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2010 DIGILAW 448 (GAU)

Mohan Duwara v. State of Assam

2010-06-24

AMITAVA ROY, C.R.SARMA

body2010
JUDGMENT Amitava Roy, J. 1. Both these appeals arise out of the common judgment and order dated 6.5.09 passed by the learned Addl. Sessions Judge, FTC, Biswanath Chariali in Sessions Case No. 111 of 2006 convicting the accused-Appellants under Sections 302/34 of the Indian Penal Code (for short, 'IPC') and sentencing them to rigorous imprisonment for life and fine of Rs. 1,000/- each, in default, to suffer imprisonment for a further period of sixty days. The Criminal Appeal No. 58 (J) of 2009 has been preferred by the accused-Appellant Mohan Duwara who is in custody. 2. We have heard Mr. K. Sharma, learned Advocate for the Appellant Mushai Borah assisted by Mr. D. Das, Advocate and Ms. R. Das Majumder, learned Amicus Curiae for the Appellant in Criminal Appeal No. 58 (J) of 2009 Mohan Duwara, Mr. Z. Kamar, learned Public Prosecutor represented the State. 3. The prosecution case as presented is traceable to the FIR dated 21.10.04 lodged by Pranab Kr. Bora I/C Howajan Police outpost with the Officer-in-Charge of Gohpur police station to the effect that on his visit to Dhandigaon on 20.10.09, he came to learn that the accused-Appellants had invited a businessman to their house in the evening of 18.10.04 to discuss with him about some transaction involving cattle. The FIR disclosed that at about 10/11 p.m. in the evening, they accompanied the said businessman in order to show him the cattle and on the way killed him by a sharp weapon on a paddy field near Rajkhowa Bahani at the back side of Dhandigaon and wrested from him Rs. 10,000/-. The FIR also revealed that the accused-Appellants after murdering the said businessman dragged the dead body to Dilapakhara and buried it there. Though with the help of the local people the dead body was thereafter recovered, its identification was not possible. On the basis of the said FIR, Gohpur PS case No. 197/04 under Sections 394/302/201 IPC was registered. On completion of investigation, charge-sheet was laid against the accused-Appellants under the aforementioned provisions of law. The learned trial Judge framed the charges against them under Sections 201/302/34 IPC. They pleaded innocence and therefore, the trial followed. The prosecution examined 21 witnesses including the Investigating Officers and the Doctor who performed the post mortem examination. Two Court witnesses, namely, Holiram Basumatary and Lakshiram Hazarika as C.W. 1 and C.W. 2 respectively were also examined. The learned trial Judge framed the charges against them under Sections 201/302/34 IPC. They pleaded innocence and therefore, the trial followed. The prosecution examined 21 witnesses including the Investigating Officers and the Doctor who performed the post mortem examination. Two Court witnesses, namely, Holiram Basumatary and Lakshiram Hazarika as C.W. 1 and C.W. 2 respectively were also examined. The accused-Appellants did not adduce any evidence. Their statements under Section 313 Code of Criminal Procedure were recorded and finally by the impugned judgment and order they were convicted and sentenced as hereinabove. 4. It is rather indispensable to outline the evidence on record at the threshold to appreciate better the competing arguments. 5. P.W. 1 Lakhiram Hazarika stated on oath that after having received an information one day from Sri Pankaj Borah, a co-villager that he had detected a blood stained shirt and a sandal lying in the midst of a paddy field and that the same indicated that some untoward incident had occurred, he went to the spot and on being satisfied about the authenticity of the information and the findings, he informed the matter to the police. In course of the investigation, the dead body was recovered near a beel called Dilapakhara which was found buried by some unknown miscreants. The police also picked up one Subhash Dowara who admitted before the Investigating Officer that the accused-Appellant Mohan Duwara had instructed him to plough over the land whereunder the dead body was recovered on the next day of the occurrence. According to this witness, Sri Subhash Duwara also stated before the Investigating Officer in his presence that in the night of the occurrence at about 11 pm, the accused-Appellants accompanied this businessman to the paddy field and later killed him and buried him there. This witness stated about the seizure of a sandal from the place of occurrence along with some coins, one black belt, shirt button etc. vide Exbt. 1, 2 and 3 and proved his signatures thereon as Exbt. 1/1, Exbt. 2/1 and Exbt. 3/1 respectively. He also stated about the inquest conducted on the dead body and proved the inquest report vide Exbt. 4 with his signature thereon as Exbt. 4(1). He also