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2008 DIGILAW 327 (GAU)

Srimanta Haloi v. State of Assam

2008-05-06

AFTAB H.SAIKIA, H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. A challenge has been made as to the legality and correctness of the Judgment and Order of conviction dated 15.09.2004 rendered by the learned Addl. Sessions Judge (Adhoc), Kamrup passed in Sessions Case No. 50(K)/2004 by which all the appellants were convicted and sentenced to suffer life imprisonment and fine of Rs. 5000.00 each, in default to suffer additional one year simple imprisonment under Section 302/34 I.P.C. Feeling aggrieved by the aforesaid Judgment and Order the instant appeal has been filed by the appellants. 2. For the purpose of appreciation of the appeal it would perhaps be appropriate for this Court to place the case of the prosecution at this stage which runs as under. DW 1, Smti Padumi Kalita is the wife of the deceased Ratneswar Kalita. The appellant Srimanta Haloi @ Melo is the brother-in-law of the deceased. The appellant Shri Khagen Haloi @ Sukuram Haloi is his father-in-law. The appellants Shri Ramesh Talukdar and Ranjit Das are co-villagers of the deceased Ratneswar Kalita. On the previous day of the occurrence, DW1 the wife of the deceased had been to her maternal home and stayed for the night. In the evening hours of 29.04.2000, deceased Ratneswar Kalita had been to the house of the appellant namely Khagen Haloi @ Sukuram Haloi and Srimanta Haloi @ Melo for the purpose of taking his wife DW 1 unto his residence. On request by the deceased to take his wife back to his residence both the appellants resisted, as a result of which there had been a jostle between the appellant Srimanta Haloi, Khagen Haloi and the deceased Ratneswar Kalita. Thereafter, the appellants Shri Ranjit Das and Ramesh Talukdar joined. All the four appellants together started assault on the deceased Ratneswar Kalita. In the meantime, one Phatik Mahanta, a co-villager who happened to the place of occurrence objected. He was also threatened and rather assaulted by Shri Ramesh Talukdar with a piece of fire wood, as a result of which he sustained injuries and being afraid of he left the place of occurrence immediately. On the next morning, it was known to the people of the locality that Ratneswar Kalita the deceased committed suicide by hanging himself in his residence. On the next morning, it was known to the people of the locality that Ratneswar Kalita the deceased committed suicide by hanging himself in his residence. A joint first information report was filed by Shri Phatik Mahanta, PW 1, Shri Kolia Boro, PW 4, Shri Kanan Kalita @ Kamal Kalita, PW 2 and other persons namely, Srimanta Kalita and Dharmeswar Das with Police. A case was registered and investigated into. During the investigation Police came to the place of occurrence where the dead body was found hanging. The body was taken down and an inquest was conducted. The dead body was sent for post-mortem examination and autopsy was done. The investigation agency after completion of the investigation filed charge sheet against all the appellants under Section 302/34 I.P.C. The case was thereafter committed to the Court of Sessions for trial of the appellants. Having found prima facie case against all the appellants by the learned Trial Court, a charge was framed under Section 302/34 I.P.C. All the appellants pleaded not guilty to the charge. Altogether nine persons were put to the witness box by the prosecution to substantiate the charge so framed against the appellants. Defence also examined the wife of the deceased Smti. Padumi Kalita as a defence witness. The learned Trial Court at the conclusion of the trial convicted all the appellants and sentenced them as above. 3. We have heard Mr. A.M. Mazumdar, learned Sr. Counsel appearing for the appellants and Mr. K.A. Mazumdar, learned Public Prosecutor, Assam. 