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2009 DIGILAW 17 (GAU)

Rupsai Gore v. State of Assam

2009-01-09

A.C.UPADHYAY, AFTAB H.SAIKIA

body2009
JUDGMENT A.C. Upadhyay, J. 1. This jail appeal by the convict is directed against the order of conviction under Section 302, IPC and sentence to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, in default, further rigorous imprisonment for one month, imposed on him by the learned District and Sessions Judge, Darrang at Mangaldoi, in Sessions Case No. 8 (D)/1998. 2. The prosecution case as unfolded in the trial, reveals that at around 6 p.m. on 24.8.1997, the accused/Appellant after consuming intoxicating liquor, armed with a 'khukri', (a sharp cutting weapon about a cubit long), came to the house of the deceased Phalani, attacked her and caused multiple injuries on her person, as a result of which she died on the spot. At the relevant time, next door neighbour, PW-3, Smti Manomati Gaur, upon hearing hue and cry raised by the deceased in her Court yard came running to the place of occurrence and saw the accused/Appellant standing in the Court yard with his khukri. Immediately on seeing PW 3, the accused/Appellant fled away from the place of occurrence. PW 1, Gauranga Biswas, husband of the deceased, who was also nearby the occurrence to unfasten his cows from nearby orchard came running to the place of incidence, upon hearing uproar raised by PW 3. PW 2 Ajoy Gaur, who was loading fire wood also heard the noise and came running to the place of occurrence and saw the accused fleeing. The fleeing accused/Appellant was chased, pursued and caught by local villagers with the help of Army personnel immediately after the occurrence and was kept detained alongwith the 'khukri'. 3. PW-1, Gauranga Biswas, (husband of the deceased) lodged an Ejahar in Dimakuchi Police outpost under Paneri Police Station. The investigating police officer came to the place of occurrence, took the accused/Appellant into custody, seized a khukri with blood sticking on the sharp portion, from his possession vide Exbt. 1, seizure list and after preparing inquest report (Exbt. 2), over the dead body sent the dead body to Mangaldoi Civil Hospital for post mortem examination. The accused/Appellant who was already apprehended by the public was taken into custody by the police. On completion of the investigation, the investigating police officer having found enough incriminating evidence against the accused/Appellant, submitted charge-sheet under Section 302, IPC. 4. 2), over the dead body sent the dead body to Mangaldoi Civil Hospital for post mortem examination. The accused/Appellant who was already apprehended by the public was taken into custody by the police. On completion of the investigation, the investigating police officer having found enough incriminating evidence against the accused/Appellant, submitted charge-sheet under Section 302, IPC. 4. The offence under Section 302, IPC alleged against the accused/Appellant being exclusively triable by the Court of Sessions, learned CJM, Mangaldoi committed the case to the Sessions Judge, Mangaldoi for trial. Upon consideration of the papers, documents and also other relevant materials on record relied on by the prosecution, the learned Sessions Judge, Mangaldoi, finding sufficient ground to proceed against accused/Appellant under Section 302, IPC framed formal charge against him. On reading over and explaining the charge the accused/Appellant pleaded not guilty to the charge and claimed to be tried. 5. During the course of trial, the prosecution side in order to prove the charge under Section 302, IPC against the accused/Appellant, examined in all 10 (ten) witnesses and exhibited 4 documents. Learned Sessions Judge also recorded the testimony of Sri Santosh Gaur, Puma Gaur and Motilal Gaur as Court witnesses in this case. After closing the prosecution evidence, statement of the accused/Appellant was recorded as per provision of Section 313, Code of Criminal Procedure. 6. Though the accused/Appellant took the plea of innocence, however, admitted during his examination under Section 313, Code of Criminal Procedure, to have been apprehended after the occurrence by the public with the help of Army personnel. The Sessions Judge on closing of the trial after hearing the learned Counsel for the accused/Appellant as well as the learned Public Prosecutor, delivered judgment convicting and sentencing the accused/Appellant as noted above. 7. We have heard Smti. R.D. Majumdar, learned Amicus Curiae appearing on behalf of the accused/Appellant and Mr. K.C. Mahanta, learned Addl. PP, Assam. 8. Smti. Majumdar, learned Amicus Curiae has submitted that the conviction in the case was recorded by the Sessions Judge solely on the basis of circumstantial evidence as no eye witness was present at the time of occurrence and strenuously submitted for setting aside the order of conviction and sentence imposed on the accused. 9. PP, Assam. 8. Smti. Majumdar, learned Amicus Curiae has submitted that the conviction in the case was recorded by the Sessions Judge solely on the basis of circumstantial evidence as no eye witness was present at the time of occurrence and strenuously submitted for setting aside the order of conviction and sentence imposed on the accused. 