proved the seizure of a spade by the police vide Exbt. 5. vide Exbt. 1, 2 and 3 and proved his signatures thereon as Exbt. 1/1, Exbt. 2/1 and Exbt. 3/1 respectively. He also stated about the inquest conducted on the dead body and proved the inquest report vide Exbt. 4 with his signature thereon as Exbt. 4(1). He also proved the seizure of a spade by the police vide Exbt. 5. In cross-examination, this witness denied the suggestion that Sri Subhash Duwara had not stated before the Investigating Officer that the accused-Appellant Mohan Duwara had instructed him to plough over the land under which the dead body was laid and that they had accompanied the deceased to the paddy field in the night of the occurrence where later on the businessman was killed. This witness also stated that Subhash Duwara had since been apprehended and was in the custody of the police, more particularly before making of the above statement by him. 6. P.W. 2 Shri Dharani Bhuyan stated about the recovery of the dead body and the conduct of the inquest thereon. He expressed ignorance about the identity of the miscreants. The evidence of P.W. 3 Sri Putul Sarma is in the same lines. The evidence of P.W. 4 Sri Mohan Pathak, P.W. 5 Sri Bubul Borah, P.W. 6 Sri Golap Baruah, P.W. 7 Sri Dambaru Borah and P.W. 8 Sri Pabitra Bardoloi is identical. They consistently deposed that some years in the past one boy from their village having visited his paddy field detected a spot where some bushes of the paddy were destroyed and contained bloodstains. As he suspected that somebody might have been assaulted there, he returned to the village and informed the matter to the villagers whereupon they along with Ors. went to the place of occurrence and found the information to be true. They also saw some bloodstains at the spot with some coins and shirt buttons lying scattered there. They also stated to have found a sandal lying there at a little distance away. They then informed the police and after pursuing the fool print and the trail created by the dragging of some heavy substance detected a belt at about one furlong from the spot. The police taking the villagers proceeded further to the east and detected a place which aroused suspicion as the earth there was found to have been recently dug. They then informed the police and after pursuing the fool print and the trail created by the dragging of some heavy substance detected a belt at about one furlong from the spot. The police taking the villagers proceeded further to the east and detected a place which aroused suspicion as the earth there was found to have been recently dug. As the earth was removed, a dead body was recovered, the identity whereof was not readily available. The witnesses also stated about Subhash Dowara's making a statement before the police that the deceased was killed by the accused-Appellants. These witnesses proved the seizure of the sandal, belt and button at the place of occurrence vide Exbts. 1, 2 and 3. All these witnesses, in their cross-examination, were suggested that they had not stated before the Investigating officer the version of Sri Subhash Duwara as narrated by them in the examination-in-chief. The evidence of P.W. 9 Golap Duwara, P.W. 10 Minu Duwarah, P.W. 11 Palu Borah, P.W. 12 Deep Goala is not of much significance. 7. P.W. 13 Sri Subhash Duwara who had been referred to by P.Ws. 1, 5, 6 and 7 as above, in his examination-in-chief, though stated to be known to the accused-Appellants expressed ignorance about the incident. He further stated to have been assaulted severely by the police and the public. The witness was declared hostile and was cross-examined by the prosecution. In course of the cross-examination, this witness reiterated of having been assaulted by the police and tutored to make a statement to falsely implicate the accused-Appellants. He asserted against telling the police that the accused-Appellants had actually killed the deceased and went to the extent of stating that the police had drawn up a statement purported to have been made by him. According to him, the dead body was found buried in the land of accused-Appellant Mohan Duwara. He alleged that the police threatened him of dire consequences if he refused to say as tutored. He categorically denied to have said anything to anybody involving the accused-Appellants in the offence of murder. 8. P.W. 14 Sri Rajib Pegu and P.W. 15 Sri Bharat Doley claimed to be the witnesses of the recovery of the dead body and seizures of some clothes made by the police. 9. He categorically denied to have said anything to anybody involving the accused-Appellants in the offence of murder. 8. P.W. 14 Sri Rajib Pegu and P.W. 15 Sri Bharat Doley claimed to be the witnesses of the recovery of the dead body and seizures of some clothes made by the police. 