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2008 DIGILAW 582 (GAU)

Ramdhan Mili v. State of Assam

2008-08-07

AFTAB H.SAIKIA, HRISHIKESH ROY

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. J.M. Choudhury, learned Sr. counsel assisted by Mr. B.M. Choudhury, learned Counsel for the Appellants and Mr. Z. Kamar, learned P.P., Assam. 2. The conviction of the Appellants under Sections 302/201/34, IPC and the resultant sentence each of them to undergo imprisonment for life and to pay a fine of Rs.3000/-, in default, to rigorous imprisonment (for short, 'RT) for another 6 months for the offence under Sections 302/34, IPC and sentence each of them to undergo R.I. for 3 years and to pay a fine of Rs.2,000/-, in default to R.I. for another 3 months for the offence under Sections 201/34, IPC so imposed by the learned 1st Addl. Sessions Judge, (Ad hoc), Sibsagar by his judgment and order dated 24.3.2003 passed in Sessions Case No. 13(S-C) 2001 are the subject-matter of challenge in this Criminal Appeal preferred by the Appellants. 3. The facts in brief as unfolded are as follows: 4. The prosecution case in brief is that on 30.11.1997 the complainant Dharmeswar Mili (PW1) lodged an Ejahar at the Suffry police outpost under Sonari police station wherein the complainant alleged that in the evening on 30.11.1997 his younger brother Bhadreswar Mili (hereinafter referred to as 'the deceased') was murdered by miscreants near the dwelling house of Dulal Ghatowar (PW 3) of village Ranga Pathar and thereafter the dead body of the deceased was concealed by the offenders for causing disappearance of the evidence of the offence. It was also alleged by the complainant that on query he came to know that his younger brother the deceased was murdered by the accused Ramdhan Mili, Bapdhan Mili and Umeswar Darik and thereafter the dead body of the deceased was thrown into the water of the river Suffry. On receipt of the written Ejahar from the complainant, police registered a case and started investigation. During the course of investigation police forwarded 4 witnesses to the Court of law for recording their statements under Section 164 of Code of Criminal Procedure. The dead body of the deceased Bhadreswar Mili was recovered on being led by the accused persons. After completing the investigation police submitted charge-sheet against the accused persons namely Ramdhan Mili, Umesh Darik and Bapdhan Mili under Sections201/302/34 of IPC and sent them up to stand trial under the said sections of law. 5. The dead body of the deceased Bhadreswar Mili was recovered on being led by the accused persons. After completing the investigation police submitted charge-sheet against the accused persons namely Ramdhan Mili, Umesh Darik and Bapdhan Mili under Sections201/302/34 of IPC and sent them up to stand trial under the said sections of law. 5. The accused Bapdhan Mili absconded and hence the case was filed against him for the time being. The accused Ramdhan Mili and Umeswar Darik appeared before the learned Sub-Divisional Judicial Magistrate, Charaideo, Sonari. Copies were furnished to the accused persons complying with the provisions of Section 207 of Code of Criminal Procedure. Since the offence under Section 302 of IPC was exclusively triable by the Court of Sessions, the learned Sub-Divisional Judicial Magistrate, Charaideo, Sonari committed the case to the Court of Sessions for trial and accordingly the case was registered as Sessions Case No. 13(S-C) 2001. 6. The cases was ultimately transferred to the file of learned Sessions Judge for disposal and accordingly the case was registered as Sessions Case No. 130(S-C) 2001. Both the accused appeared. After hearing the learned Counsel representing the Sate and the accused persons and considering the documents and papers submitted under Section 173, Code of Criminal Procedure the learned Sessions Judge framed formal charge under Sections 302/201/34 of IPC against the accused persons. The charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. 7. In order to bring home the charge under Sections 302/201/34 of IPC against the accused persons, the prosecution examined altogether 9 witnesses including the Investigating Officer (I.O.) who conducted the investigation of the case. The accused persons had adduced none of their defence and they denied the charges leveled against them. 8. 7. In order to bring home the charge under Sections 302/201/34 of IPC against the accused persons, the prosecution examined altogether 9 witnesses including the Investigating Officer (I.O.) who conducted the investigation of the case. The accused persons had adduced none of their defence and they denied the charges leveled against them. 8. The learned 1st Additional Sessions Judge (Ad-hoc), Sibsagar on proper appreciation of the materials evidence on record so examined by the prosecution including the materials so exhibited as well as upon hearing the learned Counsel for the parties, found the accused/Appellants guilty from the charges under Sections 302/201/34 of IPC and sentenced them to rigorous imprisonment for life under Sections 302/201/34, IPC and resultant sentence each of them to undergo imprisonment for life and to pay a fine of Rs.3000/- in default, to rigorous imprisonment (for short 'R.I.') for another 6 months for the offence under Sections 302/34, IPC and sentenced each of them to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.2,000/- in default to R.I. for another 3 months for the offence under Sections 201/34, IPC by his impugned judgment and order. The learned Judge ordered that both the sentences would run concurrently. 