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2005 DIGILAW 804 (GAU)

Gun Gun Sahu @ Ajit Sahu v. State of Assam

2005-11-29

ANIMA HAZARIKA, P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. P.S. Deka, learned Amicus Curiae for the Appellant and Mrs. A. Begum, learned Public Prosecutor of Assam. 2. On 28.9.98, Mohan Kumar Rikikson, an 8 years old son of Rajbali Rikikson was found missing from the village and thereafter, a missing entry was lodged in the next day i.e. on 30.9.98 at Dholai police station, Silchar. The dead body of Mohan Kumar Rikikson was found lying in the jungle and thereafter, the present FIR was lodged and police made investigation. The dead body was sent for post mortem examination which was conducted by Dr. K.K. Chak (sic) orty (P.W. 1) who found as follows: A male dead child of average built, wearing a green sando ganjee and black half-pant, handed over to escorting constable. Epidermis peeled off from the whole body. Full grown maggot scrawling over the body. Foul smell coming out. Rigormortis passed off. Injuries: (1) Cut injury back of neck at the level of 2nd cervical region 12x2x2 cm. with cut in muscle, uncles, nerves - and 2nd cervical bone. (2) Cut injury-occipital region of scalp - 5x2x1/2 cm. Edges of both the wounds regular - Blood clots are adherent to the tissues which resist plain water washing. The wounds are ante mortem, and caused by sharp weapons. Stomach contained partly digested food materials. Opinion: Death was due to shock and haemorrhage as a result of ante mortem cut injury to the neck. Caused by sharp weapon. Homicidal in nature. 3. Mr. Rajbali Rikikson (P.W. 2) and Smti Champa Rikikson (P.W. 3) are the two unfortunate parents of the deceased. Sri Dhanraj Rikikson (P.W. 4) and Sri Uttam Rikikson (P.W. 5) are the two co-villagers. All four witnesses have deposed about the missing of the deceased on 28th September, 1998 and subsequent discovery of the dead body in the jungle with injuries which has been corroborated by the medical evidence. 4. The trial court recorded evidence that the death is homicidal in nature and the said evidence has not been challenged before us. 5. In the present case, there is no eye witness to the occurrence. No one saw the deceased being assaulted. The learned trial court has recorded the impugned order solely on the statements of P.W. 4 and P.W. 5 regarding last seen together. 6. 5. In the present case, there is no eye witness to the occurrence. No one saw the deceased being assaulted. The learned trial court has recorded the impugned order solely on the statements of P.W. 4 and P.W. 5 regarding last seen together. 6. Before proceeding with the merit at this stage, we like to recapitulate the basic principle covering the circumstance of last seen together. 7. In the case of State of U.P. v. Satish, (2005) 3 SCC 114 , the Apex Court held: The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and die deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. 8. In the case of Mr. Ramesh Babulaldoshi v. State of Gujrat, (1996) 9 SCC 225 , it was held by the Apex Court that only the circumstances of the case evidence of last seen together, even if it stands proved by itself, does not lead to the only conclusion that the Appellant was guilty of the offences alleged against him. 9. Now coming to the evidence on record we find that neither P.W. 1 nor P.W. 2 had any knowledge or had seen their son in the company of the accused Appellant. P.W. 3 and P.W. 4 had stated that they had seen the deceased in the company of the accused on 28th September, 1998. Both of them were proceeding towards the jungle and the accused was chewing sugar cane. The defence by cross examination, brought out that these two witnesses had never claimed to have seen the deceased in the company of the accused. In their statements under Section 161 Code of Criminal Procedure, the contradiction was put to the witnesses and thereafter, proved through Investigating Officer as required under law. The defence by cross examination, brought out that these two witnesses had never claimed to have seen the deceased in the company of the accused. In their statements under Section 161 Code of Criminal Procedure, the contradiction was put to the witnesses and thereafter, proved through Investigating Officer as required under law. The learned trial court, however, refused to give much importance to the above contradictions by observing as below: P.W. 6 contradicted the evidence of P.Ws. 4 and 5 that they told the parents of the deceased i.e. P.Ws. 2 and 3 that the accused was seen taking the deceased towards the jungle on the day of occurrence. In State of Assam v. Goljer Ali and nine other (1997) 1 GLR 420 Hon'ble High Court has held that lapses or laches on the part of investigation Officer would not necessarily result in discarding the prosecution case. In State of Punjab v. Gurmit Singh and other, AIR 1996 SC 1993. Hon'ble Supreme Court has also held that improvements and variation made by the witnesses in their earlier and later statements is not sufficient to make their statement infirm. It has also been held in the Matadin and other v. State of U.P. AIR 1979 SC 1234 , Hon'ble Supreme Court has observed that the statements given by the witnesses before the police are meant to be brief statements and could not take the place of evidence in the Court. When the omissions are vital, they merit consideration, but mere small omissions will not justify a finding by a Court that the witnesses concerned are self contained liars. 