9. P.W. 15 also implicated the accused-Appellants to have shown to the police the place at which the cloth were there. They however stated about their ignorance about the identity of the miscreants. 10. P.W. 16 Sri Pranab Kumar Bora was the In-charge of the Howajan Police outpost on 19.10.04 when Dambarudhar Bora and Babul Bora had visited it and for the first time reported about detection of some blood, a pair of sandals as well as a belt in the paddy field on the basis of which the investigation was initiated. This witness stated that a G.D. entry thereon was made. He also narrated the steps taken by him thereafter. He proved the FIR vide Exbt. 6 lodged on 21.10.04. In cross-examination, he admitted that aforementioned Dambarudhar Bora and Babul Bora had submitted a written information on which the G.D. entry was made. He conceded that the said FIR was not, however, available on the records. 11. P.W. 17 Sri Surat Jamal stated about recovery of the dead body at Howajan. P.W. 18 Md. Rajab Ali is the younger brother of the deceased who identified the dead body to be that of his elder brother at the Howajan police outpost after its recovery. According to him, he learnt about the arrest of the accused-Appellants said to be the assailants. In cross-examination, he candidly admitted his ignorance about the incident. 12. P.W. 19 Sri Keshab Baidya and P.W. 21 Sri Mohi Kant Gogoi are the police officers who investigated the case at two consecutive stages. P.W. 19 reiterated that the accused-Appellant Mohan Duwara had led him to the place of occurrence from where a pair of ash-coloured trouser, one white full-sleeved shirt and a reddish sleeveless vest had been seized. He did not mention that those were the belongings of the deceased. He further deposed that Sri Subhash Duwara who worked as domestic hand in the house of the accused-Appellant Musai Bora having claimed to have witnessed the incident was forwarded to the Court for recording of his statement under Section164 Code of Criminal Procedure, 1973. He did not mention that those were the belongings of the deceased. He further deposed that Sri Subhash Duwara who worked as domestic hand in the house of the accused-Appellant Musai Bora having claimed to have witnessed the incident was forwarded to the Court for recording of his statement under Section164 Code of Criminal Procedure, 1973. He identified the seized articles vide Exbts. 1, 2 and 3 in the Court. In cross-examination, this witness admitted of not having seized the blood stained belt and a pair of blood stained sandals from the place of occurrence. He further admitted the absence of any blood on the seized clothes. 13. P.W. 21 on completion of the investigation had submitted the charge-sheet Exbt. 11. In cross-examination with reference to his case diary, he stated that P.W. 1 Lakhshiram Hazarika had not told the Investigating Officer that the witness Subhash Duwara had disclosed to him that the accused-Appellant Musai Bora had allowed him to plough his paddy field. This witness further confirmed with reference to the case diary that Mohan Pathak (P.W. 4) had not stated that Subhash Duwara had disclosed that the accused-Appellants had murdered one person. He further endorsed on the basis of his case diary that the witness Subhas Duwara (P.W. 13) did not disclose before Pabitra Bordoloi (P.W. 8) and the police that the accused-Appellants had killed the deceased and had asked him (Subhash Duwara, P.W. 13) to bury the dead body in the paddy field. C.W. 1 Sri Holiram Basumatari at the relevant point of time was the SDJM, Biswanath Chariali who had recorded the statement of Sri Subhash Duwara (P.W. 13) under Section 164 Code of Criminal Procedure, 1973. He proved Exbt. 12 with the signature thereon as Exbt. 12(1). In cross-examination, he disclosed that P.W. 13 for the first time was produced on 22.10.04 for recording his statement, but that was not possible because it was on holiday whereupon he was directed to be produced on 25.10.04. This witness further conceded that he had not enquire about the place where Subhash Duwara had been kept during the period from 22.10.04 to 25.10.04 and that he did not ascertain in particular as to whether he was in the custody of the police during that time. This witness further conceded that he had not enquire about the place where Subhash Duwara had been kept during the period from 22.10.04 to 25.10.04 and that he did not ascertain in particular as to whether he was in the custody of the police during that time. C.W. 2 Lakshiram Hazarika in substance sought to reiterate that Subhash Duwara (P.W. 13) when asked by the police disclosed the involvement of the accused-Appellant in the murder. This witness stated that Subhash Duwara, however, was not assaulted or tortured by the police. In cross-examination this witness stated that the land from where the dead body was recovered