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2012 DIGILAW 1281 (GAU)

Suren Kalita v. State of Assam

2012-11-20

I.A.ANSARI, P.K.MUSAHARY

body2012
JUDGMENT I.A. Ansari, J. 1. This appeal is directed against the judgment and order, dated 03.04.2007, passed, in Sessions Case No. 291(K) 2004, by the learned Sessions Judge, Kamrup, Guwahati, convicting the accused-appellants, Suren Kalita and Lakshyadhar kalita @ Niladhar kalita, under Section 302 read with Section 34 IPC and sentencing each of them to suffer imprisonment for life and pay fine of Rs. 3,000/- and, in default of payment of fine, suffer rigorous imprisonment for a period of one year. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 09.04.2001, at about, 8:45 P.M., as many 6 (six) persons, namely, Suren Kalita, Niladhar kalita, Bipul Kalita, Girish Kalita, Parameswar Kalita and Pamani Kalita, attacked, in a group, Bipin Kalita's nephew, Deepak Kalita, at the house of Girish Kalita, by lethal weapons causing injuries. The FIR, the injured was, immediately, removed to Hajo Police Station, wherefrom the injured was taken to Hajo Primary Health Centre, where he was declared dead. Bipin Kalita, then, lodged a First Information Report (in short, 'FIR'), on 09.04.2001 itself, at Hajo Police Station. Based on the said FIR, Hajo Police Station Case No. 66/2001, under Section 147/148/149/302 IPC, was registered. 2. Thereafter, police visited the place of occurrence, held inquest over the dead body, examined the witnesses and, on completion of investigation, laid charge-sheet, under Section 302/34 IPC, against the two accused (i.e., the present accused-appellants), named in the FIR, namely, Suren Kalita and Lakshyadhar Kalita @ Niladhar Kalita. 3. At the trial, when a charge, under Section 302 read with Section 34 IPC, was framed against the accused persons, they pleaded not guilty thereto. 4. In support of their case, prosecution examined as many as 10 (ten) witnesses. The accused persons were, then, examined under Section 313 CrPC and, in their examinations aforementioned, they denied that they had committed the offence, which was alleged to have been committed by them, the case of the defence being that of denial. No evidence was adduced by the defence. 5. Having, however, found the accused persons guilty of the offence, which they had stood charged with, learned trial Court convicted them accordingly and passed sentence against them as mentioned above. 6. We have heard Ms. S. K. Nargis, learned counsel for the accused-appellants. We have also heard Mr. K. A. Majumdar, learned Additional Public Prosecutor, Assam. 7. 5. Having, however, found the accused persons guilty of the offence, which they had stood charged with, learned trial Court convicted them accordingly and passed sentence against them as mentioned above. 6. We have heard Ms. S. K. Nargis, learned counsel for the accused-appellants. We have also heard Mr. K. A. Majumdar, learned Additional Public Prosecutor, Assam. 7. Let us, first, commence the determination of the merit of the present appeal by taking into account the evidence of the informant, Bipin Kalita (PW 1) and determine the veracity of this evidence. According to this witness, deceased Deepak Kalita was his nephew and both the accused persons are his neighbours and that Deepak was having a love affair with Hiramoni Kalita, sister of accused Lakshyadhar Kalita, for the last 2/3 years. The further evidence of PW 1 is that, on the day of the occurrence, at about 8:00 P.M., when Deepak (since deceased) was watching television at his (PW 1's) house, accused Niladhar's mother, Bimala Kalita, called away Deepak and, about 10 minutes thereafter, he (PW 1) heard someone scolding in anger outside his house, whereupon he (PW 1), his son, Balen Kalita (PW 2), one Surat Kalita (PW 3) and one Dhiren Kalita (PW 5), went to the place of occurrence and saw accused Suren Kalita hitting Deepak on his shoulder by means of a spade and Deepak falling on the ground and, then, accused Suren hit Deepak also on his face by the said spade and accused Niladhar stabbed Deepak into the abdomen with a spear-like weapon and, on Deepak's having cried out, the accused persons fled away. 8. It is noteworthy that it is in the evidence of PW 1 that after the accused persons had fled away, their neighbour, Niranjan Sarma, shouted to bring water and cloth and, then, they, immediately, took the injured to Hajo Police Station and, from there, to a nearby hospital, where the doctor declared Deepak dead. It is also in the evidence of PW 1 that the occurrence took place at the courtyard of Girish Kalita. 9. It is the further evidence of PW 1 that they brought the dead body back to the police station and, in the meanwhile, both the accused persons surrendered at the police station and that inquest was held on the said dead body at the police station and the inquest report (Ext. 9. It is the further evidence of PW 1 that they brought the dead body back to the police station and, in the meanwhile, both the accused persons surrendered at the police station and that inquest was held on the said dead body at the police station and the inquest report (Ext. 1) was prepared, he lodged Ejahar (Ext. 2), the Ejahar having been written by Jagat Medhi. 