4. Mr. Mazumdar, learned Sr. Counsel appearing for the appellants at the very outset of his argument submitted that the evidence on record, more particularly the evidence of the Doctor PW 8, do not suggest/justify to reach at an acceptable conclusion that the appellants killed the deceased on the fateful night. Referring to the evidence of PW 8, Dr. Patul Mahanta who, however, did not conduct the post-mortem examination on the dead body, Shri Mazumdar, learned Counsel submitted that the evidence on record only speak for commission of suicide by the deceased. Shri Mazumdar while advancing his argument in the case further submitted that though the appellants on the night of 24.02.2000 did assault the deceased, which resulted in some injuries on his person, the injuries discovered on the dead body by PW 8, the Doctor cannot result the death of the deceased in the ordinary course of nature. Shri Mazumdar while advancing his argument in the case further submitted that though the appellants on the night of 24.02.2000 did assault the deceased, which resulted in some injuries on his person, the injuries discovered on the dead body by PW 8, the Doctor cannot result the death of the deceased in the ordinary course of nature. PW 8, the Doctor in his evidence very specifically stated that the death occurred due to asphyxia resulting from hanging. Referring to the symptoms appearing in the evidence of PW 8 and PW 9, it was strenuously argued by Shri Mazumdar, learned Counsel for the appellants that the ligature mark and other symptoms which were discovered on the dead body during inquest and autopsy go to show that the deceased committed suicide; perhaps being felt ashamed of the assault by the appellants, his in laws (father-in-law and brother-in-law) along with two others. 5. Submissions so advanced by Shri A.M. Mazumdar certainly led us to scrutinize the evidence of PW 8 and PW 9. On 30.04.2000, PW 8 was working in the Gauhati Medical College and Hospital as a Medical Officer in the Department of Forensic Medicine. Dr. P.C. Sarma, was then Head of the Department of the Deptt of Forensic Medicine who conducted the post-mortem examination on the dead body of Ratneswar Kalita son of Akan Kalita, Village Matia of Azara PS on being identified by Constable No. 160 Taj Narayan Singh. Dr. P.C. Sarma head of the Department Forensic Science while conducting post-mortem examination found as follows: External Appearance: Male dead body of average built; complexion is Dark Brown. Dressed in brown Long pant; one thread on left wrist. Eyes closed; Mouth partly open, tongue tip between the teeth. Dribbling of Saliva marks present over the chin and front of the chest, abdomen up to umbilicus along midline seminal stain present on the teeth of penis. Faeces present around anus. Stain of dust of hilly earth present in back of chest, abdomen up to the level of lumbo sacral joint and on both soles of feet. Rigor mortis present all over the body. Injuries: (1) Abrasion 1 cm x 1 cm in size present at 0.5 cm below outer angle of RT Eye. (2) Contusion 2 cm x 2 cm in size present in front of Rt Shoulder 1 cm below acromion process. Rigor mortis present all over the body. Injuries: (1) Abrasion 1 cm x 1 cm in size present at 0.5 cm below outer angle of RT Eye. (2) Contusion 2 cm x 2 cm in size present in front of Rt Shoulder 1 cm below acromion process. (3) Contusion 1 cm x 1 cm in size present on the back of left rib joint at midline. (4) Multiple Scratches abrasions varying range 2 cm to 4 cm in length with dust stain of hilly earth present on back of chest at places and multiple contusions varying from 1 cm x 1 cm to 2 cm x 1 cm is size with stain of hilly earth present on lower part of back of chest and abdomen or places at up to Lumbo sacral joint. All contusions read in colour. In relation to neck region one oblique and non-continuous ligature mark, 28 cm x 3 cm on front side of the neck present high up around the neck. The non-continuous position of the knot being present behind the neck below the occiput. On dissection parchment like appearance on floor of the ligature mark and contusion and congestion of neck tissue around ligature mark present. 6. Therefore, from the scrutiny of the evidence of PW 8 we have found the Mowing (1) that the deceased received some injuries on his person which were ante mortem in nature. (2) that the symptoms discovered by the Doctor also spelt of symptoms which are usually found in the case of hanging. In the Medical Jurisprudence and Toxicology (Seventh Edition) by Dr. P.C. Dixit at page 361 some symptoms found incorporation in the case of hanging and ligature strangulation. Since, we are not concerned with ligature strangulation as appearing from face of the record, we must concentrate to the symptoms that incorporated in the column 'hanging'. In case of hanging, the following symptoms are generally seen prominent. Trait Hanging 1. Face Pale and petechiae are not common 2. Ligature mark Oblique usually seen high up in the neck above the thyroid cartilage and incomplete 3. Base Pale, hard and parchment like. 4. Subcutaneous Tissue It is white, hard and glistening below the mark 5. Neck Stretched and Elongated. 