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2011 DIGILAW 94 (GAU)

Ram Bin v. State of Assam

2011-02-03

MADAN B.LOKUR, MAIBAM B.K.SINGH

body2011
JUDGMENT Madan B. Lokur, J. 1. The Appellant is aggrieved by his conviction and sentence passed by the learned Sessions Judge, Hailakandi in Sessions Case No. 40/2005 by a judgment dated 15-2-2006. 2. We are of the opinion that matter is not free from doubt and so the Appellant must be given the benefit thereof and his appeal accepted. 3. On 30-4-2004 Renu Bala Mal lodged a First Information Report (FIR) with the officer-in-charge of Katlichera Police Station in Hailakandi district. As per the FIR at about 7 p.m. on 29-4-2004 a quarrel took place apparently in the house of the Appellant over some family matters. As a result thereof, the Appellant and his two brothers began to beat Anita Bin (wife of the Appellant and since deceased). Upon hearing the hue and cry, the husband of the complainant, that is, Parsuram Mal and her son Sunil Mal went to the house of the Appellant and they saw the deceased being beaten up by the accused persons. When Parsuram Mal and Sunil Mal went to save the deceased, the accused hit Sunil Mal on the head with a lathi and inflicted severe injuries on the leg of Parsuram with a weapon. Sunil Mal is alleged to have run away from the place of occurrence and some people, apparently from the neighbourhood, rescued Parsuram Mal from the place of occurrence. Thereafter, the accused persons are stated to have killed Anita Bin and left her body at the E & D embankment. 4. On the basis of the FIR, investigations were conducted by the Hailakandi Police and a charge sheet filed in which it was alleged that the Appellant and his brother Radha Kanta Bin committed the murder of Anita Mal at about 7 p.m. on 29-4-2004 and thereby committed an offence punishable under Section 302/34 IPC. It was also alleged that the accused persons had voluntarily caused grievous hurt to Parsuram Mal and thereby committed an offence under Section 325/34 of the IPC. The further allegation was that simple hurt was caused on the person of Sunil Mal thereby the accused committed an offence under Section 323/34 of the IPC. The accused persons pleaded not guilty and claimed to be tried. 5. The further allegation was that simple hurt was caused on the person of Sunil Mal thereby the accused committed an offence under Section 323/34 of the IPC. The accused persons pleaded not guilty and claimed to be tried. 5. At this stage it may be mentioned that insofar as Radha Kanta Bin is concerned he was acquitted of all the charges and the Appellant was also acquitted of causing grievous hurt to Parsuram Mal and simple hurt to Sunil Mal. He was however convicted of committing the murder of Anita Mal and was, therefore, sentenced to imprisonment for life. 6. The prosecution examined as many as seven witnesses but the only relevant witness is PW-1 Parsuram Mal, the father of the deceased. The complainant Renu Bala Mal could not be examined because it appears that she had died in the meanwhile. Similarly Sunil Mal also could not be examined because he had also apparently passed away. The only eye witness to the incident, therefore, was the father of the deceased, that is, PW-1 Parsuram Mal. 7. Before considering the evidence on record, it may be mentioned that there is no medical evidence with regard to the injury on the body of Parsuram Mal in spite of what is mentioned in the FIR. It may also be mentioned that according to the FIR some people rescued Parsuram Mal from the place of occurrence but no such person was cited as a witness during the trial. 8. In his testimony Parsuram Mal stated that he heard some quarrel between the Appellant and his daughter and, therefore, he (the witness) accompanied by his son Sunil Mal visited the house of the Appellant where he saw the accused assaulting his daughter (the deceased) with his fists. The witness tried to resist but in vain. Instead, the Appellant brought out an iron rod and along with his two brothers assaulted him and fractured his leg. There is no mention in his testimony whether any injury was caused on Sunil Mal. In any case, after the alleged assault on Parsuram Mal the deceased went to inform the Secretary of the Village Defence Party (VDP) but she was followed by the Appellant and his two brothers and attacked with dao, rod etc. and killed near the E & D bundh. In any case, after the alleged assault on Parsuram Mal the deceased went to inform the Secretary of the Village Defence Party (VDP) but she was followed by the Appellant and his two brothers and attacked with dao, rod etc. and killed near the E & D bundh. According to this witness he was hospitalized for his injury in the Silchar Medical College and Hospital where the Secretary of the VDP obtained his signature on the FIR and submitted it to the police Station. As we have noticed above, the FIR was not lodged by Parsuram Mal but by his wife Renu Bala Mal. 9. From the cross examination of PW-1 Parsuram Mal it appears that there was some incident involving one person by the name of Raju Bin and the deceased but the witness did not seem to know very much about that incident. It was put to him in cross examination that in a bichar held in the village, the deceased was handed over from Raju Bin to the Appellant but this was denied by him. He also denied that Raju Bin had attacked and assaulted the Appellant on the road and on hearing a cry, the deceased rushed to the road and tried to save her husband (the Appellant) at which point of time Raju Bin assaulted her, which resulted in her death. The witness denied any knowledge of this incident. 