistol two miscreants entered the bed room and killed her husband and thereafter came out with her youngest son Pranjal and left the place. When she raised alarm her nephew Prabal Dutta (who is Appellant No. 2) came out and on her insistence he brought back her son from the road. Thereafter, on entering into the bed room, they found the deceased lying on the bed with his neck tied with rope and injury on his chest. The deceased was taken to Jorhat Civil Hospital, where he was declared dead. 4.1. The Police during investigation, seized the rope (Material Ext. 1) and sent the dead body of Naren Dutta for post mortem examination, which was conducted by Dr. Narayan Bordoloi (PW-6). 4.2. Dr. Bordoloi found as follows :- "(1) The dead body was in stout condition. One stab wound on the right side of the chest wall, size 5 c.m. lateral to the sternum, measuring 1 c.m. in length and 1.5 c.m., in length and 1.5 c.m. in depth. The wound is gapping. Clotted blood seen at the external margin and at the level of the rib. One stab wound on the right side of the chest wall, size 5 c.m. lateral to the sternum, measuring 1 c.m. in length and 1.5 c.m., in length and 1.5 c.m. in depth. The wound is gapping. Clotted blood seen at the external margin and at the level of the rib. Underlying bony cage is intact. (2) One transverse, continuous ligature mark seen around the neck at the level of thyroid carteledge. The breadth of the mark is about 4 m.m. The breadth of the mark is about 4 mm. The abuse of the mark is redid and there is achymosis at the edges of the ligature mark. On dissection-the subcutenous tissue is found acchymosed. The head and the face are congested. The tongue is swelled. The scalp, membrance and brain are all congested. Pleurae, lungs, pericardium and heart are all congested (affected). Paritonium, stomach, intestine are also congested. The injuries were ante mortem." 4.3. The doctor opined that the cause of death is "asphyxia following strangulation". Strangulation was caused with a rope and the injury on the chest of the deceased was caused with sharp pointed weapon like dag-geretc. 5. The .investigating agency entertained doubt about the story of unknown miscreants entering the house at dead of night killing the deceased and leaving the place along with the minor son without any apparent reason. The accused appellants were interrogated. During interrogation, Appellant No. 2 Prabal Dutta, a young man of 23 years, confessed his guilt before the Police of having killed the deceased with the help of Appellant No. 1 Rumi Bora Dutta. 5.1, The statement of Appellant No. 2 Prabal Dutta was reduced to writing (Ext. 6), which reads as follows :- "My name is Shri Prabal Dutta. Early morning on 4.6.93, as I had planned with my maternal aunt on 3.6.97,1 killed maternal uncle Naren Dutta by strangulating him with skipping rope and feigned later that the decoit had killed him. I have kept the two handle of the skipping rope mat I had used in the murder and the knife with which I had stabbed him to confirm his death, after washing the same, I will be able to produce them if I am accompanied to the place. I have kept the two handle of the skipping rope mat I had used in the murder and the knife with which I had stabbed him to confirm his death, after washing the same, I will be able to produce them if I am accompanied to the place. Sd/- Prabal Dutta 6.6.97" d. The Investigating Officer (PW-9) has deposed that the Appellant No. 2 Prabal led him to his maternal uncle Naren Dutta'shouse and produced a knife and two handles of a skipping rope, which were seized by him in the course of investigation, vide Ext. 5. 6.1. The Appellant Nos. 1 and 2 were, thereafter, charge sheeted and they were tried under Sections 302/34IPC by the learned Sessions Judge for commission of offence of murder of Naren Dutta. 7. During the course of trial, prosecution examined as many as 9(nine) witnesses. It also got examined two witnesses as Court Witnesses. 8. On consideration of the statement of accused person recorded under Section 27 of the Evidence Act and also on appreciation of the evidence on record, the learned Judge convicted and sentenced the Appellants as aforesaid. 9. So far the death of Naren Dutta at his residential house in between the night of 3rd and 4th May, 1997 is concerned, there are evidence of Smti. Inamoni Dutta (PW-1), Smti. Dipti Dutta (PW-2), Phani Saikia (PW-3), Dehiram Dutta (PW-5) and Smti. Purnima Dutta (PW-7). All these witnesses are close relations and neighbours of the deceased, who on hearing hue and cry at the mid night, came out and saw the deceased Naren Dutta lying dead on his bed. r 9.1. According to PW-1, the incident took place at around 1 A.M. This witness also saw the rope lying near the dead body. In view of the overwhelming evidence on record, both oral and medical, death of the deceased as a result of strangulation by rope has not been disputed or challenged before-us by Mr. J.M. Choudhury, learned Senior Advocate of the Appellants. 9.2. As stated above, there is no direct evidence against the Appellants. The entire prosecution case hinges on circumstantial evidence and from the evidence on record, we find that the prosecution has relied on the following circumstances:- (i) The deceased had died at. J.M. Choudhury, learned Senior Advocate of the Appellants. 9.2. As stated above, there is no direct evidence against the Appellants. The entire prosecution case hinges on circumstantial evidence and from the evidence on record, we find that the prosecution has relied on the following circumstances:- (i) The deceased had died at. his own house at dead of night and at the relevant time these two appellants lived with him in that house; » (ii) The Appellant No. 2 Prabal Dutta made statement under S ection 2 7 of 1 the Evidence Act and led the police to recover the weapon of assault i.e. knife and missing handle of the skipping rope; (iii) Skipping rope was found near the dead body; (iv) Appellant No. 1 Rumi Bora Dutta gave a false explanation and tried to mislead the police by filing a false and fabricated FIR; (v) The Appellants did not come out with any explanation as to how the deceased died at dead night while sleeping in his house. 