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2009 DIGILAW 934 (GAU)

Bhaba Saikia v. State of Assam

2009-12-23

BIPLAB KUMAR SHARMA, J.CHELAMESWAR

body2009
JUDGMENT Biplab Kumar Sharma, J. 1. This arisen out of the judgment of conviction and sentence dated 20.2.2003 appeal has passed by the learned Sessions Judge, Lakhimpur in Sessions Case No. 86 (NL) of 1995 under Section 302, IPC. By the impugned judgment of conviction and sentence, the appellant has been convicted under Section 302, IPC with the sentence of rigorous imprisonment for life and fine of Rs. 10,000, in default, rigorous imprisonment of 5 years. 2. The criminal case against the accused appellant and one Md. Omar Ali was set to motion with the lodging of the FIR dated 18.7.1993 with the Officer-in-charge, Simaluguri Police Station by one Shri Haren Phukan (PW-1). The incident narrated in the FIR is that at about 12 mid-night on 12.7.1993, hearing a sound inside the particular camp situated on the west of the bridge under construction, namely, Athonibari bridge, the first informant woke up and saw the accused appellant along with Omar Ali killing the Head Carpenter Rajesh Ali, hitting him with a Iron Crowbar. According to the first information, same was due to some dispute regarding monetary transactions among them. In the FIR, it was narrated that first the deceased struggled for life and thereafter died. According to the first informant, he was threatened by both the accused and compelled to help them out in burying the dead body. 3. On 17.7.1993 when the accused appellant had gone to market and the other accused Omar Ali was asleep, the first informant fled away from the place and took shelter in the house of one Shri Tulshi Phukan at Simaluguri village from where he got the FIR written by one Shri Arun Knowar on 18.7.1993 and lodged the same with the Simaluguri Police Station. 4. On receipt of the said FIR, the police registered Bihupuria PS Case No. 305 of 1993 under Section302/201/34, IPC. After investigation etc, charge sheet was submitted and the case being exclusively triable by the court of Sessions, the learned Additional Chief Judicial Magistrate, Lakhimpur, committed the same to the court of Sessions by his order dated 30.5.1995. 5. During trial, prosecution examined four witnesses. Their evidence is briefly discussed below: 6. PW-1 is Shri Haren Phukan is the first informant who had lodged the FIR. 5. During trial, prosecution examined four witnesses. Their evidence is briefly discussed below: 6. PW-1 is Shri Haren Phukan is the first informant who had lodged the FIR. According to him, he did not divulge the fact of committing the murder by the accused appellant along with said Shri Omar Ali, out of fear, rather helped them out in hiding the dead body. However, it is his stand that after about 5(five) days, he could come out from the camp and lodged the FIR being relieved of any pressure from the accused persons. 7. He in his deposition stated that the deceased was the head carpenter in the construction work in which the PW-1 was also engaged. That was in the year 1993. According to his statement, it was one Shri Mukti Sarma, who got the construction work, as per which a wooden bridge was to be constructed at Athonibari PWD road. He in his deposition stated that the contractor had engaged the accused appellant alongwith other accused, the deceased and the PW. On 12.7.1993, Rajesh Ali, i.e., the deceased brought the wages from the contractor. They used to stay in a tent near the bridge. They demanded the deceased that the money should be equally distributed. 8. As per the further statement of this PW-1, when all were asleep, he heard a sound at about 12 mid-night and woke up. He then came out of the tent and saw the deceased struggling for life in an injured state near the tent. Armed with crowbar, the accused appellant and Omar Ali were standing nearby. He in his deposition further stated that he could see the accused appellant hitting the deceased on the back of his head with the said weapon and the deceased died. Out of fear, when he wanted to escape, the accused appellant got hold of him and threatened him that he would also be killed, unless he maintained silence. On being instructed by both the accused, the PW-1 helped them out in burying the dead body in one end of the bridge. 9. According to him, he stayed in the camp up to 17.7.1993 out of fear. On that day, the accused appellant had gone to Simaluguri market with the contractor for shopping. When the contractor had made queries about Rajesh, the accused appellant stated that he might have gone somewhere. 9. According to him, he stayed in the camp up to 17.7.1993 out of fear. On that day, the accused appellant had gone to Simaluguri market with the contractor for shopping. When the contractor had made queries about Rajesh, the accused appellant stated that he might have gone somewhere. When Omar Ali was sleeping in the camp, the elder brother of the deceased came there and enquired about the deceased. According to PW-1 he had lied to the elder brother that he would be visiting his maternal uncle at Lakhi Phukan at Simaluguri. Later on, he told his maternal uncle about the occurrence and the said maternal uncle in turn asked him to lodge the FIR. Accordingly, the FIR was lodged. 10. His further statement is that the police had interrogated him and took him to the site where he pointed out the two accused persons Police caught both the accused and interrogated them. As per his statement, both the accused confessed before the police that they had killed the deceased and buried the dead body under the bridge. According to this witness, at that point of time, lot of people gathered at the site and the accused persons produced two crowbars from the place where they were kept hidden. 