6. Hyoid Bone Fracture is common 7. Thyroid Cartilage Fracture is rare 8. Tongue Swelling and protrusion are not so common. 9. Saliva Usually runs out of mouth. 10. Base Pale, hard and parchment like. 4. Subcutaneous Tissue It is white, hard and glistening below the mark 5. Neck Stretched and Elongated. 6. Hyoid Bone Fracture is common 7. Thyroid Cartilage Fracture is rare 8. Tongue Swelling and protrusion are not so common. 9. Saliva Usually runs out of mouth. 10. Bleeding From the nose, mouth 11. Involuntary Of the faeces and discharge urine are not common. 12. Seminal fluid Usually seen at the Glans penis. 7. The above are the symptoms generally found in the case of hanging. In the present case from the evidence of PW 8 we have come across symptoms in respect of tongue, saliva, faeces, seminal stain and ligature mark. While conducting the post-mortem examination Doctor found tongue tip between the teeth, dribbling of saliva marks up to umbilicus, seminal stain present on the tip of the penis and faeces present around the anus and one oblique ligature mark. These symptoms which find place in the Text Book of Medical Jurisprudence and Toxicology under the head 'Hanging' may not be always found in case of face, thyroid Cartilage, Tongue, bleeding and involuntary discharge. 8. Mr. Mazumdar, learned Sr. Counsel, therefore, taking aid of the above symptoms found on the dead body while conducting inquest and the post-mortem examination by PW 9 and PW 8 respectively, submitted that the presence of the symptoms made the case at hand very clear and lucid that the deceased committed suicide and he was never killed as alleged by the prosecution. 9. We have already found from the evidence on record, the evidence of PW 8, that the Doctor who had conducted the postmortem examination was not brought before the Court to justify himself in respect of the findings that arrived at while conducting the post-mortem on the dead body. In his place it is seen that a junior doctor (PW 8) was examined by the prosecution. The defence did not cross-examine at length in respect of the injuries discovered and the symptoms found on the dead body, perhaps for non examination of the witness who conducted the post-mortem examination. 10. From a careful perusal of the evidence of other witnesses it is noticed that the assault had been witnessed on the deceased by the appellants by PW 1 Shri Phatik Mahanta and PW 2 Shri Kaman Kalita @ Kamal Kalita, PW 1 who were informants of the ease. 10. From a careful perusal of the evidence of other witnesses it is noticed that the assault had been witnessed on the deceased by the appellants by PW 1 Shri Phatik Mahanta and PW 2 Shri Kaman Kalita @ Kamal Kalita, PW 1 who were informants of the ease. PW 1 in his evidence categorically stated that on 29.04.2000 at about 8.30 PM while he was proceeding towards the house one Forjan Ali, having heard some altercation in the house of the appellant Shri Srimanta Haloi went there and noticed an altercation in between the deceased Ratneswar Kalita and Sukuram Haloi and Srimanta Haloi, both the appellants and one Moni Haloi. It is to be noted at this stage that Moni Haloi was not charge sheeted by the prosecution agency. It is the further evidence on record that Smti Padumi Haloi, the wife (DW 1) of the deceased at the. relevant point of time was in the house of the-appellant Sukuram Haloi. It was Ratneswar Haloi, the deceased who came to take her from his in-law's residence but the in-laws did not permit the deceased to take her back. As a result, some altercation took place between them. It is the further evidence on record that the appellants Srimanta Haloi, Sukuram Haloi and Moni Haloi all together pushed the deceased by his neck and had taken to a near by shop by giving fists and blows. Ramesh Talukdar came and joined. He too started assault on the deceased with fire wood. Being thus assaulted the deceased tried to run away from the place of occurrence but he was unable to do so because he fell down on the ground. 