9. The learned Public Prosecutor, supporting the conviction recorded by the learned Sessions Judge, has contended that the learned trial court rightly recorded the conviction of the Appellant under Section 302, IPC on the basis of the eye witnesses account and closely connected circumstantial evidence proved by the witnesses, who happened to reach the place of occurrence upon hearing outcry raised by the deceased just after the occurrence and witnesses, who saw the accused/Appellant being caught red handed with his khukri while fleeing away from the place of occurrence. The learned Additional Public Prosecutor, strenuously submitted that the judgment of conviction recorded by the learned trial Court needs no interference by this Court. 10. It is now required to be seen from the evidence on record whether the present Appellant was the author of the injuries found on the body of the deceased. 11. Dr. Nikhil Ranjan Sarmah, PW-10 who conducted the post mortem examination on the dead body of the deceased found the following injuries: (A)(1) Cut injuries over the nape of neck at three sites: (i) 7 cm length causing fracture of the occipital bone exposing the brain and diving the pinna of the left ear. (ii) Cut injury over nape of neck right side just below the right ear with fracture of the mandible-5 cm X 3 cm. (iii) Cut injury over the nape of neck upto the vertebrae-5 cm in length. (B) Cut injury over the left thumb dividing the thumb longitudinally causing fracture of phallangeal bones. (C) Cut injury over dorsal aspect of left foot near ankle-4 cm × 2.5. cm. (D) Cut injuries-four in numbers-superficial over the front of left leg (2 cm × 1 cm). Laceration of occipital lobes There was fracture of occipital bone, fracture of mandible, fracture of phallangeal bones of left thumb. Injuries were ante mortem in nature. 12. In the opinion of the Doctor the death was caused due to shock and hemorrhage as a result of the injuries sustained by the deceased. Laceration of occipital lobes There was fracture of occipital bone, fracture of mandible, fracture of phallangeal bones of left thumb. Injuries were ante mortem in nature. 12. In the opinion of the Doctor the death was caused due to shock and hemorrhage as a result of the injuries sustained by the deceased. The types of injuries sustained by the deceased clearly reveal that injuries were inflicted on the person of the deceased with definite intention to cause her death. 13. PW-3, Manomoti Gaur, is the next door neighbour of the deceased, residing little away from the residence of the deceased. On the date of occurrence when PW-3 was on her way to fetch waver she all of a sudden heard the deceased shouting for help. When she came running towards the deceased, she found her lying in her courtyard^ At that time accused/Appellant Rupsai, who was also in the courtyard of the deceased, on seeing PW-3, fled away with khukri in his hand. When PW-3 came near the deceased she was severe cut wounds on the neck, hand, fingers and legs of the deceased and found her lying dead with injuries on her person. PW-3 picked up the baby, belonging to the deceased from the ground and started raising hue and cry. Both PW-1, Gauranga and PW-2, Ajoy, came to the place of occurrence, PW-3, Manomati informed both PW-1 PW-2 and other co-villagers about the complicity of accused/Appellant immediately on their arrival at the place of occurrence. 14. PW-1, Gauranga, husband of the deceased, corroborating the testimony of PW-3 stated that he had been to his orchard to bring back his domestic animals. On hearing the hue and cry in his courtyard he came running to his residence. On reaching his courtyard, he found his wife lying on the ground bleeding with injuries. He found two cut injuries on neck, one upon finger and other three or four cut injuries were also visible on her legs and other parts of her body. He was reported by PW-3 that accused/Appellant fled away from the place of occurrence with khukri after his wife was hacked to death. PW-2, Ajoy Gaur knew PW-1, Gauranga, and accused/Appellant Rupsai stated that on hearing uproar at the place of occurrence, came running to the courtyard of the deceased and on his way he saw the accused/Appellant fleeing away and local people were chasing him. PW-2, Ajoy Gaur knew PW-1, Gauranga, and accused/Appellant Rupsai stated that on hearing uproar at the place of occurrence, came running to the courtyard of the deceased and on his way he saw the accused/Appellant fleeing away and local people were chasing him. On arriving at the place of occurrence, he saw the deceased lying on the ground with several cut injuries on her person and was informed by his wife PW 3, that the deceased was hacked to death by the accused/Appellant. 