10. The fact that the above incident was put to the witness PW-1 Parsuram Mal is of some significance because that is the case set up by the Appellant in his examination under Section 313of the CrPC. In other words, the defence put up by the Appellant was at the first instance and not much later. 11. The testimony of PW-2 Smti Kiron Ree, PW-4 Nikhil Ch Paul and PW-5 Poltu Roy is of no significance since they were not aware of anything other than having seen the dead body of the deceased on the road. 12. PW-3 Adhir Mal had mentioned in his cross examination that Raju Bin had kidnapped the deceased and for that reason there was a bichar and as per the decision of the bichar the deceased was sent back to her husband (the Appellant). 13. 12. PW-3 Adhir Mal had mentioned in his cross examination that Raju Bin had kidnapped the deceased and for that reason there was a bichar and as per the decision of the bichar the deceased was sent back to her husband (the Appellant). 13. PW-5 Dr Sajidul Islam was the doctor who had examined Sunil Mal and he stated in his testimony that Sunil Mal had one cut lacerated wound over the left parietal region of size 0.5 cm x 0.5 cm. According to him the injury was simple, perhaps caused by a blunt object, although he admitted that it could be caused by a simple fall on the ground. 14. The doctor who conducted the post mortem examination on the deceased was not examined but the post mortem report was exhibited through PW-6. 15. The testimony of PW-7 Robindra Singha, the Investigating Officer, is rather casual and all that he says is that he recorded the statement of the witnesses and held the inquest of the dead body of the deceased. He also says that he forwarded Parsuram Mal and Sunil Mal to the Medical Officer for their treatment and obtained a medical certificate to that effect and thereafter filed the charge sheet. 16. In his statement under Section 313 of the CrPC, the Appellant gave a written statement. This statement reads as follows: I Shri Ram Bin, S/o Lt. Ram Rup Bin, resident of Village. Hati Doba, Dholai T.E. Thana Katlichera, Dist. Hailakandi, by occupation Garden labourer aged about 27 years, solemnly declare that I did not kill my wife Anita Mal. Marriage between Anita and me was solemnized 9 years ago after we had an affair. Two sons were born. But they died. My father in law had not approved that marriage. He had the intention to marry of his daughter Anita Mal to Raju Bin. But deceased Anita had not agreed to that. One day coming from the T.E. in the evening I saw Raju Bin sleeping with my wife at my house. I then called my father in law. In the meantime, Raju Bin went away from my house. Following day I went to the T.E. Raju Bin abducted my wife in the evening time. A 'bichar' (an extra Judicial trial) was held in the village over this issue. I then called my father in law. In the meantime, Raju Bin went away from my house. Following day I went to the T.E. Raju Bin abducted my wife in the evening time. A 'bichar' (an extra Judicial trial) was held in the village over this issue. In the 'bichar' Anita Mal my wife was rescued from Raju Bin house after ten days and was handed over to me. Raju Bin was planning to kill me after that. In the evening, on 29.4.04, Raju Bin attacked me on the road. When I outcried my wife Anita Mal came and requested him not to beat me. Raju Bin attempted lathi blows on me whereupon Anita embraced me and one of the blows landed in her head. She died instantaneously. I did not kill my wife Anita Mal. I did not commit any crime. 17. In sum and substance the case put up by the Appellant is that he and the deceased had an affair and were married about 9 years ago and they also had two children, both of whom unfortunately passed away. The Appellant's father-in-law did not approve the marriage since he had intended his daughter (the deceased) to get married to Raju Bin but she did not agree to that. It appears that one day the Appellant saw Raju Bin sleeping with the deceased and informed his father-in-law but by the time he came there Raju Bin had gone away. On the very next day Raju Bin kidnapped the deceased and a bichar was held in the village over the issue and the deceased was rescued from the house of Raju Bin after about ten days and handed over to the Appellant. It is under these circumstances that some sort of enmity developed between Raju Bin and the Appellant. 