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2012 DIGILAW 1128 (GAU)

Phagu Rajwar v. State of Assam

2012-09-21

ADARSH KUMAR GOEL, C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 31.3.2007, passed by the learned Additional Sessions Judge (F.T.C.), Sonitpur, Tezpur in Sessions Case No. 88/2006. By the impugned judgment and order, the learned Sessions Judge convicted the appellants, under section 302 IPC and sentenced both of them to suffer imprisonment for life and pay fine of Rs.2,000/- each in default suffer rigorous imprisonment for two months. We have heard Mr. M.H. Choudhury, learned Amicus Curiae appearing for the appellants and Mr. Z. Kamar, learned Public Prosecutor. 2. The prosecution case, in brief, is that, on 27.11.2005 at about 6 P.M., at village Roumari Gaon, Tezpur, the dead body of Shri Robert Bhutkowar (hereinafter called the deceased) was found lying dead, in injured condition, on the public road. Though the deceased was taken to the hospital for treatment, he succumbed to the injuries on way to the hospital. Shri Suren Bhutkowar (PW 1), brother of the deceased, lodged an FIR (Exhibit 1) with the Officer-in-Charge, Bokahat Police Station. After receipt of the FIR, Police registered a case and launched investigation into the matter. During the investigation, Police visited the place of occurrence, prepared the inquest report in respect of the deceased, forwarded the dead body for post mortem examination, seized the incriminating weapon and examined the witnesses. The prosecution version is that on the date of occurrence, both the deceased and appellant Sri Kundan Singh took liquor together and thereafter the said appellant left the place, followed by the deceased. According to the prosecution, the appellants made extra judicial confession. 3. At the close of the investigation, Police submitted charge sheet against the appellants, under sections 302/34 IPC. The offence being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions and the learned Sessions Judge framed charge, under section 302/ 34 IPC. The evidence for the prosecution, the accused persons were examined, under section 313 Cr. P.C. They denied the allegations, levelled against them and declined to adduce defence evidence. Their plea was a denial one. 4. Considering the evidence, on record, more particularly the circumstantial evidence, surfaced from the evidence of the prosecution witnesses, the learned Sessions Judge convicted and sentenced the appellants as indicated above. Being aggrieved, the appellants have preferred this appeal. 5. Mr. Their plea was a denial one. 4. Considering the evidence, on record, more particularly the circumstantial evidence, surfaced from the evidence of the prosecution witnesses, the learned Sessions Judge convicted and sentenced the appellants as indicated above. Being aggrieved, the appellants have preferred this appeal. 5. Mr. MH Choudhury, learned Amicus Curiae, taking this Court through the evidence, on record, has submitted that there is no direct, cogent and substantive evidence against the appellants and that the learned Sessions Judge has based the conviction only on presumption, without sufficient evidence on record. It is also submitted that the prosecution failed to establish the charge, brought against the appellants, beyond all reasonable doubt and as such the appellants are entitled to be acquitted and set at liberty. 6. The learned Public Prosecutor, referring the circumstantial evidence, revealed by the prosecution witnesses, that the appellants and the deceased had taken liquor together, that the deceased had left the place of taking liquor, immediately after the appellant, that the dead body of the deceased was found near the house of Shri Kundan Singh, appellant, that the incriminating weapon i.e. an axe was found in the house of the appellant, that Kundan Singh, appellant, was found uttering the name of the deceased immediately before the death of the deceased, that the deceased sustained cut injuries which were the causes of death of the deceased, has submitted that the said circumstantial evidence forcefully indicate that none other than the appellants had caused the death of the deceased. Referring to the evidence of PW 2 and PW 7, learned Public Prosecutor has also submitted that the appellants had made extra judicial confession before the said witness and that the said extra judicial confession, coupled with the circumstantial evidence, was sufficient to base the conviction. Therefore, the learned Public Prosecutor has submitted that the learned Sessions Judge committed no error by holding the appellants guilty of the offence under Section 302 and as such the impugned conviction and sentence do not need interference. 7. Having heard the learned counsel, appearing for both the parties and carefully considering the evidence on record, we find that none of the witnesses had seen the appellants assaulting the deceased. The prosecution case is based on the extrajudicial confession and circumstantial evidence. 7. Having heard the learned counsel, appearing for both the parties and carefully considering the evidence on record, we find that none of the witnesses had seen the appellants assaulting the deceased. The prosecution case is based on the extrajudicial confession and circumstantial evidence. The learned Sessions Judge has relied on the extra judicial confession, alleged to be made by the appellants and the circumstantial evidence as indicated above. There is no dispute that conviction can be based on the basis of the extra judicial confession, supported by circumstantial evidence. To accept the extra judicial confession, it must be confirmed that the witnesses, giving the evidence regarding extra judicial confession, had no reason to be bias or inimical to the accused person. Similarly circumstantial evidence, which leads to the irresistible conclusion, inconsistent with the innocence of the accused person, that none other than the accused person had committed the alleged crime can be acted upon. Therefore, we are required to examine if the evidence, given by the witnesses regarding extrajudicial confession is trustworthy and if the circumstantial evidence form a complete chain of events irresistibly leading to the guilt of the appellants. 