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2012 DIGILAW 1176 (GAU)

Lalita Rabha Nath v. State of Assam

2012-10-03

I.A.ANSARI, P.K.MUSAHARY

body2012
JUDGMENT P.K. Musahary, J. 1. This appeal is directed against the judgment and order dated 10.5.2007 rendered by the Addl. Sessions Judge (FTC), Darrang, Mangaldoi Sessions Case No. 42 (DMFT)/2005 convicting the appellant under Section 302 IPC sentencing her to imprisonment for life and to pay fine of Rs. 3,000/-, in default R.I. for another 6 (six) months. The appellant is serving the Sentence and she has preferred this appeal from jail through the jail authority. Briefly stated, the prosecution case is that a written FIR was received from one Deven Nath at Mazbat PS wherein is alleged that in the afternoon of 13.6.2004 at about 6.15 PM his sister-in-law Lalita Rabha Nath caused death to her husband Chandrakanta Nath by dao blow and on the basis of the said FIR a crime being Mazbat PS Case No. 54/2004 was registered under Section 302 IPC and the Officer-In-Charge himself took the charge of investigation of the case. The I.O., visited the place of occurrence, conducted inquest on the dead body of the deceased, sent the dead body to Mangaldoi Civil Hospital for holding post-mortem examination, seized the dao allegedly used by the accused in committing the crime and also one 'sadar' from the possession of the accused. During investigation, the I.O. also recorded the statements of witnesses and after completion of investigation submitted the charge-sheet against the appellant. The learned SDJM Mangaldoi committed the case to the court of Sessions, Darrang, Mangaldoi for trial. Accordingly, the Sessions Case No. 108(DM)/2005 was registered, which was made over to the Court of Additional Sessions Judge (FTC) Darrang and re-numbered as Sessions Case No. 42 (DMFT)/2005 for trial. The appellant was furnished with the relevant documents and on being heard and upon consideration of charges, a charge u/s 302 IPC was framed against her. The said charge being read over and explained, the appellant pleaded not guilty and claimed to be tried. 2. We have heard Mr. M. Biswas, learned Amicus Curiae for the convict appellant and Mr. K. M. Mazumdar, learned Addl. P.P., Assam, for the State respondent. 3. In order to bring home the aforesaid charge against the appellant, the prosecution examined as many as 8 witnesses including the I.O. and the Medical Officer. The appellant being examined under Section 313 CrPC, declined to examine any witness in her defence. 4. K. M. Mazumdar, learned Addl. P.P., Assam, for the State respondent. 3. In order to bring home the aforesaid charge against the appellant, the prosecution examined as many as 8 witnesses including the I.O. and the Medical Officer. The appellant being examined under Section 313 CrPC, declined to examine any witness in her defence. 4. For the purpose of coming to a correct conclusion we propose to appreciate and review the evidence on record, particularly oral evidence of the prosecution witnesses. PW 1, Shri Deven Nath who is the brother of the deceased. He lodged the FIR on receipt of the information about the incident from one Jyotin Nath over telephone. He was not present at the place of occurrence. As per his evidence after reaching the village at night he did not enquire about the death of his brother and lodged the FIR only after hearing about the incident from the said Jyotin Nath. The evidence of PW 1 bears no importance and significance. PW 2 Shiojee Singh is a Habilder of Mazbat Police Station. He deposed that in the evening of that fateful day at around 7 PM he was on patrolling duty and he went to the place of occurrence on hearing the hue and cry at Mazbat Railway Station. He saw the deceased Chandra Kanta Nath lying on the road side in an injured state. He could see the wife of the deceased standing near Chandrakanta Nath with a blood stained dao in her hand which was snatched by a member of the battalion from her hand. He also saw injury marks on the head and hand of the deceased with blood all over the body. He also stated that when the dao was snatched from her hand the accused said that the injured is finished. The accused was then taken to police station while the injured was taken to Mazbat Hospital where he was declared dead by doctor. This witness deposed that the dao was handed over to police station but it was not seized before him. This witness again stated that he does not know who was the battalion person who snatched the dao. He also does not know the names of the persons who were on duty with him. 5. PW 3, Debeswar Baishya is an independent local witness who owns and runs a pharmacy near the tailoring shop of the appellant. This witness again stated that he does not know who was the battalion person who snatched the dao. He also does not know the names of the persons who were on duty with him. 5. PW 3, Debeswar Baishya is an independent local witness who owns and runs a pharmacy near the tailoring shop of the appellant. At the time of occurrence, as per his evidence, he was cleaning his kitchen garden situated at the back side of his pharmacy. On hearing the noise he went to the place of occurrence and saw Chandrakanta lying on the