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2010 DIGILAW 431 (GAU)

Arjun Ch. Roy v. State of Assam

2010-06-15

AMITAVA ROY, C.R.SARMA

body2010
JUDGMENT Amitava Roy, J. 1. The judgment and order dated 24.12.2002 passed by the learned Sessions Judge, Lakhimpur at North Lakhimpur in Sessions Case No. 104 (NL) 2000 convicting the accused-Appellant Under Section 302 of the Indian Penal Code (hereinafter for short referred to as the I.P.C.) and sentencing him to suffer rigorous imprisonment for life and fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment for further five years constitute the subject matter of the instant appeal. 2. We have heard Mr. Ratul Goswami, learned Amicus Curiae for the Appellant and Mr. D. Das, learned Public Prosecutor, Assam. 3. The prosecution case unveils with the F.I.R. dated 02.07.1998 lodged by one Shri Nipan Borah with the Officer-in-Charge, Dhakuakhana Police Station to the effect that his nephew Sri Jan Mani Bora while was sleeping in his shop located in front of the Shankardev High School in the night of 01.07.1998 was lured away by somebody and after being killed was thrown by the edge of a local Ghat. The F.I.R. revealed that the inhabitants of the place detected the dead body in the next morning, i.e. on 02.07.1998 and apprised the informant thereof On the basis of the said F.I.R., Dhakuakhana P.S. Case No. 139/1998 Under Section 302 I.P.C. was registered and investigation followed, where after, charge-sheet was laid against the accused-Appellant under the said provision of law. Eventually, charge was also framed against him Under Section 302 I.P.C. by the learned trial Court, to which he pleaded "not guilty" and claimed to be tried. 4. At the trial, the prosecution examined ten witnesses. The accused-Appellant did not adduce any evidence in his defence. His statement was however recorded under Section 313 Code of Criminal Procedure and finally by the judgment and order impugned, the accused-Appellant was convicted and sentenced as above. 5. This Court while hearing the instant appeal, having noticed the omission on the part of the prosecution, inter alia to introduce in evidence, the postmortem report, the inquest report, by its order dated 01.11.2008 required the learned trial Court to examine the doctor who had performed the postmortem examination as well as the investigating officer of the case. In deference to the above, the learned trial Court has examined Sri Hiran Kamal Knowar and Sri Lohit Sarma, the medical witness and the investigating officer respectively who in course of their testimony have introduced necessary documents. In deference to the above, the learned trial Court has examined Sri Hiran Kamal Knowar and Sri Lohit Sarma, the medical witness and the investigating officer respectively who in course of their testimony have introduced necessary documents. In all, therefore, the prosecution examined twelve witnesses. 6. Mr. Goswami, has urged that there being no evidence worth the name in support of the charge, the learned trial Court erred in law and on facts in convicting the accused-Appellant for the offence of murder. According to him, neither there is any eyewitness to the incident involving the accused-Appellant nor there is any other material on record to establish even a remote nexus between him and the offence alleged. The learned Amicus Curiae has urged that though the prosecution has endeavoured to incriminate the accused-Appellant on the basis of circumstantial evidence, on an application of the law to that effect, conviction on the basis thereof of the accused-Appellant is impermissible. Rejecting the plea of the invocation of the dictum of 'last seen together' to the facts of the case, Mr. Goswami has insisted that the evidence of the prosecution witnesses to that effect is wholly inane and thus unworthy of any credence. Referring to the evidence of P.W. 7, the learned Amicus Curiae has submitted that though this witness had made an attempt to prove extra-judicial confession on the part of the accused-Appellant owning his guilt, in absence of any supporting evidence, the same ought not to be acted upon to base his conviction. The endeavour on the part of the prosecution to establish a link between the accused-Appellant and the offence on the basis of seizure amongst Ors. of a music system belonging to the accused-Appellant has also been dismissed by Mr. Goswami to be wholly indecisive and insignificant. According to him, the seizure effected vide Ext. 2 and 3 is of no consequence at all, vis-a-vis the charge and that in absence of any unimpeachable evidence to prove that he had been the assailant, the impugned judgment and order ought to be interfered with in the interest of justice. 7. Mr. Das, in reply has argued that the evidence of P.W. 2, 3, 4, 5 and 6 read together establish the required incriminating circumstances against the accused-Appellant sufficient to identify him to be the perpetrator of the offence. 7. Mr. Das, in reply has argued that the evidence of P.W. 2, 3, 4, 5 and 6 read together establish the required incriminating circumstances against the accused-Appellant sufficient to identify him to be the perpetrator of the offence. According to the learned Public Prosecutor, the evidence of P.W. 7 regarding the extra-judicial confession made by the accused-Appellant is decisive of his involvement in the offence of murder. This coupled with the seizure of the belongings of the accused-Appellant from the possession of the accused-Appellant in his opinion proves the charge against him beyond all reasonable doubt. Mr. Das has urged that as it is evident from the injuries detected on the dead body that the deceased was killed, having regard to the chain of circumstances, the conviction of the accused-Appellant cannot be faulted with. 8. Before evaluating the rival contentions it would be appropriate to outline a sketch of the evidence on record. 