9. Admittedly, there was no eye-witness to the occurrence and the entire conviction was basically based on circumstantial evidence and that too relying on Section 27 of the Indian Evidence Act, (for short, 'the Act'), 1872. 10. Impugning the conviction and sentence of the Appellants, Mr. Choudhury, learned senior counsel has forcefully contended that Section 27 of the Act has no applicability in the instant case. His whole contention is that there is no information as required under the law, whatsoever provided by the accused persons which led to the discovery of the dead body of the deceased from the river Suffry. Referring to the testimony of PW 1 Shri Dharmeswar Mill, informant and brother of the deceased, PW 3 Shri Dulal Ghatowar, PW 4, Shri Bokhar Darik with the testimony of PW 8 Shri Dilip Darik including PW 9 the Investigating Officer, the learned Counsel has submitted that the evidence of those witnesses only signifies the recovery of the dead body of the deceased on being shown by the two accused/Appellants by the police. But in the evidence of the Investigating Officer PW 9, there was no whisper that the accused persons had made any statement either verbally or in writing to that effect. It is also stated by Mr. Choudhury, learned senior counsel that the present I.O. was not the original I.O. because the original I.O. died who did all the investigation. His main thrust is that police had the earlier knowledge about the dead body of the deceased that being thrown in the river Suffry and that was evident from the deposition of PW 1 who clearly mentioned that in the evening around 4.30 p.m. on 30.11.1997 they came to learn that accused Ramdhan, Bapdhan and Umeshwar Mili had killed his brother and left his brother's dead body near Phuli Ghatowar's house. That being the position, information was being already known to the police about the location of the dead body of the deceased and as such, the applicability of Section 27 of the Act does not arise. Further according to him, the recovery of the dead body from the river which was made in consequence of information did not attract Section 27 in the instant case as the same information was already been available with the police. In such circumstances, conviction of the Appellants cannot be upheld solely on the basis of Section 27 of the Act. Relying on the testimony of those witnesses as referred to above as well as the statements of the Appellants recorded under Section 313, Code of Criminal Procedure, Mr. Choudhury, learned senior counsel has submitted that there is no whisper whatsoever that they made any statement before the police while they were in custody as regard the recovery of the dead body of the deceased. 11. To bolster upon such submissions, Mr. Choudhury, learned senior counsel for the Appellants has relied on the following judicial pronouncements: 1. AIR 2003 SC 4377 State of Haryana v. Jagbir Singh. 2. (2005) 11 SC 600 State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru. 3. (1996) 2 GRL 373 Bijay Barman and Anr. v. State of Assam. 12. Mr. Choudhury, learned senior counsel denying the involvement of both the Appellants in the incident of killing the deceased, has further contended that there were three accused persons who had been involved in the alleged offence. Surprisingly one accused persons Bappdhan Mili fled away and absconded. 3. (1996) 2 GRL 373 Bijay Barman and Anr. v. State of Assam. 12. Mr. Choudhury, learned senior counsel denying the involvement of both the Appellants in the incident of killing the deceased, has further contended that there were three accused persons who had been involved in the alleged offence. Surprisingly one accused persons Bappdhan Mili fled away and absconded. The other two accused/Appellants were arrested by police at about 10.00 p.m. on the day of occurrence while they were sleeping in their houses. According to him, had they been involved in the said episode, they would have also fled instead of sleeping their own house at night after commission of the offence in the evening. 13. On the other hand Mr. Z. Kamar, learned P.P., Assam, supporting the impugned conviction and sentence, has vehemently contended that showing the dead body of the deceased straightway itself while they were brought near the Suffrai river, would signify that they had made their statements and that statements, accordingly, to Mr. Kamar were being the oral statements. Further as regards the conduct of the Appellants, it is submitted by the learned P.P. that they themselves showed the dead body on being led by them and as such Section 27 of the Act has got its applicability herein. So, the learned Judge had not committed any error in passing the impugned conviction and sentence as indicated above against the Appellants. 14. In support of this case, he has relied upon the following judicial pronouncement: 1. (2006) 13 SCC 36 Anil alias Raju Namdev Patil v. Administration of Daman and Diu, Daman and Anr. 2. 2008 (1) GLJ 62 Anup Nath and Ors. v. State of Assam. 