11. The appellant, Shri Ramesh Talukdar sat then on the chest of the deceased and stared giving fists and blows. The deceased Ratneswar Kalita became unconscious. In the meantime, appellant Shri Ranjit Das started assault on the deceased with a branch of tree. Seeing the assault on Ratneswar Kalita by the appellants he tried to resist but he was also assaulted by appellant Ranjit with a branch of tree. Being afraid, he left the place of occurrence. On the next morning he learnt that Ratneswar Kalita committed suicide by hanging himself with the help of a towel. He along with Gobinda Kalita, Kolia Boro and others filed an FIR Exhibit 1 with the police. Being afraid, he left the place of occurrence. On the next morning he learnt that Ratneswar Kalita committed suicide by hanging himself with the help of a towel. He along with Gobinda Kalita, Kolia Boro and others filed an FIR Exhibit 1 with the police. Therefore, from this piece of evidence it is seen that he had witnessed the assault on the deceased by the appellants by fire wood and branch of tree etc. and on the next morning the deceased was found hanging. 12. PW 2 Shri Kaman Kalita @ Kamal Kalita also claimed to have witnessed carrying of the deceased by some people from the gate way of Khagen Haloi @ Sukuram. He proved a circumstance against the appellants. He stated that the occurrence took place on 29.04.2000 and the Ratneswar Kalita died on 30.04.2000. He had a shop at Rani Road which was run by his son. At the relevant point of time i.e. on 28.04.2000 he was sitting in their shop and at that time heard some sounds including some alarm like "Morilu" "Morilu". Having heard the sound which came from the house of the appellant Sukuram Haloi, he approached a little but he was obstructed from proceeding by Srimanta Haloi @ Melo, one of the appellants and one Moni Haloi. He returned and remained standing at the gate way. After sometime, the sound which came from the house of Sukuram Haloi diminished. While he was standing at the gate way he saw some persons taking Ratneswar Kalita to his residence from Sukuram's gate way (mangala). Ratneswar Kalita's house is situated far away from the house of Sukuram Haloi. Next day he came to know that Ratneswar Kalita died by hanging himself. This piece of evidence also goes to show that on 29.04.2000 he hard some sound like "Morilu" "Morilu" from the house of the appellant Sukuram Haloi. He tried to witness but he was prevented. He had seen the deceased being carried away by some people from the Sukuram's house. On the next day morning he learnt that Ratneswar Kalita died by hanging himself. It is the further evidence on record that when the dead body of Ratneswar Kalita had taken down and the wearing apparel were removed, he noticed some marks of scratch. One villager also informed that it was Melo, Mani and Sukuram who killed Ratneswar. 13. On the next day morning he learnt that Ratneswar Kalita died by hanging himself. It is the further evidence on record that when the dead body of Ratneswar Kalita had taken down and the wearing apparel were removed, he noticed some marks of scratch. One villager also informed that it was Melo, Mani and Sukuram who killed Ratneswar. 13. The evidence of other witnesses, namely, PW 3, PW 4, PW 5, PW 6 and PW 7 are not found to have played any important role in the context of the assault on the deceased Ratneswar. PW 3 Shri Biju Kalita, brother of the deceased came to the place of occurrence on the next morning being informed that the deceased Ratneswar Kalita died. PW 4 is Kolia Boro, one of the informants. He does not claim to have witnessed the assault on the deceased by the appellants. However, he stated that while the police held the inquest on the dead body he saw some black marks of injury on the dead body of Ratneswar. One pogha (Rope) which was found lying near the dead body was also seized by the police vide Ext. 3. Except the statement, nothing has been divulged by the PW 4 in the context of the assault of Ratneswar Kalita, the deceased by the appellants. Anukul Das, Jiten Das and Dharmeswar Das who were examined as PW 5, PW 6 and PW 7 respectively also do not speak substantially against the appellants in the context of killing Ratneswar, the deceased. 