was a free land and also expressed his ignorance whether the police had actually assaulted Subhash Duwara or not. The accused-Appellants in course of their statements recorded under Section 313 Code of Criminal Procedure, 1973 maintained a plea of a total denial to the charge reiterating, however, the assault and torture by the police on Subhash Duwara to extract the statement from him against them. 14. Mr. Sharma has urged that in absence of any eye witness to the incident and an unassailable and clinching circumstantial evidence unerringly establishing the culpability of the accused-Appellants, their conviction is per se illegal and, therefore, the impugned judgment and order ought to be interfered with. Questioning the veracity of the prosecution case on the ground of non-traceability of the FIR lodged at the first point of time, the learned Counsel has urged that it is a fit case where the accused-Appellants ought to be acquitted, the genesis of the case having been deliberately suppressed. Mr. Sharma has also urged that the so called incriminating circumstances referred to and relied upon by the learned trial Court being wholly insignificant, the impugned judgment and order is vitiated and ought to be set aside in the interest of justice. 15. The learned amicus curiae in particular has drawn the attention of this Court to the evidence of P.W. 13 Subhash Duwra to contend that the same is wholly unreliable to be acted upon to base the conviction of the accused-Appellants. 15. The learned amicus curiae in particular has drawn the attention of this Court to the evidence of P.W. 13 Subhash Duwra to contend that the same is wholly unreliable to be acted upon to base the conviction of the accused-Appellants. According to her, from his evidence, as well as from his statement recorded under Section 164 Code of Criminal Procedure it is evident that the same had been extracted by the police subjecting him to torture and tutoring and that the learned Court below ought not to have relied upon the same to record a finding of guilt against them. Ms. Das Majumder has contended that as the statement purportedly made by P.W. 3 is in direct conflict with the disclosures in the post mortem examination and the other evidence on record, the same per se is not worthy of any credence and that, therefore, in absence of any material on record establishing the nexus of the accused-Appellants and the offence, they are entitled to be acquitted. 16. Mr. Kamar, in reply has argued that the circumstances available against the accused-Appellants as revealed from the evidence of the prosecution witnesses is sufficient to fix the accused-Appellants as the miscreants and, therefore, their conviction is valid in law. He in particular has sought to rely upon the evidence of P.W. 19, one of the investigating officers to the effect that the accused-Appellants had led the police to the place of occurrence wherefrom a pair of ash-coloured trouser, one white full sleeved shirt and a reddish sleeveless vest had been recovered. According to the learned Public Prosecutor, this is an unimpeachable piece of evidence establishing the incriminating involvement of the accused-Appellants in the offence of murder. 17. We have carefully analysed the materials on record as well as the arguments advanced. It is apparent from the evidence of P.W. 16, one of the Investigating officers in the case that prior to the filing of the FIR Exbt. 6 on 21.10.04 an information about some incident had been lodged in writing with the police outpost concerned by Dambarudhar Bora and Babul Bora (P.W. 7 and P.W. 5 respectively), but the said document was untraceable thereafter. The G.D. entry that was made on the basis of the said information, on a plain reading does not disclose the involvement of the accused-Appellant. The G.D. entry that was made on the basis of the said information, on a plain reading does not disclose the involvement of the accused-Appellant. This is in contrast to the FIR aforementioned which depicted the accused-Appellants to be the assailants. A perusal of these two documents lead to the fact that the narration in the subsequent document is a mere detailed one indicating the involvement of the accused-Appellants to be the perpetrators of the crime. There is no explanation forthcoming disclosing the reason of the non-traceability of the written information lodged first in point of time by Sri Damarudhar Bora and Babul Bora. In the above premise, the defence plea of suppression of the genesis of the prosecution case cannot be readily discarded. 