10. PW 1 has deposed that, while he was at the police station, he learnt that both the accused had led the police to the place of occurrence and, while he (PW 1) was still at the police station, he found both the accused bringing the spear and the spade, which the accused had used in the said occurrence. PW 1 has also deposed that besides Balen Kalita (PW 1), Surat Kalita (PW 3) and Dhiren Kalita (PW 5) had witnessed the occurrence. 11. What is, now, important to note is that in his cross-examination, PW 1 has admitted that the relation between the accused-persons' family members, on the one hand, and Deepak (since deceased), on the other, was not good, because of an affair, which Deepak had been carrying out with the said Hiramoni. PW 1 has also admitted, in his cross-examination, that he mentioned, in his Ejahar, that as many as 6 (six) persons were accused by him of having assaulted Deepak, but he has clarified that except the two accused-appellants, Suren and Niladhar, all other persons, named in the FIR, were standing at the place of occurrence. He (PW 1) has further admitted, in his cross-examination, that he did not mention, in his Ejahar, that accused Suren had hit Deepak with spade and accused Niladhar had injured Deepak with spear. 12. It is of paramount importance to note that PW 1 has denied that he had not stated before the police that accused Suren had injured Deepak with a spade and accused Niladhar had stabbed Deepak with a spear-like weapon. However, the Investigating Officer (PW 9) has confirmed that that PW 1 had not stated before him that the two accused, namely, Suren Kalita and Niladhar Kalita, along with Bipul Kalita, Girish Kalita, Parameswar Kalita and Pamani Kalita had assaulted Deepak Kalita by means of spade and spear. 13. However, the Investigating Officer (PW 9) has confirmed that that PW 1 had not stated before him that the two accused, namely, Suren Kalita and Niladhar Kalita, along with Bipul Kalita, Girish Kalita, Parameswar Kalita and Pamani Kalita had assaulted Deepak Kalita by means of spade and spear. 13. Broadly in tune with the evidence of PW 1, PW 2 (Balen Kalita) has stated that Deepak was his father's elder brother's son and, on the day of the occurrence, at about 8:20 P.M., when he (PW 2), along with Deepak, was watching television at his (PW 2's) house, accused Niladhar's mother, Bimala alias Pamoli Kalita, called away Deepak and, after about 10 minutes, they heard raving and ranting at Girish Kalita's courtyard, whereupon PW 1, Suren Kalita and he (PW 2) went there and saw accused, Suren Kalita, hacking Deepak on his neck by means of a spade and Deepak falling down and Suren, then, gave a blow with the spade on the facial area of Deepak and accused Niladhar stabbed Deepak on his abdomen. It is in the evidence of PW 2 that they were all nervous and, in the meanwhile, Niranjan Sarma came there and asked them to bring water and, then, they took the injured to police station and, from there, to nearby primary health centre, where Deepak was declared dead, and, thereafter, they brought the dead body to the police station. It is also in the evidence of PW 2 that the accused persons surrendered at the police station, where PW 2 and others were already present, and, then, police took both the accused persons and him (PW 2) to the place of occurrence, police seized the spade from under a granary on being shown by the accused, Suren, and police also seized a spear as shown by the accused from a abandoned house. 14. Though denied by this witness (PW 2), the Investigating Officer (PW 9) has confirmed that PW 2 had stated before him that he (PW 2) had seen the accused persons, along with others, fleeing from the place of occurrence with the weapons of offence. 15. 14. Though denied by this witness (PW 2), the Investigating Officer (PW 9) has confirmed that PW 2 had stated before him that he (PW 2) had seen the accused persons, along with others, fleeing from the place of occurrence with the weapons of offence. 15. As for as PW 3 (Surat Kalita), is concerned, his evidence is in tune with the evidence of PW 2, but the Investigating Officer has confirmed that PW 3, too, had stated, during investigation, that he (PW 3) had seen both the accused, along with others, fleeing away. 16. From a minute scrutiny of the evidence of PW 1, PW 2 and PW 3, it becomes more than abundantly clear that though they had projected themselves, at the trial, as eyewitnesses to the alleged occurrence, their previous statements, made to the police, gave no indication at all that they had witnessed the occurrence of assault on Deepak by the present two accused-appellants. In fact, the FIR (Ext. 2), which has been lodged by PW 1, accuses not only the two accused-appellants, but also four other persons and their family members to have attacked Deepak and caused grievous injuries on him. This apart, in the FIR, which PW 1 (who has claimed to be an eye-witness) has lodged, it has been clearly mentioned that PW 1, PW 2, PW 3 and their family members were informed by their neighbours, who had witnessed the occurrence. The disclosure, which was so made in the FIR, thus, completely belies the version of the occurrence as depicted by PW 1, PW 2 and PW 3. To put it a little differently, the FIR, which was the first disclosure to the police, did not depict PW 1, PW 2 and PW 3 as eyewitnesses to the occurrence; rather, these witnesses claimed to have been informed about the occurrence by their neighbours. Furthermore, the previous statements, made to the police by PW 1, PW 2 and PW 3, clearly indicate that they had not witnessed the occurrence, but had merely seen the accused running away from the place of occurrence. 