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2011 DIGILAW 246 (GAU)

Phalu Karmakar @ Ganesh Bhumij v. State of Assam

2011-03-21

A.K.GOSWAMI, MADAN B.LOKUR

body2011
JUDGMENT Madan B. Lokur, C.J. 1. The appellant is aggrieved by the judgment dated 19.5.2005 of convicting and sentencing him to life imprisonment by the Sessions Judge at Dibrugarh in Sessions Case No.5 of 2003. 2. The facts of the case fall within a narrow compass inasmuch as on 10th June, 2001 Kania Mudi saw his six year old son Madhab Mudi with the appellant at about 12 Noon. Earlier in the day, as per the testimony of Kania Mudi, the appellant and Madhab Mudi were watching TV in the house of Kania Mudi. Thereafter, Kania Mudi then went back to his "gumti" stall and saw Madhab Mudi leaving the premises along with the appellant. Kania Mudi, under circumstances, assumed that Madhab Mudi was going to watch TV with the appellant. 3. Since Madhab Mudi did not return till about 7 p.m., Kania Mudi went in search of him along his family members. They were searching for him till about 11 p.m. that night but not finding him anywhere, they went in search of the appellant and found him at Ram Mura's house. When the appellant was asked the whereabouts of Madhab Mudi, he stated that he had put him in a bus, but he failed to give the details of the bus. Later that night, the dead body of Madhab Mudi was found in a drain in the Tea Garden in which Kania Mudi was living. Later on, the dead body was examined and an autopsy conducted and it is found that Madhab Mudi was sodomized and killed. 4. On these broad facts, Kania Mudi lodged the first information report with the local police on 11.6.2001. 5. After investigation, the local police filed a charge sheet against the appellant and the Sessions Judge framed the following two charges against him : - First - That you, sometime between 10.6.2001 and 11.6.2001 behind the Manager's Bungalow of Pithaguti T.E. situated within the jurisdiction of Tingkhong Police Station, had carnal intercourse against the order of nature against a minor male child namely Madhab Modi, son of the complainant Shri Mania Modi and thereby committed an offence punishable under section 377 of the Indian Penal Code, and within my cognizance. Secondly - That you, or on about the same day, time and place of occurrence you committed murder by intentionally causing the death of the said minor boy, viz. Secondly - That you, or on about the same day, time and place of occurrence you committed murder by intentionally causing the death of the said minor boy, viz. Madhab Modi (aged about 6 years) by means of strangulation and thereby committed an offence punishable under section302 of the Indian Penal Code, and within my cognizance. 6. The appellant denied the charges and pleaded not guilty and claimed to be tried. 7. We have gone through the entire evidence with the assistance of learned amicus curiae and find that the only relevant evidence is that of PW1 Kania Mudi the father of the deceased. We have already indicated the broad contours of his evidence and the case for the prosecution is entirely dependent upon his testimony and the last seen theory sought to be invoked by the prosecution. 8. In this context, we may also indicate that when the appellant was asked during investigation the whereabouts of Madhab Mudi, he (the appellant) indicated that Madhab Mudi was put in a bus running towards Rajgarh. 9. Under these circumstances, it appears to us that Madhab Mudi was last seen with the appellant (as stated by Kania Mudi and that the appellant had also admitted being with Madhab Mudi) A little later the sodomized and dead of Madhab Mudi was found. 10. In view of the last seen theory propounded by the prosecution, and in which we find considerable merit, it was incumbent upon the appellant to explain the events and the circumstances that occurred. 11. Unfortunately, we do not find any explanation forthcoming from the appellant in this regard. We have, therefore, no option but to accept the last seen theory propounded by the prosecution and to uphold the conviction of the appellant. The time lag from the time when Kania Mudi last saw Madhab Mudi and the appellant together is not considerable - just a few hours. That they were watching TV in the residence of Kania Mudi is not in dispute; that they went out together is also admitted by the appellant in as much as he says that later he put Madhab Mudi on a bus to Rajgarh. It is quite soon thereafter that the sodomized and dead body of Madhab Mudi was recovered. 12. That they were watching TV in the residence of Kania Mudi is not in dispute; that they went out together is also admitted by the appellant in as much as he says that later he put Madhab Mudi on a bus to Rajgarh. It is quite soon thereafter that the sodomized and dead body of Madhab Mudi was recovered. 12. It was sought to be brought to our notice by the learned Public Prosecutor, relying upon the evidence of PW3 and PW4 that the appellant had confessed to the crime in the presence of the police. Unfortunately, we cannot rely upon this because this evidence is hit by section 25 of the Evidence Act. 13. Ordinarily we would not have relied upon the sole testimony of the father of Madhab Mudi, but on the facts of this case, we have no other option but to do so. Kania Mudi was cross-examined by the defence and his testimony was not shaken at all. We, therefore, we do not see any reason to disbelieve this witness. Moreover, for a crime like the one that we are concerned with, it is difficult to find any witness. 14. We may also note that our attention has been drawn to the medical evidence which clearly shows that Madhab Mudi had been sodomized and then killed. 15. Under the circumstances, we uphold the conviction of the appellant on both the charges levelled against him and confirm the sentence of imprisonment of life. 16. A free copy of this judgment be supplied to the appellant. 17. The trial court records be sent back immediately. 18. For the assistance rendered by learned amicus curiae, the Assam State Legal Services Authority is directed to remunerate to her to the extent of Rs. 5,000.