14. From the evidence of PW 1, PW 2 and PW 8, only two hypothesis are possible. Either the deceased after the assault had been carried away by the appellants, unto his residence and was hanged, while he was alive with the help of a gamocha or, the deceased committed suicide. Now, to answer the first hypothesis it is to be seen whether the appellants had carried the deceased from the gate way unto his own residence. In this context, the evidence of PW 2 would be very much relevant. We have already discussed hereinabove that PW 1 had witnessed the assault on the deceased by the appellants. However, P W 2 did not see the actual assault on the deceased by the appellants. In this context, the evidence of PW 2 would be very much relevant. We have already discussed hereinabove that PW 1 had witnessed the assault on the deceased by the appellants. However, P W 2 did not see the actual assault on the deceased by the appellants. He has proved the circumstances that he heard some sound from the house of the appellant Sukuram and also screaming of the deceased 'morilu' 'morilu'. The evidence speak that the deceased was carried from the gate way by some persons unto his residence. But this witness was unable to name those persons who actually carried the deceased from the gate way of the appellant. Now the question arises whether the deceased died as a result of the assault on him by the appellants with the help of the fire wood, branch of tree and fists and blows. It is nowhere found on the evidence of PW 8 that the injuries which were detected by the Doctor (Shri P.C. Sarma) were sufficient to cause death in the ordinary course of nature. When this piece of evidence is missing from the evidence of PW 8 it would, perhaps, not be appropriate to take a view that injuries found on the dead body of the deceased were sufficient to cause death of the deceased. There is also no evidence on record that it were the appellants who carried the deceased from the house of the appellant unto his residence and-hanged him while he was alive. The symptoms which are incorporated in the text book of Medical Jurisprudence and Toxicology by Dr. P.C. Dixit under the head "Hanging" can it assist the Court in arriving at a decision that the deceased died as a result of injuries sustained as a result of assault and subsequent hanging while alive by the appellants. 15. This question would have been aptly answered by Dr. P.C. Sarma had he been examined by the prosecution. No attempt was apparently made by the prosecution nor by the trial Court to examine the witness. Therefore, some vital evidence did not come unto the surface sufficient to rope the appellants under the charge Under Section 302 I.P.C. The symptoms which were apparent on the face of the record, gave an inference that the deceased might have committed suicide by hanging. Unless Dr. Therefore, some vital evidence did not come unto the surface sufficient to rope the appellants under the charge Under Section 302 I.P.C. The symptoms which were apparent on the face of the record, gave an inference that the deceased might have committed suicide by hanging. Unless Dr. P.C. Sarma is put in the witness box neither of the hypothesis can be answered properly. 16. If we take the evidence of PW 2 that the deceased had been carried unto his residence and hanged him resulting his death-the natural question would be—who were they who carried the deceased from the gate way of Sukuram's house. Evidence of PW 2 is silent in this context. He only said that he had seen the deceased being carried way by some people. The words 'some people' do not necessarily mean the appellants. Therefore, no presumption can be drawn against the appellants. 17. In the facts situation it would perhaps be appropriate to cause remand of the case to the Court of Session i.e. Addl. Sessions Judge (Adhoc), Kamrup for a de novo decision. 18. In the result the Judgment and Order of conviction dated 15.09.2004 rendered by the learned Addl. Sessions Judge (Adhoc) Kamrup in Sessions Case No. 50(K)/2004 are set aside and quashed. The case is remanded back for a fresh decision with the following directions: (1) Learned trial Court shall make every endeavour to put Dr. P.C. Sarmah, who conducted the post-mortem examination on the dead body of Ratneswar Kalita for recording his evidence. Liberty shall be given to defence to cross-examine him. (2) Learned trial Court shall also reexamine PW 2 Shri Kaman Kalita @ Kamal Kalita. Defence shall be afforded opportunity to cross-examine him. (3) The exercise shall be completed within a period of two months. The criminal appeal stands disposed of in terms of the above observations and directions.