8. PW 1, who lodged the FIR has exhibited the same as Exhibit 1. The FIR is silent about the involvement of the accused person. PW 1 who was the brother of the deceased, arrived at the place of occurrence after the incident and he had no knowledge as to who had assaulted the deceased. 9. Shri. Augusti Topno, who deposed as PW 2 stated that when he and the appellant Kundan Singh were taking liquor in village Mirigaon, the deceased and Shri Dharme-shwar also went there and soon after the arrival of the deceased, the appellant Kundan Singh left the place and he was followed by the deceased after about five minutes. According to this witness, on the next morning, he came to know that the deceased was killed. This witness stated that the appellants had confessed their guilt before the Police, in the Police Station. 10. Shri Alekzender @ Zender Bhutkonwar (PW3) stated nothing against the appellant. He appeared in the place of occurrence after the incident and he was a witness to the inquest report (Exhibit 2). 11. Smt. Durgeshwari Keot (PW4) stated that she was informed that some body had killed the deceased. 10. Shri Alekzender @ Zender Bhutkonwar (PW3) stated nothing against the appellant. He appeared in the place of occurrence after the incident and he was a witness to the inquest report (Exhibit 2). 11. Smt. Durgeshwari Keot (PW4) stated that she was informed that some body had killed the deceased. Accordingly, she visited the place of occurrence and found the deceased there. She also did not state anything about the involvement of the appellants. 12. Shri Mukunda Boro, who was the Gaon Burha of the village, deposing as PW 6, stated that he was present when the Police had taken the appellants to the house of Shri Kundan Singh. According to this witness, on being asked by the Police about the whereabout of the incriminating axe, the minor daughter of Kundan Singh had produced an axe, which was concealed in mud. According to this witness, police had seized the said axe vide Exhibit No. 4. He has exhibited his signature thereon. This witness was declared hostile by the prosecution. Though suggestion was put to him, on behalf of the prosecution, indicating that the appellant Kundan Singh had himself produced the said axe, he denied the said suggestion. From the evidence of this witness, it is found that the seized axe was produced by the minor daughter of the appellant Kundan and not by the appellant himself. Therefore, the said seizure does not amount to a seizure followed by the leading to discovery. 13. Shri Bagiram Borah deposing as PW7 stated that he appeared in the place of occurrence after the incident and that the deceased died on his way to hospital. This witness further stated that the conduct of the appellant Kundan Singh was suspicious and that he was apprehended, when he tried to flee therefrom. PW 7 stated that the appellant Phagu Rajbhor pointing to Sri Kundan stated that Kundan had killed the deceased. He further stated that the Police had taken both the appellants to the house of Kundan Singh and that the daughter of Kundan Singh had produced an axe, which was seized vide Exhibit 4. This witness further stated that Phagu Rajbhor disclosed that Kundan had killed the deceased with the said axe. The seized axe has been exhibited as material exhibit 1. This witness was also declared hostile and cross examined on behalf of the prosecution. This witness further stated that Phagu Rajbhor disclosed that Kundan had killed the deceased with the said axe. The seized axe has been exhibited as material exhibit 1. This witness was also declared hostile and cross examined on behalf of the prosecution. He denied the suggestion that Kundan Singh had confessed that he had killed the deceased with the said axe. 14. Shri Nandeswar Keot deposing as PW 8 stated that Police had taken both the appellants to the house of Kundan Singh and that the axe was recovered from the well of the house of Kundan Singh. Though this witness had stated that the axe was recovered, on being shown by Kundan Singh, both PW 2 and PW 7 stated that the axe was produced by the daughter of Kundan Singh. Thus, he contradicted the evidence of PW 2 and PW 7. 15. Smt. Ramani Bhatkonwar deposing as PW9 stated that she had heard the voice of accused Kundan Singh and thereafter found the dead body of the deceased lying near the house of Kundan Singh and that Smt Durgeswari (PW 4) was crying near the dead body. 16. Shri Dummik Bhatkonwar (PW 10) and Shri Nitimia Topno (PW 11) stated that they saw the dead body of the deceased lying injured on the road. 17. Sri Ananta Das (PW 12) was the Investigating Officer, who submitted the charge sheet. From the above discussed evidence, it is found that the dead body of the deceased was found lying in injured condition on the road, near the house of the appellant Kundan. 