ground with cut injuries on his head with blood all over the body. He also saw the deceased wife Lalita Rabha Nath (accused) standing near him. He clearly deposed that he did not see anything on her hand. He testified that he was the town Habilder and he was present with his staff at the place of occurrence. According to evidence of PW 3, the said town Habilder and his party took Chandrakanta to the police station on 'thela' but he died while he was picked up in the 'thela'. This witness was declared hostile. He admitted that the police took his statement but he denied that he ever stated before the police that at the time of incident he was in his pharmacy in the evening at around 6 PM and the deceased Chandrakanta, before the incident, came near the shop of Lalita by a bicycle and dashed the beetle nut shop in front of her tailoring shop and then a quarrel took place between them and thereafter the appellant came out with a dao and delivered a dao blow on the hand and then below the neck of the deceased. In cross examination, PW 3 categorically stated that he did not see the accused "Lalita cutting Chandrakanta with dao". This witness denied that he ever said anything before the police about giving dao blow on the person of the deceased by the accused appellant. Niraj Brahma is a policeman who was examined as PW 4. He testified that he was on patrolling duty along with the town Habilder and others at around 5.30 PM on the date of occurrence. They were informed about the said incident and immediately visited the place of occurrence. Niraj Brahma is a policeman who was examined as PW 4. He testified that he was on patrolling duty along with the town Habilder and others at around 5.30 PM on the date of occurrence. They were informed about the said incident and immediately visited the place of occurrence. He saw a person lying on the road side with blood all over his body with injuries above the neck and one lady standing nearby the deceased. He heard that the injured was hit by a dao. He put his signature on a piece of paper at the police station on which the seizure list was prepared. In cross examination he stated that the town Habilder showed the dao to him and blood on the said dao. He was told by the Habilder that it was the very dao by which the lady hacked the deceased. But this witness, in clear terms stated that he did not see the "incident of cutting". PW 5, Bijay Islary is another constable of 12th APBN who was on patrolling duty on the said date and time of occurrence. He deposed in the same manner as was done by PW 4. PW 6, Chand Miyan, was also on patrolling duty along with PW 2, 4 and 5 on the date and time of occurrence. His evidence is also same to the evidence of PW 2, 4 and 5. He signed the seizure list as a witness at the police station but he does not know who brought the seized dao to the police station. He did not touch the dao. He is not an eye witness and he simply heard from some people that the injured was assaulted by his 'family' (wife). 6. The I.O. Sri Kanak Ch. Nath was examined as PW 7. As per his evidence, he was verbally informed about the incident at the police station by Habilder Sheojee Singh (PW 2). He made a GD entry on 13.6.2004 when the dead body of the deceased was brought in a 'thela' to the police station. According to him, during investigation the accused Lalita confessed her guilt and her statement (Ext. 6) was recorded by him. The accused Lalita put her signature (Ext. B 1) on the said statement. He also seized a piece of cloth (sadar) along with the dao (Mat. Ext. 1) vide seizure list (Ext. 3). According to him, during investigation the accused Lalita confessed her guilt and her statement (Ext. 6) was recorded by him. The accused Lalita put her signature (Ext. B 1) on the said statement. He also seized a piece of cloth (sadar) along with the dao (Mat. Ext. 1) vide seizure list (Ext. 3). Thereafter on receipt of the post-mortem report he submitted the charge-sheet (Ext. 5). He has reiterated in his deposition that PW 3, Debeswar Baishya, during investigation, while giving his statement stated that in the evening of that fateful day at about 6 PM, Lalita's husband Chandrakanta Nath came to her shop on a bicycle and hit the beetel nut shop which was on a table with a bicycle and started quarrelling with Lalita who brought the dao from inside and hit her husband on his hand and thereafter on his neck. This witness further reaffirmed that watching the arrogance of Lalita nobody went near her rather they fled away after closing the door and when the police came at the place of incident she was arrested along with the dao and the injured died while arrangement was being made to carry him to hospital in a 'thela'. In cross examination the I.O. clearly stated that the dao was not sent for FSL examination. He denied that he did not send the dao to FSL as he found no blood stain on it. PW 8, the medical officer Dr. Nikhil Ranjan Sarma who performed the post-mortem examination on the dead body of deceased Chandrakanta Nath, was examined as PW 8. He proved the post-mortem examination report which was marked as (Ext. 6). His findings, as per post-mortem examination report, are as follows– (1) Physical appearance :- Dead