10. The principles regarding proof of a case based on circumstantial evidence were laid down firstly by the Apex Court in Hanuman Vs. State of Madhya Pradesh, AIR 1952 SC343 in following words :- "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." Further in SharadBirdhichandSarda Vs. State of Maharastra, AIR 1984 SC1622 the Apex Court referred to the following principles in this regard:- (1) The circumstances from which the conclusion of guilt is to be drawn should be folly established. State of Maharastra, AIR 1984 SC1622 the Apex Court referred to the following principles in this regard:- (1) The circumstances from which the conclusion of guilt is to be drawn should be folly established. The circumstances concerned must or should and not may be established; (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 probability the act must have been done by the accused. These principles were reiterated in Dhananjay Chatterjee Vs. State of West Bengal, 1994 (1) J.T. (SC) 33; State of Maharastra Vs. Suresh, (2000) 1SCC471 and Bothraj Vs. State ofJammu & Kashmir, AIR 2002 SC 3164. 11. Having reminded of these settled principles of law, let us examine whether the prosecution has been able to establish the above circumstances by leading reliable and cogent evidence? 12. From the evidence of the neighbouring witnesses including relations of the deceased and the Appellants, we find that the incident took place in between the night of 3rd and 4th May, 1997 and the deceased was found lying in his bed. Witnesses have also stated that the deceased used to live in the said house along with his wife i.e. the Appellant No. 1 Rumi Bora Dutta, their minor kids and the maternal nephew Appellant No. 2,Prabal Dutta. The mother of the deceased also used to reside in the contiguous room in the said house. The prosecution witnesses have deposed about the fact that these two persons used to live in that house along with the deceased and that on the fateful night these two Appellants were found present in the house. 12.1. The Court witness Sri Jatiram Dutta (CW-1), an old man, aged about 60 years and a close neighbour of the deceased, has also stated that on arrival at the house of the deceased, he found the wife Rumi Bora Dutta as well as accused Prabal Dutta present there. 12.1. The Court witness Sri Jatiram Dutta (CW-1), an old man, aged about 60 years and a close neighbour of the deceased, has also stated that on arrival at the house of the deceased, he found the wife Rumi Bora Dutta as well as accused Prabal Dutta present there. Presence of accused Prabal Dutta was admitted by the co-accused Rumi Bora Dutta in her statement under Section 313 Cr.P.C. Accused Prabal also admitted his presence in the said house on the night of the occurrence. 12.2. PW-9, the Investigating Officer has deposed that during investigation, he recorded statement of co-accused Prabal Dutta, who admitted his guilt and also informed the police that he would produce the knife and the handles of skipping rope. Accordingly the accused led him to the house of the deceased and produced the knife as well as two handles of skipping rope, which were seized by him vide Ext. 5. P W-1 and PW-3 have supported the evidence of PW-9 that the accused Prabal Dutta produced the knife and the handles of the skipping rope, which were seized by police. The relevant statements under Section 27 of the Evidence Act have already been quoted. So far as the confessional part is concerned admittedly, it is not admissible in evidence. 13. It has been submitted by Mr. Choudhury, that the seized articles i.e. the handless of skipping rope and the knife were not produced during the course of trial, and as such, it may not be construed as recovery under Section 27 of the Evidence Act. 13.1, The law is well settled that discovery of fact referred to under Section 27 of the Evidence Act is not the object recovered but the fact emphasized the place from where the object is recovered and the knowledge of the accused to it. So far the rope by which the deceased was allegedly strangulated, it was found lying near the dead body, which was separately seized and produced in Court and marked as Ext. 1, but strangely its two handles were missing and subsequently produced by the accused Prabal along with knife by which the injury was allegedly caused. The recovery of two handles is very significant as it demolishes the defence story that some miscreants entered into the house and killed the deceased by strangulating him with the rope. 1, but strangely its two handles were missing and subsequently produced by the accused Prabal along with knife by which the injury was allegedly caused. The recovery of two handles is very significant as it demolishes the defence story that some miscreants entered into the house and killed the deceased by strangulating him with the rope. If the alleged unknown miscreants brought the said skipping rope, the handles of the rope could not have been hidden by the accused Prabal. 13.2. At the stage, we recapitulate the following observations of the Apex Court in State of Maharastra Vs, Suresh, (2000) 1 SCC 4 71: JT1999 (9) SC 513, has held as under:- "26. We too countenance three possibilities when an accused points out the place where the dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But, if the accused declines to tell the criminal court that his knowledge about the -concealment was on account of one of the last possibilities, the criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the (Jourt as to how else came to know of it, the presumption is a well justified course to be adopted by the criminal court that the con-cealment was made by himself. Such an interpretation is not inconsistent wiuv.the principles embodied in Sectioa27, of the Evidence Act. 27. …..False answer offered by the accused when, his attention was drawn to the aforesaid circumstances renders that circumstance capable of inculpating him. In a situation like this such a false answer can also be counted as providing "a missing link" for completing the chain." . 