18. Dr. Binod Sharma (PW 5) who performed the post mortem examination in respect of the dead body of the deceased found the following injuries. (i) One lacerated wound of 1"x ¼" x ¼" size is seen on the right posterior anvicular region extending to right ear. No underlying bony lesion seen (ii) To lacerated wounds of signature 2" x 1" x 1" size are seen over the right parietal region of scalp. (iii) Fracture of right parietal bone is seen. (iv) Subdural haematoma on the right side is seen. (v) Laceration of right parietal correx brain is seen. He opined that the injuries were ante mortem and that the cause of death was the head injury. In view of the above, there is no doubt that the deceased died due to the injuries sustained by him. 19. (iv) Subdural haematoma on the right side is seen. (v) Laceration of right parietal correx brain is seen. He opined that the injuries were ante mortem and that the cause of death was the head injury. In view of the above, there is no doubt that the deceased died due to the injuries sustained by him. 19. Now the question is as to whether the said injuries were caused by the appellants. From the above discussed, prosecution evidence, we find that the following circumstances have been revealed. Firstly, the deceased and the appellant Kundan were seen together taking liquor and that the deceased left the place of taking liquor after Kundan had left the said place. Subsequently, the dead body of the deceased was found lying near the house of Kundan Singh. The second circumstance referred by the prosecution is that immediately after the incident, finding the Police in the place of occurrence, the appellant Kundan behaved suspiciously and he tried to flee therefrom. The third circumstance is that both the appellants were arrested by Police and they were taken to the house of Kundan wherefrom the material Exhibit 1 i.e. the axe was recovered. The Fourth circumstance is that the appellant Phagu Rajbhor had disclosed that the deceased was killed by Kundan Singh. Fifthly, the prosecution contended that both the appellants had confessed their guilt before the Police and in the Police Station. 20. Regarding the first circumstance, we find, from the evidence of PW2 that, after the arrival of PW2 in the place of taking liquor, the appellant Kundan had left the place and after about five minutes of the departure of Kundan, the deceased also left the said place. Even if we believe the evidence of PW2, the said circumstance, disclosed by PW2, does not conclusively lead to believe the appellants had assaulted the deceased. That apart, it has been revealed from the evidence of PW 2 that appellant Kundan had left the place of taking liquor prior to the deceased therefrom. Therefore, it cannot be held that Kundan had followed the deceased for any ulterior motive. The finding of the dead body of the deceased near the house of the appellant also does not inspire confidence to believe that the death of the deceased was caused by the appellant Kundan. Therefore, it cannot be held that Kundan had followed the deceased for any ulterior motive. The finding of the dead body of the deceased near the house of the appellant also does not inspire confidence to believe that the death of the deceased was caused by the appellant Kundan. PW 9 Smt. Ramani Bhatkonwar stated that she had heard the voice of Kundan, who had uttered, "Where has Robert gone?" According to the said witness, subsequently she found PW4 crying near the dead body of the deceased, which was lying near the house of Sri Kundan Singh. Smt. Durgeswari Keot, who deposed as PW4, stated that one Harai had informed her that a dead body was lying near their house. According to PW4, she cried, finding the deceased lying in a pool of blood. From her evidence, it appears that her house was near the place of occurrence. She did not state that she had heard Kundan Singh uttering any words inquiring about the deceased. If Kundan had uttered anything asking the whereabout of the deceased, this witness, being an adjacent inhabitant of the place of occurrence, would have heard the same. In her cross-examination, PW 9 stated that she did not hear any cry made by the deceased and that she did not know if Robert i.e. the deceased was there or not. If the deceased was assaulted by the appellant, he would have certainly cried and in that case this witness i.e. PW 9 would have heard the same while hearing Kundan asking about the deceased. We find no corroboration in the evidence of PW 9 to believe that she had heard Kundan Singh, asking about the whereabout of the deceased. Therefore, the evidence of PW9 that she had heard Kundan asking about the deceased cannot be treated as substantive evidence to believe the involvement of the appellants. 21. Regarding seizure of the axe (Material Exhibit No. 1), which is claimed to be incriminating weapon, it is found that, no chemical examination was made to ascertain if the same was used in committing the alleged crime. Therefore, mere seizure of the axe from the house of the accused person, unless corroborated by other incriminating evidence, cannot be accepted as substantive evidence against the accused person. Therefore, mere seizure of the axe from the house of the accused person, unless corroborated by other incriminating evidence, cannot be accepted as substantive evidence against the accused person. That apart, both PW 2 and PW 7, in whose presence the axe was seized, stated that the same was produced by a minor daughter of Kundan, the said two witnesses nowhere stated that the axe was recovered on being shown or produced on being pointed out by the appellant namely Kundan. But according to PW 8, the axe was recovered from a well on being shown by Kundan Singh. PW 2 and PW 7, who were also present at the time of recovery and seizure of the axe, do not support the evidence of PW 8 regarding the manner of recovery. Because according to PW 2 and PW 7, the axe was produced by the daughter of Kundan Singh. Hence we find that there is contradiction regarding the manner of seizure of the axe. Therefore, there is no evidence regarding leading to the discovery of said fact. Hence, the recovery of the axe from the house of the said accused cannot be accepted as substantive evidence against the appellants. 