10. So far as the contradiction is concerned, we find that the same has got importance under law and the trial court has also held this as contradictory evidence. However, we must not give much importance on the fact that there is mere omissions of evidence made by the statements i.e. the trial court has refused to apply his mind to the surrounding circumstances and the materials on record. However, we must not give much importance on the fact that there is mere omissions of evidence made by the statements i.e. the trial court has refused to apply his mind to the surrounding circumstances and the materials on record. The informant (P.W. 2) had deposed that his son Mohan Kumar Rikikson was found missing since 29th September, 1998 and on the next morning, he lodged a missing complaint at the Dhola P.S. The police advised him to search for his son himself which shows that till that point of time P.W. 2 had no information about his missing son or about the evidence of last seen together. On 30.9.98, P.W. 2 including P.W. 4 and P.W. 5 who were searching for the missing Mohan Kumar in the nearby jungle, recovered the dead body and thereafter, lodged the FIR (Ext.-2). The quotation of the FIR is very relevant: But after making several enquiries, I came to know from a co-villager Sri Babul Sahu that at about 3 P.M. on 28.9.98 he had seen the above mentioned accused person taking my son towards the jungle near the homestead offering him sugarcane. Having received this information at about 12 noon this day, i.e. on 30.9.98,I came to the jungle and found my son lying dead on the ground with two cut injuries in the neck. So I believe that the aforesaid accused person killed my son injuring him with some sharp weapon. 11. We find that the information regarding last seen together was conveyed to P.W. 2 by one Babul Sahu and that too on 30th September, 98 in the afternoon. 12. Sri Uttam Rikikson (P.W. 5) has deposed: It would be about 4/5 p.m. after dusk, the parents of the deceased came and started searching for their son. We also searched for the deceased, but the deceased was not found on that night thereafter, we searched another two days. On the 3rd day, we found the dead body of the deceased in the jungle near the Tilla with mark of cut injuries on the back side of the neck of the deceased. Thereafter, the matter was informed to the police. 13. On the 3rd day, we found the dead body of the deceased in the jungle near the Tilla with mark of cut injuries on the back side of the neck of the deceased. Thereafter, the matter was informed to the police. 13. It is thus clear that P.W. 5 neither informed P.W. 2 that they had seen the deceased in the company of the accused on 28 A September, 1998 as claimed by P.W. 2 nor he made the above statement before police. On examination of the P.W. 6 the trial court tried to brush aside the above fact by stating that there may be omission on their part' but we can examine the matter from another angle. If P.W. 4 and P.W. 5 had also seen the deceased in the company of the accused on 28.9.98 afternoon and thereafter, they were searching the missing boy along with P.W. 2 why? Nothing prevented them from telling the parents that they had seen the deceased in the company of the accused which was a natural human reaction and more so, when we find that P.W. 5 is own nephew of the P.W. 2. We also find that the missing report was given by P.W. 2 in the next day. Moreover, if the villagers had came to know that the minor was missing and he was last seen in the company of the accused, instead of searching for the boy in the village or around the jungle, they would have first of all caught hold of the person, in whose company the deceased was last seen, to find out his whereabouts but the villagers merely suspected that the boy might have been killed by the accused who was named. 14. In this case, Babul Sahu was most important witness but for the reasons best known to the prosecution, he has not been examined. So far P.W. 4 and P.W. 5 are concerned, we hold that their claim that they had seen the deceased in the company of the accused is an obvious development and it cannot be accepted as true version. The finding of the trial court that it was a mere omission, cannot be accepted because law is settled that the material of omission is deemed to be vital contradiction. The finding of the trial court that it was a mere omission, cannot be accepted because law is settled that the material of omission is deemed to be vital contradiction. The story of P.W. 4 and P.W. 5 that the deceased and the accused were last seen together stands fully demolished and there is no other evidence at all to prove the 'last seen together'. In this case, except the evidence of last seen together by P.W. 4 and P.W. 5, there is no other circumstance or material appearing against the accused Appellant. The Investigating Police Officer has deposed that during investigation, he had seized one dao and a full shirt from the house of the accused which allegedly belonged to the accused. The P.W. 6 has deposed that the said seized dao and shirt has been recognized or identified to be belonging to the accused and not to the deceased. Moreover, the seized articles were also not produced before the trial court to prove whether the seized articles belonged to the deceased or not. 15. In the circumstances, stated above, we hold that this is a case of no evidence as there is no reliable evidence against the accused. The accused is therefore, acquitted. The appeal stands allowed. The order of conviction and sentence entered by the trial court is set aside. Let the Appellant be released from jail forthwith, if not wanted in any other case. Send down the records. The fees of Amicus curiae is fixed at Rs. 2,500/-. Appeal allowed.