body of a male person of average build. Rigotmortis present. Mouth closed. Eyes half open. (2) Injuries :- (i) A deep cut injury over right cheek below ear, size 10 cm long upto brain. (ii) cut injury above right ear 8 cm long upto brain depth. (iii) cut injury over scalp over right parital eminence 10 cm long upto brain. (3) Cranium and Spinal Canal :- (i) Fracture of mandible of right side, right maxilla, right temporal bone, right parital bone. (ii) Membrane - Lacerated at right side at multiple site. (iii) Brain - Lacerated over frontal and temporal occipital lobe on right side. (iii) cut injury over scalp over right parital eminence 10 cm long upto brain. (3) Cranium and Spinal Canal :- (i) Fracture of mandible of right side, right maxilla, right temporal bone, right parital bone. (ii) Membrane - Lacerated at right side at multiple site. (iii) Brain - Lacerated over frontal and temporal occipital lobe on right side. (4) Abdomen :- All abdominal organs are found healthy. (5) Thorax :- Thorax organs are found healthy. (6) Bones :- Fracture of mandible right side, right temporal and right maxilla. 7. As per post-mortem report of the medical officer, the death was due to shock as a result of ante mortem injuries sustained by the deceased and all the injuries are independently sufficient to cause the death of a person in the ordinary course of nature. The injury sustained, as per his opinion, might be caused by a dao like Mat. Ext. 1. In cross examination, he clarified that the injuries sustained by the deceased cannot be caused by a weapon like axe or dagger. 8. The incriminating evidence recorded against the appellant were put to the appellant by way of examining her under Section 313 CrPC. She denied all the evidence against her. She also denied that she ever confessed her guilt before the police. She claims that she went to the police station on her own demanding proper investigation into her husband's death and nobody handed over the dao to the police station. The appellant's stand is simple denial. She declined to adduce any evidence in her defence. 9. There is only one independent witness examined by the prosecution. He is PW 3, Debeswar Baishya, who arrived at the place of occurrence after the alleged occurrence. He denied the suggestion that he saw in his own eyes the actual act of assault by a dao or any weapon by the perpetrator on the person of the deceased. He has also denied that he saw anything in the hand of the appellant while he saw her standing near the injured husband. He did not corroborate the evidence of PW 2 who deposed that the convict appellant was standing near the deceased with a dao in her hand and the said dao was bearing blood. He has also denied that he saw anything in the hand of the appellant while he saw her standing near the injured husband. He did not corroborate the evidence of PW 2 who deposed that the convict appellant was standing near the deceased with a dao in her hand and the said dao was bearing blood. The prosecution examined no other independent witness although, as per the evidence of PW 2, the town Habilder who visited the place of occurrence just after the incident, stated that a lot of people gathered at the place of occurrence. As per the evidence of PW 3, there were some other shops near me tailoring shop of the appellant but none of the shop owners situated near by the place of occurrence was cited as a witness in the charge sheet nor did the prosecution take any step to examine any other independent witness from the locality. Except the PW 3, all are official witnesses, most of them being staff of the Assam Police Battalion PW 1 is a related witness and he filed the FIR only after having come to know about the incident from others. As per his deposition, he did not visit the place of occurrence. His evidence is hearsay only and it bears no evidentiary value and significance. 10. On careful review of the evidence of prosecution witnesses, it is found that the evidence of PW 2 in regard to holding of a blood stained dao by the appellant standing nearby the deceased has not been supported by any witness. His evidence in this regard has not been supported by the fellow policemen PW 4, 5 and 6. PW 4 stated in his cross examination that he saw the dao in the police station and he was told by the Habilder (PW 2) that with the said dao the lady hacked the man. It can, therefore, be said that PW 4 did not see any dao in the hand of the appellant who was standing near the deceased. PW 5, another policeman came up with a different version. In his deposition, he stated that his colleague Chand Miyan picked up the dao which was lying near the bicycle and the said Chand Miyan handed over the dao to the Officer-In-charge of the Mazbat PS. PW 5, another policeman came up with a different version. In his deposition, he stated that his colleague Chand Miyan picked up the dao which was lying near the bicycle and the said Chand Miyan handed over the dao to the Officer-In-charge of the Mazbat PS. It can, therefore, be said that PW 5 also did not support the evidence of PW 2. PW 6, the third policeman, supported the evidence of PW 5 by saying that a curve dao was lying at a place where the injured was lying and he does not