18. In his further statement the Appellant says that on 29-4-2004 Raju Bin attacked him on the road and when he raised some cries, the deceased came and requested Raju Bin not to beat the Appellant but he did not bother about the request and attempted to hit the Appellant with a lathi and the blow landed on the deceased when she was embracing the Appellant. The deceased died as a result of the blow given by Raju Bin. 19. We are of the view that there are some serious doubts with regard to the prosecution case. The deceased died as a result of the blow given by Raju Bin. 19. We are of the view that there are some serious doubts with regard to the prosecution case. As we have already mentioned above, the recording of the FIR itself raises some doubt. We are unable to understand why the FIR was not lodged either by Parsuram Mal or by Sunil Mal, both of whom were present when the Appellant was assaulting his wife (the deceased). Instead, the FIR was lodged by the wife of Parsuram Mal even though she was not present when the alleged assault took place. 20. We have also noted that according to the FIR some people rescued Parsuram Mal from the house of the Appellant but no such person was called to the witness box. Though it is stated that there were some injuries on the person of Parsuram Mal but there is no medical evidence to this effect and even though the Appellant attacked Sunil Mal with a lathi, the evidence shows that he had an injury of the size 0.5 cm x 0.5 cm which could have even been caused by a simple fall. The nature of the injury suggests that it is unlikely that it was caused by a lathi blow, as alleged. For these reasons we find the case put up by the prosecution a little hard to swallow. 21. Even otherwise, the testimony of PW-1 Parsuram Mal also does not inspire much confidence. He mentions that he was assaulted by the Appellant but does not say anything about Sunil Mal being assaulted by the Appellant or any of his brothers. This witness also mentions that the FIR was lodged by him, which is factually incorrect. The crux of the evidence of PW-1 Parsuram Mal lies in his cross examination where he does not categorically deny that there was something going on between Raju Bin and the deceased in the sense that Raju Bin perhaps had a soft corner for the deceased. 22. If that be so, it is quite possible that the story put up by the Appellant in his statement under Section 313 of the Code of Criminal Procedure may have a ring of truth in it. 22. If that be so, it is quite possible that the story put up by the Appellant in his statement under Section 313 of the Code of Criminal Procedure may have a ring of truth in it. The fact that Raju Bin had some sort of a soft corner for the deceased is also clear from the testimony of PW-3 Adhir Mal who stated that Raju Bin had kidnapped the deceased which resulted in a bichar where after the deceased was sent back to live with the Appellant, though it seems that this happened after about 10 days or so. 23. It is quite possible, on the basis of the materials on record that Raju Bin wanted to eliminate the Appellant so that he could lead his life with the deceased. It is under these circumstances that he might have attacked the Appellant, as narrated by him in his statement under Section 313 of the CrPC, and inadvertently dealt a blow on the head of the deceased causing her death. 24. We do not know what actually transpired but it appears that Parsuram Mal has not told the complete truth. Raju Bin was not examined by the Investigating Officer under Section 161 of the Code of Criminal Procedure and in any case he was not called to the witness box. The Appellant has his version in his statement under Section 313 of the Code of Criminal Procedure and there does not seem to be any reason to completely disregard it. 25. The learned Trial Judge has mentioned that "it was in the air" that the Appellant had killed the deceased. We do not think that on the basis of some hearsay evidence a conviction under Section302 of the IPC can be founded. The learned Trial Judge has also completely rejected the story put forth by the Appellant in his statement under Section 313 of the Code of Criminal Procedure and instead relied upon the sole testimony of PW-1 Parsuram Mal. 26. As we have mentioned above, two views are possible on this subject. Consequently, rather than upholding it, we think it safe to set aside the conviction and sentence of the Appellant, considering the materials on record, and thereby acquit him of the charge of having murdered his wife Anita Bin. The appeal is allowed. 27. 26. As we have mentioned above, two views are possible on this subject. Consequently, rather than upholding it, we think it safe to set aside the conviction and sentence of the Appellant, considering the materials on record, and thereby acquit him of the charge of having murdered his wife Anita Bin. The appeal is allowed. 27. For the services rendered by learned Amicus Curiae we direct the Assam State Legal Services Authority to remunerate him with a sum of Rs.5000/-. 28. The Trial Court records be sent back immediately. Appeal allowed.