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2012 DIGILAW 1272 (GAU)

Abala Rajbongshi v. State of Assam

2012-11-16

I.A.ANSARI, P.K.MUSAHARY

body2012
JUDGMENT I.A. Ansari, J. 1. What havoc liquor can create in a family and how liquor can disintegrate and destroy a family are reflected by the present appeal, which calls us to decide whether the accused appellant, namely, Smti. Abala Rajbongshi, had killed, along with her nephew, Krishna Rajbongshi (since absconder), her husband, Khitish Rajbongshi, and buried, with the help of the co-accused (who is an absconder), her husband's dead body so as to screen herself and her co-accused from being caught as offenders. This is an appeal against the judgment and order, dated 27.04.2007, passed, in Sessions Case No. 33 (DM) of 2005, whereby the learned Sessions Judge, Darrang, Mangaldoi, has convicted the accused-appellant under Sections 302 and 201 IPC and sentenced her, for her conviction under Section 302 IPC, to suffer imprisonment for life and pay fine of Rs. 5,000/- and, in default of payment of fine, undergo rigorous imprisonment for 6 (six) months and to suffer, for her conviction under Section 201 IPC, rigorous imprisonment for 3 (three) years with fine of Rs. 2,000/- and, in default of payment of fine, suffer rigorous imprisonment for three months, both the sentences having been directed to run concurrently. The prosecution's case, as unfolded at the trial, may, in brief, be described as follows:- Khitish Rajbongshi (since deceased) was the husband of accused-appellant, Abala Rajbongshi. They had altogether four daughters and one son, two of the daughters having been given in marriage and the remaining two daughters, including PW4, used to live, at the time of the alleged occurrence, with her parents and her younger brother, who was around 10/11 years old. On the occasion of Bohag Bihu, a feast was arranged at the house of PW2 (Dibakar Rajbongshi), nephew of Khitish Rajbongshi (since deceased). To the feast so organized, the said deceased and his family had also been invited. However, on that day at night, Khitish came home in drunken state and, under the influence of liquor, started quarreling with his wife, Abala. Following the quarrel, Khitish assaulted his wife, Abala, so severely that she fell unconscious. Though the children of the couple raised hue and cry, the same had no effect on Khitish. After a little while, Krishna (since absconder), nephew of the said deceased, came and took away, along with him, Khitish and since then, Khitish was not seen. Following the quarrel, Khitish assaulted his wife, Abala, so severely that she fell unconscious. Though the children of the couple raised hue and cry, the same had no effect on Khitish. After a little while, Krishna (since absconder), nephew of the said deceased, came and took away, along with him, Khitish and since then, Khitish was not seen. Later on, the present appellant, Abala, lodged information with the police that her husband had disappeared. However, in course of time, Krishna happens to make a confession before his cousin, PW2, that he had killed Khitish and asked PW2 not to disclose the information to anyone. On coming to learn that his brother, Khitish, had been killed, his brother, Paresh Rajbongshi, lodged, on 10.05.2003, a written information, at Dimakuchi Police Outpost, alleging, inter alia, that he had come to learn on that very day (i.e., on 10.05.2003) that Abala and Krishna had conspired and killed Khitish and kept his dead body buried in the garden area at the backside of their house. Treating the said written information as First Information Report (in short, FIR), Paneri Police Station Case No. 40 of 2003, under Sections 302/201/34 IPC, was registered against the two accused persons, namely, Abala and Krishna. During the course of investigation, police questioned Abala and Krishna and they allegedly informed the police, in the presence of the members of the public, that they had killed Khitish and kept his dead body buried in the garden area and, on being led by them, dead body of Khitish, in decomposed state, was recovered from the backside of the house of deceased Khitish. Inquest was held over the said dead body, which was also subjected to post mortem examination. On a hoe having been produced by accused Krishna and on an axe having been produced by accused Abala, the same were seized and, on completion of investigation, police laid charge sheet, under Sections 302/201/34 IPC, against the present appellant, Abala, and her co-accused, Krishna. 2. After submission of the charge sheet, accused Krishna absconded. The trial, therefore, commenced against the present accused-appellant At the trial, when charges, under Sections 302 and 201 read with Section 34 IPC, were framed, the accused-appellant pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 7 (seven) witnesses. The accused-appellant was, then, examined under Section 313 Cr. The trial, therefore, commenced against the present accused-appellant At the trial, when charges, under Sections 302 and 201 read with Section 34 IPC, were framed, the accused-appellant pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 7 (seven) witnesses. The accused-appellant was, then, examined under Section 313 Cr. PC and, in her examination aforementioned, the accused-appellant denied that she had committed the offences, which were alleged to have been committed by her, the case of the defence being that of denial. No evidence was adduced by the defence. 4. Having, however, found the accused, Abala, guilty of the offences, which she had been charged with, the learned trial Court convicted her accordingly and passed sentences against her as mentioned above, Aggrieved by her conviction and the sentences passed against her, the accused, Abala; who faced the trial, as indicated above, has preferred this appeal. 