22. Now, we take up the evidence regarding extra judicial confession. From the evidence, on record, more particularly the evidence of PW2 and PW7, it is found that the alleged extrajudicial confession was made in the Police Station and in presence of Police. PW 2 in his evidence stated that the appellants had disclosed before the Police that they had killed the deceased. In his cross-examination, this witness made it clear that the accused persons had made the said disclosure in the Police Station, on being asked by the Police. Shri Bogiram Narah deposing as PW7, stated that after their arrest, appellant Phagu had disclosed that Kundan Singh had killed the deceased. He also stated that Kundan had told he had killed the deceased with the seized axe. The evidence of PW7 regarding the confessional statement made by Phagu Rajbhor was an exculpatory one. An exculpatory confession made by a co-accused cannot be acted upon. From the above discussion, it is found that the alleged confessional statement was made by the appellants before the Police Officer i.e. the Investigating Officer, on being asked by him, in presence of the witnesses aforesaid and also while in custody of Police. An exculpatory confession made by a co-accused cannot be acted upon. From the above discussion, it is found that the alleged confessional statement was made by the appellants before the Police Officer i.e. the Investigating Officer, on being asked by him, in presence of the witnesses aforesaid and also while in custody of Police. As provided by section 25 of the Indian Evidence Act, confessional statement made to the Police Officer cannot be proved against the person accused of an offence. Section 26 of the Evidence Act also provides that confession made by an accused while in custody of the Police should not be proved against him. In the present case, as the confession was made to a Police Officer, while in the custody of Police, the same cannot be treated as legal evidence, because the same is hit by sections 25 and 26 of the Indian Evidence Act. In view of the above, if the confessional statement goes, there remains no other reliable evidence to bind the appellant with the alleged offence. 23. The evidence, that the appellant Kundan and the deceased were found taking liquor together, that the appellant left the place of taking liquor prior to the deceased, that the dead body of the deceased was found lying, on the road in injured condition, near the house of the deceased, that an axe was recovered from the house of appellant Kundan Singh on being produced by his minor daughter, do not form a complete chain of events leading to the only hypothesis that, none other than, the appellants had caused the fatal injuries, in as much as Kundan Singh did not follow the deceased. That apart, there is no evidence to show that the deceased was last seen in the company of the appellants. 24. In view of what has been discussed above, we have no hesitation in holding that the prosecution failed to prove, beyond all reasonable doubt, that the appellants caused the death of the deceased. Therefore, the appellants are entitled to be acquitted on benefit of doubt. We find sufficient merit in this appeal requiring interference with the impugned conviction and sentence. The appeal is allowed. The conviction and sentences are set aside. The appellants are acquitted and they be set at liberty forthwith, if not wanted in any other case. 25. Therefore, the appellants are entitled to be acquitted on benefit of doubt. We find sufficient merit in this appeal requiring interference with the impugned conviction and sentence. The appeal is allowed. The conviction and sentences are set aside. The appellants are acquitted and they be set at liberty forthwith, if not wanted in any other case. 25. Before we part with this judgment, we appreciate the assistance rendered by Mr. M.H. Choudhury, learned Amicus Curiae. We order that an amount of Rs.5,000/- be paid to the learned Amicus Curiae as his remuneration, by the Assam State Legal Services Authority. For the sake of brevity, without repeating the discussions made in the Criminal Appeal No. 93(J) /2005 (disposed of on 22.12.2011), with regard to the victim compensation, as provided by Section 357A .I.P.C., we make the following directions: (1) As an interim relief, and without prejudice to the right of the dependants of the victim to claim higher amount, an amount of Rs.50,000/- be deposited by the State Government with the District Legal Services Authority of Sonitpur District within a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependant(s), who suffered loss and injury as a result of death of the deceased and also if such dependent(s) or legal representative(s) need any rehabilitation" (2) Upon such enquiry, if it is found that the dependent(s), if any, need rehabilitation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. It is made clear that if the District Legal Services Authority, after due enquiry, arrive at the findings that there is no dependent(s) or that the dependent(s) of the deceased/ victim does not require any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs.50,000/-, without delay, in favour of the State Government. Let a copy of this judgment and order be furnished to the Chief Secretary to the Government of Assam, for doing the needful. Return the LCR.