15. We have given our thoughtful and anxious consideration of the extensive and lengthy arguments so canvassed by the learned Counsel for the parties. We have also scrupulously perused the depositions of the prosecution witnesses particularly, the evidence of PW 1, PW 3, PW 4 and PW 8 as well as PW 9. It is seen from the evidence of the above witnesses that all those witnesses PW 1, PW 3, PW 4 and PW 8 deposed that after the assault at night the Appellants were brought to the river Suffrai and there they showed the dead body of the deceased and they carried the dead body to the police station. It is seen from the evidence of the above witnesses that all those witnesses PW 1, PW 3, PW 4 and PW 8 deposed that after the assault at night the Appellants were brought to the river Suffrai and there they showed the dead body of the deceased and they carried the dead body to the police station. At the same breath, the evidence of PW 9 depicted a different story because in his evidence there was no whisper in the statement that on the basis of information given by the Appellants the dead body of the deceased was recovered. We have also noticed the conduct of the Appellants immediately after the occurrence. One of the accused Bapdhan Mili fled away after the occurrence and declared hostile. The other two accused persons made their statements and the same were recorded by the Judicial Magistrate under Section 313, Code of Criminal Procedure. From the evidence on record all those witnesses mentioned above it would reveal that immediately after commission of offence they were sleeping in their houses and having been arrested by police, they were taken to the river Suffry and after recovery of the dead body, they lifted the dead body and carried to the police station. 16. It is pertinent to note that from the evidence on record it is seen that police had already got the information as regards the location of the dead body of the deceased in the Suffry river. That being so, it cannot be said that the discovery was made in consequence of information received form the Appellants so as to bring it within the purview of Section 27 of the Act. 17. Now let us have a look at the provision of Section 27 of the Act which are as follows: 27. How much of information received from accused may be proved.-Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 18. The Apex Court in a case reported in AIR 2004 SC 2865 Anter Singh Appellant v. State of Rajasthan, Respondent, had the occasion to deal with the scope and ambit of Section 27 of the Act. 18. The Apex Court in a case reported in AIR 2004 SC 2865 Anter Singh Appellant v. State of Rajasthan, Respondent, had the occasion to deal with the scope and ambit of Section 27 of the Act. The Supreme Court relying on the various decisions of the same Court basically considering the case of Pulukuri Kottaya v. Emperor AIR 1947 PC 67, in paragraph 16 of the judgment summed up as many as 7 requirements for applicability of Section 27 of the Act which are as follows : 1. The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. 2. The fact must have been discovered. 3. The discovery must have been in consequence of some information received from the accused and not by accused's own act. 4. The person giving the information must be accused of any offence. 5. He must be in the custody of a police officer. 6. The discovery of a fact in consequence of information received from an accused in custody must be deposed to. 7. Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible. 19. Having applied the ratio of the above case and also taking into account the proposition of law laid down in those cited case as mentioned above by the learned Counsel for the parties, it is seen that in the instant case discovery was not made in consequence of such information received from the accused/Appellants. One of the requirements so prescribed in paragraph 16 of the judgment mentioned above has not been fulfilled as we do not find any statement whether in oral or in writing so made by the Appellant from the evidence of the witnesses. One of the requirements so prescribed in paragraph 16 of the judgment mentioned above has not been fulfilled as we do not find any statement whether in oral or in writing so made by the Appellant from the evidence of the witnesses. Even the I.O. who deposed on the basis of the case diary maintained by the earlier predecessor, did not mention about any such statement so recorded by the earlier I.O. We have also noticed very carefully the conduct exhibited by the Appellants vis-a-vis the absconded accused Bapdhan Mili who fled away immediately after the occurrence. It is on record that the other two accused i.e., the Appellants were arrested by police-when they were sleeping in their house around 10 p.m. 20. The entire facts and circumstances so noticed above, would lead to the irresistible conclusion that the prosecution has failed to prove its case beyond reasonable doubt so as to bring home the charge of involvement of the Appellants in the instant case and accordingly, they are according to our firm opinion, entitled to get benefit of doubt. 21. In view of what has been stated, discussed and observed above, we are inclined to quash and set aside the impugned conviction and sentence so imposed by the learned Judge and we order accordingly. 22. In the result appeal succeeds and stands allowed. 23. The Appellants are set at liberty forthwith, if they are not required to any other case. 24. Send down the LCR forthwith. Appeal allowed.