know who brought the seized dao to the police station. This leaves the evidence of PW 2 in regard to holding of a dao by the appellant uncorroborated by the evidence of above PWs. Such uncorroborated evidence of PW 2, in the eye of law, cannot be treated as a cogent and reliable one for the purpose of awarding conviction. We have noticed that the learned trial court, on the basis of evidence of PW 2, 3, 4, 5 and 6 came to a finding that the accused appellant was standing by the side of the injured Chandrakanta Nath armed with a dao and declared that she had finished the life of her husband. The learned trial court also treated and accepted the said evidence of PW 2 as an important circumstance from which the guilt of the appellant has been recorded as established without properly appreciating the evidence of PW 2, 4, 5 and 6. The learned trial court, in convicting the appellant, took into account the positive reply given by the appellant to a question under Section 313 CrPC whereby she was put the incriminating evidence of by PW 2 who deposed that the police battalion personnel on duty found her standing with a dao nearby the place where the deceased Chandrakanta Nath was lying in an injured State. Her reply was 'yes' and it has been accepted as an admission by her. But it is found that the appellant, in her statement under Section 313 CrPC, made some more significant statements to the effect that she herself went to the police station demanding justice for the death of her husband and she was never handed over by any member of was the police battalion. But it is found that the appellant, in her statement under Section 313 CrPC, made some more significant statements to the effect that she herself went to the police station demanding justice for the death of her husband and she was never handed over by any member of was the police battalion. She categorically denied explained that her husband was addicted to explained that her husband was addicted to drinks and opium, did not maintain the family and did not buy books for children rather he used to spend up the earnings for misdeeds for which he might have been killed by some persons involved in bad things. This explanation offered by the appellant was not taken into account and it was correctly done so by the trial court as no evidence was adduced by the defence to prove the same. If the statement/explanation of the appellant is dismissed for want of evidence, we are of the considered view that the uncorroborated evidence of PW 2 regarding presence of the convict appellant with a blood stained dao should also be dismissed and no conviction can be ordered against the appellant. 11. What is to be noted here is that one of the battalion personnel accompanying PW 2 snatched the dao from the hand of the appellant while she was standing nearby her injured husband. The said battalion personnel who snatched the dao is/was the best witness to prove the said fact but the prosecution made no attempt to examine the said battalion personnel. What is to be noted further is that PW 2 did not disclose the name of the battalion personnel who snatched the dao from the hand of the appellant. The other battalion personnel PW 4, 5 and 6 also did not depose before the court that any one of them snatched the crime weapon dao. It must be noted that the prosecution has held back an important witness who, according to prosecution, snatched the dao and thereby the prosecution failed to establish the vital fact that a member of the police battalion snatched the dao from the appellant. In other words, it can be said that none of the battalion members in fact snatched away the dao from the appellant's hand. In other words, it can be said that none of the battalion members in fact snatched away the dao from the appellant's hand. In the normal course, the prosecution should have examined the person who snatched the dao and should have sought corroboration with the evidence of PW 2 and his companion PW 4, 5 and 6. 12. Even if it is accepted that the dao was snatched from the hand of the appellant or it was seen being held by her in hand and the dao was seen with blood, the prosecution has taken no care to prove that the dao bore human blood stains inasmuch as the dao in question was not sent for forensic test and obtain a report on existence of human blood on the dao. The prosecution has no explanation why the dao in question was not sent for forensic test. Such a test and report from the FSL is an absolute necessity to prove that the dao was used for committing the alleged murder or assault on the deceased. The prosecution thereby failed to prove the primary fact that the dao in question was used for committing the crime. In our opinion, the prosecution, only after proving this preliminary fact, could have entered in the arena of proving the fact that it was none but the appellant who dealt the fatal assault by a dao on the deceased. We have already discussed above how the prosecution failed to prove the charge of committing the murder by the appellant. We are not prepared to hold the appellant guilty simply on the basis of some statements made by her during examination under Section 313 CrPC inasmuch as, in the eye of law, it is not treated