11. In the cross-examination, the PW-1 has stated that there was delay in lodging the FIR as the accused persons did not allow him to go out. He also stated that after three days of the incident, the contractor, i.e., Shri Mukti Sarma had visited the camp and enquired about well being of the labourers. After four days of the occurrence, the elder brother of the deceased had also visited the camp and stayed in the camp for few days. He admitted that he did not tell Mukti Sarma or the brother of the deceased that the accused had killed Rajesh. He also admitted that during the days of his stay at the camp after killing of the deceased, village people had passed through the bridge but he did not tell anything about the incident to any one of them. 12. PW-2 is Mukti Sarma, i.e., the contractor. He in his deposition stated about the engagement of the deceased, the accused persons and the PW-1. He has stated about handing over money to the deceased. 12. PW-2 is Mukti Sarma, i.e., the contractor. He in his deposition stated about the engagement of the deceased, the accused persons and the PW-1. He has stated about handing over money to the deceased. According to his statement, one day the accused appellant had come to his house and informed that the deceased had not been there in the camp. He also stated about his visit to the site and visit of the police. According to him, when the police threatened the accused persons, they showed them the spot where the deceased was buried. 13. This witness could not be cross-examined by the defence. It appears that his cross-examination was reserved on the date when he deposed in chief. Thereafter, in spite of granting several opportunities, the said witness could not be produced by the prosecution and consequently he could not be cross-examined. 14. PW-3 is one Shri Bharat Gohain @ Prithibi. He in his deposition only stated that about six years ago, police had taken him to a wooden bridge and as instructed by the police he disinterred the dead body of a male person by digging a pit. 15. PW-4 is Shri Khagen Phukan, S/o. Shri Tulsi Phukan, about whom there is mention in the FIR. This witness in his deposition stated that he knew the accused appellant and that they were engaged in construction work of a wooden bridge. This witness also stated that the deceased was known to him and that he along with the deceased and the accused persons, used to stay together at the camp. His statement is that on completion of the construction work of the bridge, he had left for home but the contractor took the deceased, the accused persons and PW-1 for construction of another wooden bridge. According to this witness, in the year 1993, one afternoon, the PW-1 came to visit him and told him that one day when the deceased and the accused persons had been sleeping in the camp, PW-1 (Haren Phukan) heard a sound, came out and found the accused persons hitting the deceased with a crowbar. As per his deposition, Haren tried to flee from the place but could not, out of fear. His further statement is that the deceased was buried by the accused. One day, Haren came to him and slept at his house. As per his deposition, Haren tried to flee from the place but could not, out of fear. His further statement is that the deceased was buried by the accused. One day, Haren came to him and slept at his house. Next morning, he accompanied Haren to the Police Station and got an FIR written by one Shri Arun Konwar and lodged the same with the Police Station. His further statement is that the police had taken him alongwith the PW-1 to the place of occurrence where the dead body was buried. Going to the place of occurrence, he met the accused persons and Omar showed the police the place where the dead body was buried. After interrogation, police brought him alongwith the PW-1 to the Police Station. Latter on, he came to know that the dead body of Rajesh was disinterred on the next date. He gave his statement before the Magistrate under Section 164, Cr. PC (Ext.4). 16. We have heard Mr. Ratul Goswami, learned advocate and the appointed amicus curiae. We have also heard Mr. Z. Kamar, learned P.P., Assam. Mr. Goswami, learned amicus curiae referring to the aforesaid evidence on record and placing reliance on two decisions of the Apex Court reported in State of U.P. vs. Punni, AIR 2008 SC 932 and Narasappa vs. State of Karnataka, (2007) 10 SCC 770 , submitted that the learned trial court committed manifest error of law in convicting the accused appellant. On the other hand, Mr. Z. Kamar, learned P.P., Assam, submitted that although there was failure on the part of the prosecution to examine the IO and the Doctor who had conducted the post mortem examination of the dead body and also there was failure to produce the PW-2 for cross-examination, but going by the evidence of PW-1 and 4, it is a clear case of an offence under Section 302, IPC committed by the accused appellant alongwith other co-accused and, thus, the impugned judgment is not liable to be interfered with. 17. We have given our anxious consideration to the submissions advanced by the learned Counsel for the parties. We have also carefully examined the entire evidence on record. As per the FIR, the PW-1 had heard a sound from inside the camp but in his deposition stated that he saw the incident outside the camp. 17. We have given our anxious consideration to the submissions advanced by the learned Counsel for the parties. We have also carefully examined the entire evidence on record. As per the FIR, the PW-1 had heard a sound from inside the camp but in his deposition stated that he saw the incident outside the camp. As per his statement, it was only after he had come out from the camp, he could see the incident. Thus, there is inherent contradiction in his stand in the FIR vis-a-vis the statement made during trial. Either he had seen the incident inside the camp or outside the camp but as against the narration in the FIR that he heard the sound from inside the camp, his statement during the trial is that after hearing the sound, he came out from the camp and saw the incident outside the camp. There is no explanation to this contradiction. 