18. Admittedly, dehors P.W. 13 Subhash Duwara, there is no eye witness to the incident. Though the witnesses of the prosecution in general have indicated about detection of blood stains at a particular spot in the paddy field of the village along with some personal belongings scattered around the same as well as the recovery of the dead body a little away therefrom, they did not implicate the accused-Appellants directly. They sought to rely on the disclosures said to have been made by P.W. 3 Subhash Duwara before the police in their presence about the culpability of the accused-Appellants. Though P.W. 19, one of the investigating officers stated in his examination-in-chief about some seizures at the instance of the accused-Appellant Mohan Duwara, his evidence falls short of identifying the same with that of the deceased. As a matter of fact, none of the items seized by the police has been proved by the prosecution to belong to the deceased. The Investigating Officer (P.W. 21) in his cross-examination, on the other hand, had conceded of not having seized the blood stained belt and the sandal found strewn at the place of occurrence. No attempt whatsoever has also been made by the Investigating Officer to forward the seized articles for Forensic Science Laboratory examination to identify the bloodstains thereon, if any, to be that of the deceased. 19. The evidence of P.W. 13 on the face of it appears to be unreliable. No attempt whatsoever has also been made by the Investigating Officer to forward the seized articles for Forensic Science Laboratory examination to identify the bloodstains thereon, if any, to be that of the deceased. 19. The evidence of P.W. 13 on the face of it appears to be unreliable. Not only this witness has expressed ignorance of the incident in his examination-in-chief after being declared hostile in Court of his cross-examination, he has alleged severe torture by the police to elicit from him the statement under Section 164 Code of Criminal Procedure falsely implicating the accused-Appellants. The evidence of C.W. 1, the Judicial Officer who had recorded the statement is also far from satisfactory. Though a statement of a witness under Section 164 Code of Criminal Procedure cannot be considered to be absolutely at par with the confession of an accused under the said provision, on all fours, it is expected that such a statement must be ensured to put forth a version which is truthful and voluntary. It is thus, incumbent on the part of the judicial officer concerned to take necessary precautionary steps to ensure the above requisites. The revelation in the evidence of C.W. 1 that he had not, before recording the statement of P.W. 13, enquired about his place of stay between 22.10.04 to 25.10.04 and to ascertain in particular as to whether he was in the custody of the police during that time in our opinion falls short of the legally prescribed obligations peremptorily required of him to observe. 20. The statement of P.W. 13 recorded under Section 164 Code of Criminal Procedure apart from not having any substantive worth appears to be in conflict with the findings recorded by the doctor conducting the post mortem examination. This witness stated that the accused-Appellant Mohan Dowarah had strangled the deceased at the first instance whereafter the accused-Appellant Musai Bora had stabbed him in the abdomen for couple of times before cutting his throat. A bare perusal of the evidence of P.W. 20 Dr. Mina Bora Biswashi does not disclose any finding of strangulation. P.W. 13 also has contradicted about the place from where the dead body had been recovered. On a totality of the circumstances as recited hereinabove, we are of the unhesitant opinion that the testimony of this witness in isolation is not safe to be acted upon to base the conviction of the accused-Appellants. P.W. 13 also has contradicted about the place from where the dead body had been recovered. On a totality of the circumstances as recited hereinabove, we are of the unhesitant opinion that the testimony of this witness in isolation is not safe to be acted upon to base the conviction of the accused-Appellants. As alluded hereinabove, the prosecution case sans this witness is without any substance. 21. We have perused closely the judgment and order impugned in the instant appeals and in the background of the analysis of the evidence made, we do not find ourselves in agreement with the conclusions recorded by it on the basis of the circumstantial evidence referred to by it. 22. In the wake of the above, we are constrained to hold that the prosecution had failed to prove the charges against the accused-Appellants. The impugned judgment and order as a consequence is interfered with. The appeals are allowed. The Appellants are directed to be set at liberty forthwith. 23. Before we part with the record, we record our appreciation for the assistance rendered by Ms. R. Das Majumder. As a token thereof, we order payment of her professional fees which we quantify at Rs. 3,500/- (rupees three thousand and five hundred) only. The payment would be made forthwith. Appeal allowed.