13.3. In the present case, the accused has not come up with an explanation regarding ;recovery under Section 27 of the Indian Evidence Act. As stated above, recovery of the handles of the skipping rope is relevant and points to the guilt of the accused. 14. 13.3. In the present case, the accused has not come up with an explanation regarding ;recovery under Section 27 of the Indian Evidence Act. As stated above, recovery of the handles of the skipping rope is relevant and points to the guilt of the accused. 14. According to the prosecution, accused Rumi Bora Dutta lodged FIR (Ext. 2) to the effect that on the night of occurrence while she was sleeping along with her husband somebody knocked on the door, whereupon she opened the door and three miscreants, covering their faces with black clothes, entered into the house, tied her hands and kept in the drawing room pointing a pistol at her. Thereafter, two persons entered the bed room and came out after about 15 minutes and left the house along with her two years' old child. She subsequently raised alarm, and on entering the room she found her husband lying dead on the bed. The Investigating Officer has proved the FIR. However, we find that the accused has denied lodging of the FIR (Ext. 2) before the police. We also find that PW-2 went to the house of the deceased on hearing shout for help by the accused appellant Rumi Bora Dutta who told him the story as mentioned in the FIR (Ext. 2). Thus, notwithstanding her statement under Section 313 Cr.P.C, we can safely hold that the accused Rumi Bora Dutta had lodged the FIR (Ext. 2), Mr. Choudhury, however, submits that the filing of FIR as such, is not relevant as there was no finding of the fact that the contention of the FIR are false. 15. From the material evidence on record, we find the accused persons came out with a cook and bull story that in the mid night, some unknown miscreants came and killed her husband and went away taking their minor child along with them and thereafter left the child on the road for no apparent reason. The miscreants also left the skipping rope which was used for killing her husband, but surprisingly enough the wooden handles of the skipping rope were found hidden by the co-accused, who produced the same before the police and the witnesses. 16. The miscreants also left the skipping rope which was used for killing her husband, but surprisingly enough the wooden handles of the skipping rope were found hidden by the co-accused, who produced the same before the police and the witnesses. 16. Accused Rumi Bora Dutta is aged about 35 years having three kids and it is alleged that she was having illicit relationship with her own nephew, the co-accused Prabal Dutta, a young man of 23 years and the alleged incident is an out come of the said illicit relationship. On consideration of the evidence on record, we have no option but to hold that the statement made in the FIR or what has been stated to the witnesses by accused Rumi Bora Dutta as well as by the co-accused Prabal Dutta, were out-and-out a concocted and false story. 17. In Me?. Mahiruddin & Ors. Vs. State of Bihar, (1999)1 SCC252, the Apex Court observed that the false explanation given by the appellants soon after the incident as regards the cause of death supplies the missing link in the chain of circumstances. In State of Rajasthan Vs. Kheraj Ram, (2003) 8 SCC 224 , the Apex Court had observed as follows: ".....The conduct of the accused in going to the house of Gaina Ram(PW-9) and giving false news further aggravates the guilt pointing finger at the accused. In answering the last question "Do you have to say any more?", the accused has not even whispered a word as to what he did to protect at least any one of the victims or what type of resistance, if any, he offered or with what result. The accused has tried to draw red herrings to confuse and divert the attention of every one including the Investigating agencies from himself." 18. Admittedly, the Appellant No. 1 Rumi Bora was sleeping with her husband at that night and the Appellant No. 2 was also in the said house. Admittedly, at the dead of night her husband has been found dead due to strangulation. The accused appellants have not come out with any acceptable explanation as to how the deceased died. It was obligatory on the part of the accused to explain as to how the deceased was killed. The false explanation given in the FIR or false accusation has already been discarded by us. 19. The accused appellants have not come out with any acceptable explanation as to how the deceased died. It was obligatory on the part of the accused to explain as to how the deceased was killed. The false explanation given in the FIR or false accusation has already been discarded by us. 19. In view of what has been stated above, we find that the above circumstances have been fully established and they form a complete chain without leaving any room of doubt that the two appellants are the persons, who killed the deceased to screen their illicit relationship. The circumstances do exclude any other hypothesis or innocence of the accused persons. The circumstances invariably points finger on the two accused appellants and in that view of the matter the learned Sessions Judge was justified in recording the order of conviction. We concur with the findings of the learned Sessions Judge that the deceased Naren Dutta was killed by strangulation though, there was a cut injury on the person of the deceased, which as per medical evidence, was a superficial injury and not the cause of death. 20. This is a case of cold-blooded murder, where the husband, father of three children, has fallen prey to fee lust of his wife and as such the intention to cause death is writ large. The conviction and sentence of the accused appellants under Section 302/34IPC needs no interference, 21. In the result, the appeal is dismissed being devoid of merit.