18. It is in evidence that after the incident, the PW-1 stayed along with the accused persons in the camp and in between the contractor and the elder brother of the deceased had visited the camp. Even if he was under some kind of fear, he could have very well told these two persons about the incident. Not only that, as per his own statement, village people used to pass by the camp but he did hot tell any one of them about the incident. 19. In the FIR, the information furnished was that he had left the camp when the accused had gone to the market and the other accused was asleep. As per the FIR, he took shelter in Tulshi Phukan's house. There is no mention of PW-4 in his deposition rather his statement is that he had gone to his maternal uncle Lakhi Phukan's house, Silamuguri and narrated the incident to him, who in turn advised him to lodge the FIR. On the other hand, as per the statement of PW-4, the PW-1 had visited him and told him about the incident. When the prime witness, i.e., PW-1 did not name the PW-4 in his FIR and also in the statement made during trial, it will not be prudent to place reliance on the evidence of PW-4, whose stand relating to visit of PW-1 to his place is not corroborated by PW-1. 20. When the prime witness, i.e., PW-1 did not name the PW-4 in his FIR and also in the statement made during trial, it will not be prudent to place reliance on the evidence of PW-4, whose stand relating to visit of PW-1 to his place is not corroborated by PW-1. 20. The most vital witness, i.e., the IO and so also the Doctor, who had conducted the post mortem examination, have not been examined by the prosecution. The statement made by PW-1 and PW-4 relating to the visit of the place of occurrence, recovery of the dead body and the crowbar etc., could have been testified and corroborated by the IO but unfortunately, the prosecution did not even examine the IO. The post mortem report is also not proved by the Doctor who had conducted the post mortem examination, as the said doctor was not examined by the prosecution. Coupled with this, the PW-2 was also not produced for cross-examination. Thus, his testimony is of no credence. 21. The learned Sessions Judge has convicted the accused appellant primarily on the basis of the evidence of PW-1 but when the aforesaid contradictions in the depositions of PW-1 and PW-4 are taken note of, the evidence of PW-1 becomes wholly unreliable, so as to convict the accused appellant. According to the learned Sessions Judge, non-examination of the IO cannot be a cause of discrediting the merit of the prosecution case. 22. It is true that non-examination of the IO itself may not be fatal to the prosecution case but viewed from the angle of contradictions in the evidence adduced by PW-1 and PW-4, the IO was a material witness who could have diluted the contradictions. The apex court in Puni (supra) has held that, non-examination of the IO for unfolding the prosecution story was fatal. In that case, an adverse inference was drawn by the High Court against the prosecution for non-examination of the IO and the Apex Court while upholding the same, observed that the non-examination of the IO being fatal, would find support from the decision of the Apex Court in Habeeb Mohammad vs. State of Hyderabad, AIR 1954 SC 51 . In that case, an adverse inference was drawn by the High Court against the prosecution for non-examination of the IO and the Apex Court while upholding the same, observed that the non-examination of the IO being fatal, would find support from the decision of the Apex Court in Habeeb Mohammad vs. State of Hyderabad, AIR 1954 SC 51 . In paragraph 9 of the judgment, the Apex Court upon a reference to its another decision in Ram Prasad vs. State of U.P. (1974) 3 SCC 388 , observed that in case of non-examination of vital prosecution witness for reasons not tenable or not proper, the court would be justified in drawing an adverse inference against the prosecution. 23. In the instant case, no reason is forthcoming from the prosecution side as to why the IO could not be examined, whose statement would have been vital, more particularly, when there is contradictions in the statements of PW-1 and PW-4. 24. In view of the above, we are of the considered opinion that it will not be safe to convict the accused appellant solely on the basis of the evidence of PW-1, whose own conduct is doubtful. Thus, according to our view, the accused appellant is entitled to benefit of doubt. In Narasappa (supra), the Apex Court observed that a strong suspicion cannot take the place of proof. In the said case, the accused appellant's conviction was set aside on benefit of doubt, after observing that carrying the dead body by the accused persons, can at the best raise strong suspicion, but not proof beyond reasonable doubt. 25. For all the aforesaid reasons, we are inclined to set aside and quash the impugned judgment dated 20.2.2003 passed by the learned Sessions Judge, Lakhimpur in Sessions Case No. 86 (NL) of 1995. Consequently, the sentence imposed by the said judgment under Section 302, IPC also stands interfered with. 26. The appeal is allowed. The accused appellant shall be set at liberty forthwith, if not wanted in connection with any other case. 27. Sent down the LCR to the trial court along with the copy of this judgment. 28. While appreciating the services rendered by Mr. Ratul Goswami, learned amicus curiae, we hereby order that he will be entitled to a fee of Rs. 5,000. Appeal allowed.