15. PW-4, Babul Singh, a neighbour of both the accused/Appellant as well as the informant at the time of occurrence was at his residence taking bath. On getting the information of the incident he came rushing and saw that the deceased lying dead with cut injuries on her person. He could see cut wounds on the body of the deceased in six to seven places and her whole body was bleeding. In the meantime, villagers caught accused/Appellant Rupsai with the help of Army, along with his khukri. Police came to the place of occurrence, arrested the accused and seized the blood stained khukri from the possession of the accused/Appellant Rupsai in his presence. PW-4 proved his signature in the seizure list, Exbt. 1, by which khukri with blood sticking on the sharp edge was seized from the possession of the accused/Appellant by police. 16. The accused Appellant in his statement under Section 313, Code of Criminal Procedure categorically admitted to have been caught by the local public with the help of army immediately after the occurrence. A question arises whether such statement of the accused given under Section 313, Code of Criminal Procedure can be taken into consideration in an enquiry or trial against him. While interpreting the scheme of law under Section 313(4) Code of Criminal Procedure, the Hon'ble Supreme Court has made it clear that answer given by the accused under Section 313, Code of Criminal Procedure can be used against him as a piece of evidence given by the prosecution witnesses. In the State of Maharashtra v. Sukhdev Singh and Anr. reported in (1992) 3 SCC 700 , the Hon'ble Supreme Court made the position of law clear with the following observation(s): 51. That brings us to the question whether such a statement recorded under Section 313 of the Code can constitute the sole basis for conviction. In the State of Maharashtra v. Sukhdev Singh and Anr. reported in (1992) 3 SCC 700 , the Hon'ble Supreme Court made the position of law clear with the following observation(s): 51. That brings us to the question whether such a statement recorded under Section 313 of the Code can constitute the sole basis for conviction. Since no oath is administered to the accused, the statements made by the accused will not be evidence strict sensu. That is why Sub-section (3) says that the accused shall not render him self liable to punishment if he give false answer. Then comes Sub-section (4) which reads 313. (4) The answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he was committed. Thus the answers given by the accused in response to his examination under Section 313 can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above Sub-section. Therefore, though not strictly evidence, Sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. See State of Maharashtra v. R.B. Chowdhuri (1967) 3 SCR 708 : AIR 1968 SC 110 : 1968 Cri LJ 95. This Court in the case of Hate Singh Bhagat Singh v. State of M.B. 1953 Cri.L.J. 1933 : AIR 1953 SC 468 , held that an answer given by an accused under Section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab : (1963) 3 SCR 678 : (1964) Cri.L.J. 730, this Court held that if the accused confesses to the commission of the offence with which he is charged the Court may, relying upon that confession, proceed to convict him. In Narain Singh v. State of Punjab : (1963) 3 SCR 678 : (1964) Cri.L.J. 730, this Court held that if the accused confesses to the commission of the offence with which he is charged the Court may, relying upon that confession, proceed to convict him. To state the exact language in which the three Judge Bench answered the question it would be advantageous to reproduce the relevant observations at page 684-685: under Section 342 of the Code of Criminal Procedure by the first Sub-section, in so far as it is material, the Court may at any stage of the enquiry or trial after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation-if any, of the incident which forms the subject-matter of the charge and his defence. By Sub-section (3), the answers given by the accused may 'be taken into consideration' at the enquiry or the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him the Court may, relying upon that confession, proceed to convict him, but if he does not confess and explaining circumstances appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirely. Sub-section (1) of Section 313 correspondents to Sub-section (1) of Section342 of the old Code except that it now stands bifurcated in two parts with the proviso added thereto clarifying that in summons case where the presence of the accused is dispensed with his examination under Clause (b) may also be dispensed with. Sub-section (2) of Section 313 reproduces the old Sub-section (4) and the present Sub-section (3) corresponds to the old Sub-section (2) except for the change necessitated on account of the abolition of the jury system. The present Sub-section (4) with which we are concerned is a verbatim reproduction of the old Sub-section (3). Sub-section (2) of Section 313 reproduces the old Sub-section (4) and the present Sub-section (3) corresponds to the old Sub-section (2) except for the change necessitated on account of the abolition of the jury system. The present Sub-section (4) with which we are concerned is a verbatim reproduction of the old Sub-section (3). Therefore the aforesaid observations apply with equal force. 