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2008 DIGILAW 699 (GAU)

Gopal Dey v. State of Assam

2008-09-15

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. A. Choudhury, Learned Counsel appearing for the appellant. Also heard Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 17.8.2002 passed in Sessions Case No. 17/2001 passed by the learned Sessions Judge, Morigaon convicting the appellant under Section302/201, IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000 (Rupees ten thousand), in default, further R.I. for two (2) months under Section 302, IPC and also to suffer further Rigorous Imprisonment for ten (10) years under Section 201, IPC, both the sentences shall run consecutively. 3. The prosecution case in brief is that on 30.11.1999 an FIR was lodged by one Sri Pradip Mandal (PW1) with Morigaon Police Station at Morigaon alleging that on 24.11.1999 one Sri Gopal Dey kidnapped the informant's (PW1) only sister-Sabita Mandal. On that day, i.e., 30.11.1999 at about 11.00 A.M. one constable who was on duty at Civil Hospital, informed PW1 that one dead body was lying in the compound of the Civil Hospital. On being informed, PW 1 went there and recognized the dead body and identified her as Sabita Mandal. 4. On receipt of the FIR, police registered a case being Morigaon Police Station Case No. 140/99, under Section 366/302, IPC. Police started investigation and on completion of investigation, submitted charge sheet against Sri Gopal Dey, the appellant and one other person, viz., Manas Kumar Nath, under Section 302/34, IPC. Eventually, the case was committed to the court of Sessions, Morigaon, as the case was exclusively trial by the Court of Sessions. The learned Sessions Judge on perusal of the relevant materials on record and after hearing the Learned Counsel for the parties, framed charge against accused Gopal Dey and Manas Kumar Nath, under Section302/201/34, IPC. The entire charges were read over to the accused persons to which they pleaded not guilty and claimed to be tried. 5. During trial, the prosecution examined as many as 12 witnesses including Dr. Nakul Ch. Baruah (PW11) and Sri Chinta Haran Nath (PW12) who conducted autopsy on the dead body of Sabita Mandal ('the deceased') and the Investigating Officer (I.O.) whereas defence examined none. 6. PW 1, Pradip Mandal deposed that the deceased Sabita Mandal was his younger sister. 5. During trial, the prosecution examined as many as 12 witnesses including Dr. Nakul Ch. Baruah (PW11) and Sri Chinta Haran Nath (PW12) who conducted autopsy on the dead body of Sabita Mandal ('the deceased') and the Investigating Officer (I.O.) whereas defence examined none. 6. PW 1, Pradip Mandal deposed that the deceased Sabita Mandal was his younger sister. Her marriage was scheduled to be held on 13th December, 1999 with a boy of Nagaon. But her marriage could not be performed because Gopal Dey kidnapped her from his house. He searched for her but found no trace. On 30.1.1999 on being informed by police that a dead body was lying in the hospital he went there and recognized the dead body as Sabita Mandal. 7. PW 2, Smt. Manju Prava Deka, in her deposition, stated that she knew Gopal. About 11/2 - 2 years back Gopal came to her house with a girl, namely, Sabita. When she asked to stay them in her house for the night they did not but went away on a scooter. The girl went away with Gopal with her own will. In her cross-examination PW 2 stated that since Sabita had been in love with Gopal for long, they eloped, 8. PW 3, Dilip Kumar Nath deposed that he knew the two accused Manash Kumar Nath and Gopal Dey, in his deposition he stated that Gopal and Sabita stayed a night in his house and on the next morning, they left in a car. In his cross he asserted that Sabita told him that she had got married with Gopal on her own will. 9. The learned Sessions Judge, Morigaon having closely appreciated the testimony of those witnesses, so examined, as well as having considered minutely and scrutinized the testimony of the witnesses, namely, PW1- Pradip Mandal, PW 2-Smt. Manju Prava Deka and PW 3-Dilip Kr. Nath as already mentioned above and also having gone through the medical evidence so adduced by PW11-Dr. Nakul Chandra Baruah, convicted and sentenced the appellant as indicated above while acquitted the other accused Manas Kumar Nath. 10. Extensive arguments advanced on behalf of the parties have been given apt attention and due consideration. Also meticulously assessed the testimony of the witnesses abovementioned. 11. Nakul Chandra Baruah, convicted and sentenced the appellant as indicated above while acquitted the other accused Manas Kumar Nath. 10. Extensive arguments advanced on behalf of the parties have been given apt attention and due consideration. Also meticulously assessed the testimony of the witnesses abovementioned. 11. PW1, the Doctor, found the following injuries on the person of the dead body of the deceased: (i) No external injury except one small abrasion on posterior aspect of right elbow. At dead body of female young adult aged about 18 years where rigor mortis present in all extremities, eyes, mouth closed. No forts on mouth and discharge from anus and one napkin was found on vaginal orifice which was blood stained. (ii) Injuries - (a) Breast- pendulous (b) Areolar of breast - Pinkish, healthy. (c) Vagina canal - Healthy (d) Uterus - normal in size. The Doctor, in his opinion clearly stated that the cause of death could not be ascertained. In his post mortem report he did not mention any injury so as to attract the provisions of Section 299, IPC. 12. We have also extensively surveyed the testimony of other witnesses basically of PW4-Smt. Kiran Mandal, the mother of the deceased, PW4-Smt. Kamaleswari Devi and PW6-Smt. Thunomai Devi. The mother of the deceased, PW4 evidenced that some 14/15 days before the marriage of the deceased with one Swapan Biswas, she went out with one Sikha for inviting her friends. Around 3:00 P.M. she returned and she did not take her meal because of headache. She got up sleep in the evening and thereafter she went missing. In search of her, they came to know from small children that the deceased was taken along by Gopal, the appellant on a scooter. She asked one Manab, the other accused about the whereabouts of her daughter. In cross, PW4 admitted that age of her daughter, the deceased was around 20 years. 13. Another witness, Smt. Kamaleswari Devi (PW5) deposed that on one occasion one boy along with a girl, namely, Gopal and Sabita respectively spent 3 nights in their house and the girl slept with their mother at night and the boy spent the night in another room. Gopal told them that he had brought the girl with a view to marry her. In the next morning at around 8/9:00 A.M., they left their house after taking tea. Gopal told them that he had brought the girl with a view to marry her. In the next morning at around 8/9:00 A.M., they left their house after taking tea. In cross, PW5 stated that during the course of stay in their house, the girl had been behaving joyously. 14. Similarly such facts have also been narrated by PW6 (Smt. Thumomai Devi) in her evidence. She deposed that the girl slept with her on the night. In cross, PW6 stated that the girl told her that she had been in love with Gopal and during her stay in the house, she had been behaving joyously. 15. From careful assessment of the testimony of the witnesses abovenamed including the medical evidence, we find no such convincing materials to prove that the appellant was involved in the killing of the deceased. Not a single witness had ever indicated any such circumstances that may be used to bring home the charge in question against the appellant. Even PW11, the Doctor expressly opined that the cause of death could not be ascertained. 16. In view of the above as well as upon hearing the Learned Counsel for the parties, we are of the view that the appellant is entitled to get the benefit of doubt. Accordingly, we order that giving benefit of doubt to the appellant/the impugned conviction and sentence stand quashed and set aside. 17. The appellant is set at liberty forthwith if not required in any other case. 18. Mr. Chowdhury, leaned Counsel for the appellant has submitted that the appellant is on bail in terms of the order dated 11.3.2003 Hence, the bail bond stands discharged. 19. Send down the LCR. 20. In the result, the appeal succeeds and stands allowed. Appeal allowed.