17. Coupled with the above, if has also surfaced from the evidence of PW 1, PW 2 and PW 3 that one of their neighbours, namely, Niranjan, was also present at, or had come to, the place of occurrence. 17. Coupled with the above, if has also surfaced from the evidence of PW 1, PW 2 and PW 3 that one of their neighbours, namely, Niranjan, was also present at, or had come to, the place of occurrence. However, this independent witness (Niranjan Das) was not examined and non-examination of this witness constraints this Court to draw an inference, adverse to the prosecution, the inference being that had this independent witness been examined, his evidence would have not supported the evidence of PW 1, PW 2 and PW 3 and, that is why, Niranjan Das was not examined as a witness. 18. So far as PW 4 is concerned, his evidence is to the effect that he has a pharmacy in front of Hajo Hospital and, on the day of the occurrence, at about 8:00/8:30 P.M., while he was present at his pharmacy, the injured was brought to the hospital, many people gathered there and he, too, went there to have a look and saw the injured person with an injury on the forehead and about half-an-hour thereafter, the injured died and, in the meanwhile, he heard that the persons, who had inflicted injury, had surrendered and he went to the police station to have a look of the persons, but he saw only one person. This witness, however, could not say as to who was the person, whom he (PW 4) had seen at the police station. 19. In his cross-examination, PW 4 has clearly stated that the police had beaten the accused persons. It is also in the evidence of PW 4 that the police took him and an accused person to the place of occurrence and police seized a spade and a spear and obtained his (PW 4) signatures on seizure lists, Ext. 3 and 4 being the seizure lists and Ext. 3(1) and 4(1) being his signatures. It is to be noted, in this regard, that it is abundantly clear from the evidence of PW 4 that he neither saw any recovery of any of the said weapons or the seizure thereof. Thus, the evidence of PW 4 does not advance the case of the prosecution. 20. 3(1) and 4(1) being his signatures. It is to be noted, in this regard, that it is abundantly clear from the evidence of PW 4 that he neither saw any recovery of any of the said weapons or the seizure thereof. Thus, the evidence of PW 4 does not advance the case of the prosecution. 20. Turning to the evidence of PW 5, we notice that, according to this witness (Dhiren Kalita), cousin of the deceased, Deepak Kalita, on the night of the occurrence, he was watching television at the house of PW 1 and that Balen Kalita (PW 2) and Surat Kalita (PW 3) were also there. While they were so watching the television, accused Niladhar's mother, Pamoli Kalita, called Deepak away and, about 15 minutes thereafter, he heard hue and cry outside that Deepak had died, whereupon they all went to Girish Kalita's courtyard, where Deepak was found lying injured and he saw Suren Kalita running away with a spade in his hand and that he also saw accused Leeladhar fleeing away. It is also in the evidence of PW 5 that the injured was taken to Hajo Police Station where from the police sent the injured to Hajo Primary Health Centre for treatment, but the injured was declared dead and, then, the dead body was brought back to the police station and, at the police station, he came to know that, in the meanwhile, the police had arrested the accused. 21. What is, now, important to note is that, according to PW 5, both the accused had told the police that they had assaulted Deepak with spade, stabbed him with spear and killed him and that both the accused took the police to the house of Girish Kalita, showed the police the place of occurrence, accused Suren Kalita produced a spade from a granary, police seized the same, accused Niladhar took out a spear from an abandoned house of Girish Kalita and handed over the spear to the police, Ext. 4 being the Seizure list in respect of the seizure of the spear and Ext. 3 being the Seizure list in respect of the seizure of the spade. 22. 4 being the Seizure list in respect of the seizure of the spear and Ext. 3 being the Seizure list in respect of the seizure of the spade. 22. In his cross-examination, PW 5 has admitted that, at the time of the occurrence, a rehearsal for Bihu dance was in progress at Girish Kalita's house on the occasion of Bihu festival, but this witness denied that Deepak had gone there and that when he (Deepak) was at Girish Kalita' house, the members of the public had beaten him. 23. It is important to note that neither the spear nor the spade, which had been seized by the police, was sent for serological test and there is no evidence to show that these were the weapons of offence. This apart, though PW 4 is a witness to the seizure, he has clearly stated that the police had beaten the accused persons and that he was merely asked to sign on the said seizure lists. 