17. Witnesses, who reached near the place of occurrence immediately on hearing outcry of victim, saw the accused/Appellant just near the dead body of the deceased with a blood stained khukri in his hand immediately following the occurrence. More noticeable crime conduct of the Appellant is running away with the weapon of assault smeared with blood from the scene of crime by leaving a severely injured neighbour that is the deceased, and admitting to have been apprehended by the local people while running away, without giving any explanation for such behaviour. 18. In the instant case apparently there is no eye-witness to the actual assault inflicted by the Appellant/accused on the deceased, however, the evidence Laid by PW-3 corroborated by PW-1 and PW-4 and other witnesses reveal the following circumstances against the accused- (a) PW-3, Manomati, who was on her way to fetch water, heard hue and cry raised by the victim in her courtyard. (b) PW 3 came running to the courtyard of the deceased and found the accused/Appellant standing with a blood stained khukri in his hand, near the body of a severely injured deceased. The deceased had cut injuries at 6/7 places on her body. (c) The accused/Appellant fled away from the place of occurrence immediately on seeing PW-3 with the blood smeared khukri (d) PW 2, who came running to the place of occurrence on hearing alarm raised by PW-3 saw the accused fleeing away from the place of occurrence. (e) The accused Appellant ran away from the place of occurrence with the weapon of assault. (f) The accused/Appellant was chased and caught along with the blood stained khukri by the local villagers after a hot chase, immediately following the occurrence. (g) The accused/Appellant was handed over to the police by the local villagers. (h) The accused Appellant admitted in his statement under Section 313, Code of Criminal Procedure to have been chased and caught by the local villagers with the weapon of assault after the occurrence. 19. (g) The accused/Appellant was handed over to the police by the local villagers. (h) The accused Appellant admitted in his statement under Section 313, Code of Criminal Procedure to have been chased and caught by the local villagers with the weapon of assault after the occurrence. 19. Now it is required to be examined whether the circumstances referred to above from which an inference of guilt is sought to be drawn has been cogently and firmly established by the prosecution. It may not be out of place to mention that the principles governing proof of a case based on circumstantial evidence has been settled in many important judicial pronouncements of Hon'ble Supreme Court. We may make a reference to a decision of Hon'ble Supreme Court reported in C. Changa Reddy and Ors. v. State of A.P. (1996) 10 SCC 193 , wherein it has been observed thus: In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with 20. Similarly, reference may be also made to a most referred decision of the Hon'ble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 . Therein, while dealing with circumstantial evidence, Hon'ble Supreme Court held that onus was on the prosecution to prove that the chain is complete, 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. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) The facts to 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. 21. The case before us does not rest squarely on circumstantial evidence only, nevertheless, the circumstances from which the conclusion of guilt is drawn have been fully proved and such circumstances are conclusive in nature. All the circumstances read together with eye-witnesses account are complete and there is no gap left in the chain of evidence. The proved situation is trustworthy and consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. 22. Witnesses PW-3, PW-2, PW-1, PW-4 had no breed of enmity against the accused/Appellant nor had any axe to grind against him to falsely implicate. Similarly, prosecution evidence and defence stand on record do not signify or divulge that they had any type of bitterness with the accused/Appellant. Therefore, there is no reason to distrust their authentication in evidence. 23. After evaluating the entire evidence on record it can be concluded with firmness that the chain of circumstances together with the facts revealed by the eye-witnesses put together, conclusively affirms complicity of the accused/Appellant in the commission of the offence alleged against him, in the facts and circumstances established by the prosecution are consistent only with the hypothesis of the guilt of the Appellant and nothing else. 24. Hence we do not find any reason to interfere with the impugned judgment. In the result the appeal stands dismissed. 24. Hence we do not find any reason to interfere with the impugned judgment. In the result the appeal stands dismissed. Conviction of the Appellant under Section 302, IPC as recorded by the trial Court is hereby affirmed. 25. Before parting with the case, we would like to put on record our appreciation to Smti. R.D. Majumdar, learned Amicus Curiae for her valuable assistance in arriving at the above decision. We accordingly order that she is entitled to her professional fees, which is quantified as Rs. 5,000/-. 26. Send down the LCR forthwith.