9. The F.I.R. to reiterate, does not per se name the assailant responsible for the death of the deceased. P.W. 1, the informant at the trial stated that at the time of the occurrence, the deceased used to sleep in the night in his stationery shop situated in front of the Shankerdev High School. He is not an eyewitness to the incident and on receiving the news of the death of his brother (the deceased) he went to the police station and lodged the F.I.R. He, however stated that at the relevant time the accused-Appellant was serving as a ploughman in the house of one Upai Das and that he had gone missing on the very same night and further stated that out of suspicion the villagemen went in search of him and apprehended him (accused-Appellant) with the help of police. 10. The evidence of P.W. 2 Shri Bhaben Bora, P.W. 3 Tikendra Deka. P.W. 4 Shri Ram Chandra Das and P.W. 8 Shri Pabitra Das are in the same lines. According to them, in the night of the occurrence, during the summer season, they after having their dinner has assembled in front of the shop of one Guhain. 10. The evidence of P.W. 2 Shri Bhaben Bora, P.W. 3 Tikendra Deka. P.W. 4 Shri Ram Chandra Das and P.W. 8 Shri Pabitra Das are in the same lines. According to them, in the night of the occurrence, during the summer season, they after having their dinner has assembled in front of the shop of one Guhain. While the were conversing, the deceased had come near to them and when asked told that he too had come out of his house due to heat and that one ploughman serving in the house of Upai Das who had accompanying him had meanwhile entered the near by house of Padma alias Deuri master. The witnesses stated that it was then about 8/9 P.M. According to them, the deceased left thereafter and it was in the next morning that they came to learn that he was lying dead. P.W. 2 and P.W. 8 mentioned about the situs of the dead body to be on a nearby road. P.W. 3 did not mention about its location. All these witnesses, admitted of not having seen the actual incident. 11. P.W. 5 Shri Ghana Kanta Sutradhar stated that in the night of the occurrence, the accused-Appellant had visited the house of Padma Saikia, as well as. He deposed to have offered a piece of betel nut to him. He however clarified that the deceased had not entered his house. He affirmed the time of the visit of the accused-Appellant to be 9 P.M. in the night. According to this witness he came to know about the death of the deceased next morning and having come to the place of occurrence found the dead body lying under bridge. This witness however mentioned about some injury on the body of the deceased. In cross-examination this witness conceded of not knowing about the occurrence. 12. P.W. 6 Shri Jatin Das testified that the accused-Appellant was his ploughman at the relevant point of time and stated that he (accused-Appellant) used to sleep in his fair price shop. According to this witness he did not find the accused-Appellant in his bed in the shop in the morning following the night in which the incident had occurred. 12. P.W. 6 Shri Jatin Das testified that the accused-Appellant was his ploughman at the relevant point of time and stated that he (accused-Appellant) used to sleep in his fair price shop. According to this witness he did not find the accused-Appellant in his bed in the shop in the morning following the night in which the incident had occurred. This witness stated that the accused-Appellant had a stationery-cum-grocery shop and as the whereabouts of the accused-Appellant were untraceable, immediately after the incident, the public of the locality suspected his involvement therein and conducted search for him. This witness stated that eventually the accused-Appellant was apprehended with a music system of the deceased in his possession. In cross-examination, however he admitted of not having seen the recovery of the music system from the possession of the accused-Appellant and stated that he had heard about the same. 13. P.W. 7 Shri Karma Bharali, at the relevant point of time was the gaonbura of the concerned Lat. Having come to learn of the occurrence he went to the spot and found the dead body lying there. He also referred to the suspicion of the public about the involvement of the accused-Appellant as he at the relevant time was missing from his house. This witness proved Ext. 2, the seizure list with his signature Ext. 2(2) as well as Ext. 3 by which certain personal belongings were seized from the possession of the accused-Appellant. This witness also identified the seized articles in Court and mentioned that the accused-Appellant had confessed about his involvement in the incident before the public as the deceased had borrowed money from him. 14. P.W. 9 Shri Rupantor Khanikar is also a reported witness who however affirmed that the deceased was the ploughman of one Jatin @ Upai Das. According to this witness, as the members of the public started a search for the accused-Appellant he was identified soon thereafter and when he tried to flee with the music system of the deceased in his possession, he was apprehended. 