5. We have heard Mr. MH Choudhury, learned Amicus Curiae, and Mr. D Das, learned Additional Public Prosecutor, Assam. 6. Considering the nature of evidence, which stand adduced, as against the accused-appellant, at the trial, we deem it appropriate to consider, first, while determining the merit of this appeal, the evidence of PW4, daughter of the said deceased, Khitish, before we enter into the discussion of the evidence of other witnesses. 7. The evidence of PW4 is to the effect that on the day of occurrence, which was the day, when a feast had been organized at the house of PW2, a quarrel took place between her mother and father inasmuch as her father, on coming home, created noisy scene under the influence of liquor and started assaulting her mother. 8. It is in the evidence of PW4 that as a result of assault by her father, her mother (i.e., the accused-appellant) fell unconscious, whereupon she (PW4) and other children raised hue and cry and their cousin, Pran Gobinda (not examined at the trial) came and they (children) told him about the quarrel and though Pran Gobinda left for the house of Dibakar (PW2), Dibakar (PW2) did not come to the house of deceased Khitish, but after a while, Krishna (since absconder) came and took away with him Khitish and it was, thereafter, that the accused-appellant, Abala, according to the evidence of PW4, regained her senses and all of them, then, went to bed. 9. 9. It is also in the evidence of PW4 that her father did not return home at night and, on the following day, when she met Krishna, she asked him as to where her father was and ' Krishna replied by saying that he was not aware as to where her father, Khitish, had gone. 10. The evidence of PW4, which we have reproduced above, was not assailed by prosecution. Even the defence did not dispute the correctness and/or veracity of the evidence given by PW4. Thus, the evidence of PW4 remained wholly unshaken and intact. We, therefore, see no reason to either disbelieve ' or discard her evidence and her evidence clearly shows that it was accused Krishna, who was last seen with Khitish inasmuch as Krishna had taken away with him Khitish, while the present appellant was still lying unconscious as a result of having been beaten by her husband, Khitish. 11. Bearing in mind the above evidence on record, we, now, turn to the evidence of PW2 (Dibakar). We notice that in his evidence, PW2, nephew of Khitish, has deposed that accused Krishna was his cousin and that Khitish had been missing before his dead body was recovered and, later on, Krishna told him (PW2) that he (Krishna) and Abala had together killed Khitish and buried his dead body in the land of Khitish. Notwithstanding the evidence, so given, by PW2, the further evidence of PW2 is that Krishna killed Khitish with an axe and he (Krishna), then, together with Abala, buried Khitish by digging a pit and that Abala and Krishna dragged the dead body from the place, where they had committed the murder, and that Krishna had asked him (pw2) not to divulge to anyone what he (Krishna) had told him (PW2), but he (PW2) informed Paresh (i.e., the informant) about what Krishna had told and he also informed their gaoburha (PW3) in this regard. It is in the evidence of PW2 that when gaoburha, Beni Madhab (PW3), and Paresh interrogated Abala and Krishna, they confessed to have killed together Khitish, and that in the presence of police, magistrate and public, Krishna produced the dead body from the place, where Krishna had buried the said dead body. In his cross-examination, PW2 has, once again, deposed that after killing with the axe, Krishna had buried the dead body. 12. In his cross-examination, PW2 has, once again, deposed that after killing with the axe, Krishna had buried the dead body. 12. While considering the evidence of P W2, it is important to note that the evidence of PW2 is inconsistent and incoherent inasmuch as he has deposed, at one place, that Krishna told him (PW2) that Krishna had killed Khitish with axe and, then, Krishna, together with Abala, buried the dead body by digging a pit. However, at another place, P W2 has claimed that Krishna told him that he (Krishna) and Abala together had killed Khitish and buried his dead body. 13. Thus, the evidence, given by PW2, implicating the accused-appellant, being inconsistent and incoherent, cannot be safely relied upon. This apart, as far as the confession, alleged to have been made by the appellant and Krishna to gaoburha (PW3) and Paresh, is concerned, it is worth noticing that confessions, which were extra-judicial in nature, had been allegedly made by the two accused pursuant to the interrogation of the two accused. When on interrogation, a person makes a confession, it is the bounden duty of the prosecution to prove that notwithstanding the fact that the confession was elicited by interrogation of the accused, the confession was nevertheless voluntary. In this regard, nothing has been brought on record by the prosecution and there is no even a particle of evidence to show that the confessions, which had allegedly been made by the appellant and Krishna, were voluntary. Situated thus, we do not consider if sufficiently safe to rely on the evidence of PW2. 