as a substantive piece of evidence. In a number of cases it has been held that a fact or circumstance appearing to be incriminating in the prosecution evidence cannot be used by the Court for basing conviction without making any reference whatsoever to any statement made by any particular witness. One of the cases we would rely on in this regard is Basavaraj R. Patil & Ors. Vs. State of Karnataka & Ors. reported in (2000) 8 SCC 740 . Besides, we have found from record that the appellant has disowned her confessional statement made before the police. One of the cases we would rely on in this regard is Basavaraj R. Patil & Ors. Vs. State of Karnataka & Ors. reported in (2000) 8 SCC 740 . Besides, we have found from record that the appellant has disowned her confessional statement made before the police. Such unsupported and disowned confessional statement of the accused cannot be used for judging the appellant's guilt and it must be left out of consideration as per the law settled in M. Nageshwar Rao Vs. State of Andhra Pradesh reported in (2011) 2 SCC 188 . 13. In the present case the prosecution has no ocular evidence nor even a confessional statement acceptable under the law. There is no escape for the prosecution to prove the charge based on circumstantial evidence for want of ocular evidence. The prosecution, in the present case had only one circumstance against the appellant i.e. seizure of a dao near the place of occurrence. It is not proved that the dao in question was snatched from the hand of the accused or it was being held by her while she was standing nearby her husband who was lying on the ground in an injured state. There is no corroborated evidence on this fact. As discussed earlier, the dao was not even sent for chemical test to testify the contents of the human blood. Situated thus, it is difficult to hold that the aforesaid circumstances which have no evidentiary foundation, is sufficient for convicting the appellant. The circumstantial evidence as relied upon by the prosecution in the present case is not covered by the accepted normal principle as laid down in several cases particularly in Trimukh Maroti Kirkan Vs. State of Maharashtra reported in (2006) 10 SCC 681 ; wherein it is held that the circumstance from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistence with their innocence. In this regard law has been laid down in Geejaganda Somaiah Vs. In this regard law has been laid down in Geejaganda Somaiah Vs. State of Karnataka reported in AIR 2007 SC 1355 wherein it is held that where a case rests squarely on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the evidence of the accused and guilt of another person. Noticeably nothing of the said circumstances are found in the present case. The learned trial court has entertained the conjecture and suspicion as the basis for conviction on an assumed fact that the accused was holding a blood stained dao in her hand standing nearby the injured person in regard to which, as discussed earlier, witnesses have given different versions before the court. We have the case of Periyasami Vs. State of Madras reported in AIR 1967 SC 1027 wherein the Apex Court acquitted the convict on benefit of doubt. What we have seen in this case is that the learned trial court has allowed itself to treat the suspicion as legal proof which is not legally tenable under the established law. It is needless to cite the catena of decisions in this regard but it would be suffice to refer to the case of A. Jayaram & Anr. Vs. State of Andhra Pradesh reported in 1995 Supp (3) SCC 333. It is true that there is no absolute standard of proof in a criminal trial and the court should not nurture fanciful doubts by exaggerated devotion to the rule of benefit of doubt but in a case of circumstantial evidence all the links in the chain of events from which irresistible conclusion about the guilt of the accused for the offence alleged can be drawn, must be established beyond the pale of reasonable doubt. 14. Having considered the facts and circumstances and upon appraisal of the evidence available on record, we arrive at a conclusion that the prosecution has failed to prove the charge against the appellant beyond all reasonable doubts besides being callous in conducting the investigation and examining the vital witnesses warranting reversal of the impugned order of conviction and sentence to acquittal. The benefit of doubt, in our considered view, should be given to the appellant. The impugned judgment and order dated 10.5.2007 is hereby set aside and quashed. The appellant stands acquitted on benefit of doubt. The appeal is, thus, allowed. The benefit of doubt, in our considered view, should be given to the appellant. The impugned judgment and order dated 10.5.2007 is hereby set aside and quashed. The appellant stands acquitted on benefit of doubt. The appeal is, thus, allowed. The bail bond stands discharged. The appellant shall be set at liberty forthwith if her further detention is no longer required in connection with any other case. Let the Amicus Curiae be paid an amount of Rs. 5,000/- (Rupees five thousand) only as legal fee from the Assam State Legal Services Authority. Return the LCR forthwith. Appeal allowed.