15. The evidence of P.W. 10 Shri Narayan Ch. Roy has no bearing in the instant case and therefore needs no elaboration at all. 16. P.W. 12 is Dr. Hiran Kamal Knowar, who had performed the post-mortem examination stated to have found the following injuries on the dead body: (External appearance): Semi decomposed body of average built. 15. The evidence of P.W. 10 Shri Narayan Ch. Roy has no bearing in the instant case and therefore needs no elaboration at all. 16. P.W. 12 is Dr. Hiran Kamal Knowar, who had performed the post-mortem examination stated to have found the following injuries on the dead body: (External appearance): Semi decomposed body of average built. Rigor mortis present in the limbs. 1. There was a cut injury on the right side of the root of the neck (size 3" x 1 1/2" x 2" in length, breadth and depth) obliquely placed above the downward from the anterior to the posterior aspect. The skin margins were retracted and the floor of the injury was full of clotted blood. The injury severs almost all the major vessels, nerves of the right side of the neck alongwith the muscles. Soft tissue and skin. 2. An abrasion over the left ear lobule. This witness proved the post-mortem report, Ext. 6 with his signature thereon Ext. 6(1). He opined that the death was due to shock and haemorrhage as a result of the injuries sustained. 17. P.W. 11 Shri Lohit Sarma is the investigating officer who while mentioning the steps taken by him in course of the investigation proved inter alia, the seizure lists, Ext. 2 and 3; the inquest report, Ext. 5 and the charge Sheet, Ext. 4. 18. The evidence of P.W. 2, 3, 4 and 8 establish that in the night of the occurrence, the accused-Appellant had accompanied the deceased when he visited the house of Padma Saikia. This is established not only from the testimony of the aforementioned witnesses but also from the statement made by him (accused-Appellant) Under Section 313 of the Code of Criminal Procedure. That the deceased thereafter accompanied him (accused-Appellant) and both of them were together till the actual occurrence is however not proved by any clinching evidence on record. The evidence of these witnesses does not indicate that after the deceased and the accused-Appellant had parted ways before the deceased had talked to them at about 8/9 p.m. that night, they had joined again and were together till the incident had occurred. Neither the post-mortem report, nor the evidence on record indicates the point of time when the murderous assaults were made on Janmoni Bora leading to his death. Neither the post-mortem report, nor the evidence on record indicates the point of time when the murderous assaults were made on Janmoni Bora leading to his death. It is therefore, inadvisable for this Court to infer the companionship of the accused-Appellant and the deceased till the point of assaults so as to apply the principle of "last seen together" against the former as recognized in criminal law. This plea of the prosecution, therefore fails. 19. The statement of P.W. 7 Shri Korma Bharali about the extra-judicial confession of the accused-Appellant before the public in general, noticeably is not supported by any other witness of the prosecution. Had it been claimed by the witness that this disclosure was made by the accused-Appellant confidentially to him it would have been appropriate to accord weightage thereto. As this witness has been categorical in stating that such a confession had been made before the members of the public, the omission on the part of all other witnesses to corroborate this evidence renders its way unsafe for this Court to base the conviction of the accused-Appellant thereon. 20. The evidence of the prosecution witnesses demonstrate a strong suspicion against the accused-Appellant. It appears to be the impelling factor leading to the incrimination of the accused-Appellant in the offence. Not only persuasive evidence with regard to the identification of the music system as a personal belonging of the deceased is wanting, the seizure thereof by the members of the public while it was in the possession of the accused-Appellant at a point of time proximate to the detection of the death of the deceased, does not in our opinion per se clinch the issue in favour of the prosecution. The conduct of the accused-Appellant in trying to flee from the public in absence of any other corroborative evidence is not enough to unmistakably identify him (accused-Appellant) to be the offender. Though, the post-mortem report indicates that death was homicidal in nature resulting from the injuries sustained by the deceased, in absence of any cogent, convincing and clinching evidence to prove that the accused-Appellant had been the murderer, in the facts and circumstances of the case, according to us, he is entitled to the benefit of doubt. 21. On a totality of the considerations as recorded hereinabove, we are of the unhesitant opinion that the conviction of the accused-Appellant cannot be sustained. It is thus interfered with. 21. On a totality of the considerations as recorded hereinabove, we are of the unhesitant opinion that the conviction of the accused-Appellant cannot be sustained. It is thus interfered with. The impugned judgment and order passed by the learned Sessions Judge in Sessions Case No. 104 (NL) 2000 is hereby set aside. The accused-Appellant is directed be set at liberty forthwith. 22. Before we part, we record our appreciation for the assistance rendered by Mr. Goswami as learned Amicus Curiae and as a token thereof we direct payment of his professional fees which we quantify at Rs. 3,500/-. Payment should be made forthwith. Appeal allowed.