14. Coming to the evidence of gaoburha, Beni Madhab (PW3), we notice that according to him, a couple of days of lodging of the information, with the police, by the appellant, Abala, regarding disappearances of her husband, he, Khitish's elder brother, Paresh, came to his house and told him that accused Krishna had caused the murder of Khitish, whereupon he (PW3) came to the house of Khitish, some other leading persons of the area, too, arrived there and when they interrogated Krishna, Krishna confessed to have committed the murder and when he was asked about the hoe, Krishna stated that he had hidden the hoe and the axe and Abala produced the hoe and Krishna produced the axe, which were seized by the police. When scrutinized minutely, the evidence of PW3 clearly shows that it was Krishna, who had confessed to have committed the murder. There is nothing, in the evidence of PW3, to show that the present appellant, too, made any confession. This apart, as already mentioned above, when a confession is elicited from an accused by way of interrogation, it is the bounden duty of the prosecution to prove that notwithstanding the fact that confession has been elicited by resorting to interrogation, the confession is voluntary. At any rate, the evidence of PW3 implicates Krishna alone in the murder and not the present appellant. As far as the appellant is concerned, she is only implicated by PW3 in the act of hiding the axe, because it is the appellant, who had allegedly produced the hoe, which had been used by her co-accused. 15. We, now, turn to the evidence of PW1. This whiteness's evidence is that when police and army personnel, along with gaoburha (PW3) and some other co-villagers, went to the house of the accused and questioned accused Abala and accused Krishna, they told the police that they had killed Khitish and had buried his dead body, 16. Considering the fact that the evidence of PW1 shows that the alleged confessions had been made by the two accused before the police, the confession, having not been made to the police in the immediate presence of magistrate, is inadmissible in evidence and ought to have been kept excluded by the learned trial Court from the purview of its consideration. 17. We may, at this state, pause to point out that the doctor (PW5) had, admittedly, performed, on 11.05,2003, post mortem examination, on the dead body of Khitish, and found fracture of both his forearm bones and frontal bones. In the opinion of the doctor (PW5), the death was caused to shock and haemorrhage resulting from the injuries, which the said deceased had sustained. The medical evidence on record, which has not been disputed by the defence, shows that the death of Khitish was homicidal in nature. 18. In the opinion of the doctor (PW5), the death was caused to shock and haemorrhage resulting from the injuries, which the said deceased had sustained. The medical evidence on record, which has not been disputed by the defence, shows that the death of Khitish was homicidal in nature. 18. As far as PW6, a co-villager of the accused-appellant, is concerned, his evidence is that he became suspicious on disappearance of Khitish and he (PW6), along with Dibakar (PW2), started keeping vigil on Abala and one day, Dibakar (P W2) told him (PW6) that Krishna had told him (PW2) that he (Krishna), along with accused Abala, killed Khitish for some monetary gain. The evidence, so given by PW6, is clearly hearsay inasmuch as PW2 has, nowhere, deposed that he had reported to PW6 that he had been told by Krishna that Khitish had been killed by him (accused Krishna) and Abala for some monetary gain. In fact, PW2 has not even claimed that Khitish had been killed for monetary gain, 19. Because of what have been pointed out above, we do not find that PW6 is worthy of any credit and we find his evidence wholly untrustworthy and unreliable. 20. Coming to the evidence of PW7, we may point out that he was not the investigating officer in whose presence the said dead body had been recovered and, hence, his evidence does not much help the prosecution's case. 21. What emerges from the discussion of the evidence on record, as a whole, is that Khitish had beaten, on the day of the occurrence, his wife, Abala (i.e., the present appellant) under the influence of liquor so severely that she fainted and while Abala was still lying unconscious, accused Krishna came and took away Khitish and since then Khitish had not been seen alive. It has also emerged from the evidence on record that the present appellant regained her senses sometime after her husband, Khitish, had already been taken away by accused Krishna. 22. In the face of the evidence of PW4, which we have already discussed above and in the light of the other evidence on record, there is really no credible and reliable evidence, adduced by the prosecution, which could make the Court, confidently and boldly, hold that the accused-appellant, Abala, had caused death of her husband, Khitish, either alone or in furtherance of common intention with the co-accused, Krishna. The only evidence, as against the accused-appellant, is that she had produced the axe, which is alleged to be the weapon of offence. However, the said axe cannot be treated to have been proved as the weapon of offence inasmuch as the said axe was not put to any chemical examination and there is no cogent evidence on record to show that the said axe was, in fact, the weapon of offence. 23. For the reason, which we have assigned above, we do not find that the prosecution had been able to prove its case, beyond reasonable doubt, against the present accused-appellant and the accused-appellant ought to have been held, in these circum-stances, not guilty of the offences, which she was charged with. 24. Because of what have been discussed and pointed out above, this appeal succeeds. The conviction of the accused-appellant and the sentences, passed against her by the judgment and order under appeal, are hereby set aside. The accused-appellant is held not guilty of the offences, which she stood charged with and she is acquitted of the same. 25. Let the accused-appellant be set at liberty, forthwith, unless she is required to be detained in connection with any other case. 26. Let the learned amicus curiae be paid a sum of Rs. 5,000/- for her valuable assistance rendered to the Court. Send back the LCR.