24. As far as PW 6 is concerned, his evidence is not of much importance inasmuch as he has merely deposed that around four years back the Officer-in-Charge, Hajo Police Station called him and showed him two persons at the police station, who stated before the police that they had killed one person. PW 6 has clearly deposed that he does not know the two accused persons. This witness has further deposed that the two accused persons, accompanied by the police and PW 6, went to the village and showed one spade and one spear and, accordingly, those materials were seized by the police, which are Ext. 4 and Ext. 3. 25. From the evidence of PW 4 and PW 3, it is clear that the seizure list was prepared at the police station inasmuch as the PW 4 and PW 6 did not even know the place from where the recovery of the said two weapons had been made and whether any of the accused-appellants had helped in the recovery of the seized weapons. In such circumstances, the seizure of the said two weapons cannot be safely relied upon as seizure having been made pursuant to the production of the weapons by the two accused persons. 26. In such circumstances, the seizure of the said two weapons cannot be safely relied upon as seizure having been made pursuant to the production of the weapons by the two accused persons. 26. The evidence of PW 7, who is also a witness of the said seizure, does not improve the case of the prosecution at all inasmuch as he also has stated that when he, accompanied by one Bakul Kalita, was returning home from attending Puja, they were called to the police station by the Officer-in-Charge, Hajo Police Station, and they saw there a dead body and two persons and, thereafter, the police took the accused persons to their house and accused Suren Kalita produced a spade and the other accused produced a spear and they all came back to the police station. Police, then, seized the spade and the spear and his (PW 7's) signature was obtained on the seizure lists, i.e., Ext. 3 and Ext. 4. In fact, in his cross-examination, PW 7 stated that he did not know as to what had been written in Ext. 3 and Ext. 4. 27. Coming to the medical evidence on record, we find that according to the evidence of the doctor (PW 8), who, admittedly, performed the post mortem examination on the dead body of Deepak Kalita, on 10.04.2001, found as follows : 1. One incised wound, 11 cm X 2 cm X bone deep over the right side of the face obliquely placed, extending from outer border of the right eyebrow up to the middle of upper lip. The underlying bones viz. right supraor-bital ridge, part of the orbit, maxilla were incised partly. He right eyeball was missing. The Ala (lower part of right side of nose) was also incised partly. 2. One incised wound, 8 cm X 4 cm X 4 cm deep on back of head and upper part of neck slightly obliquely placed, having beveling at the upper margin with skin, muscles and 3rd cervical vertebra partially incised. 3. One incised wound 2 cm X 1 cm X scalp deep present on the right side of forehead 1 cm above the right eye-brow and 1 cm right to midline placed transversely. 4. One incised wound 3 cm X 1 cm X muscle deep on the front of the neck 8 cm above the suprasternal notch on the midline, transversely placed. 5. 4. One incised wound 3 cm X 1 cm X muscle deep on the front of the neck 8 cm above the suprasternal notch on the midline, transversely placed. 5. Incised wound 2 cm X 1 cm X muscle deep on right side of chest 15 cm below suprasternal notch, 1 cm right to midline. 6. Incised wound 1 cm X 0.5 cm X muscle deep on epigastrium of abdomen on midline. 7. Incised wound 1 cm X 0.5 cm X muscle deep on upper part of abdomen 5 cm left to injury No. 6. 8. Incised would 1 cm X 1.5 cm X muscle deep on right side of upper abdomen, 1 cm right to midline and 7 cm above umbilicus, placed obliquely. All other organs were found healthy and pale. Both lungs were healthy and pale. Heart was healthy and chambers were empty. Stomach was healthy and pale containing about 50 grams of clotted blood. Brain was healthy and pale. Liver was lacerated with injury 3 cm X 0.5 cm on the diaphragmatic surface of right lobe. Organs of generation were healthy and pale. Opinion: Death was due to shock and haemorrhage resulting from the injuries described in the report. All injuries were ante mortem and caused by heavy, sharp-cutting weapon and homicidal in nature. Approximate time since death was in between 12 to 24 hours. 28. In the opinion of the doctor (PW 8), death was due to shock and haemorrhage resulting from the injuries described above, all the injuries being ante mortem and homicidal in nature and the same were caused by heavy sharp-cutting weapon. 29. From the medical evidence on record, though it is clear that Deepak had been assaulted, injured and killed, the evidence of the persons, who have been examined as eye-witnesses, do not, for the reasons which we have discussed above, inspire confidence. 29. From the medical evidence on record, though it is clear that Deepak had been assaulted, injured and killed, the evidence of the persons, who have been examined as eye-witnesses, do not, for the reasons which we have discussed above, inspire confidence. It appears to have escaped the attention of the learned trial Court that the previous statements of these witnesses were wholly inconsistent with their evidence given in the Court and that even the contents of the FIR bely the evidence given by PW 1, PW 2, PW 3 and PW 5, who are all members of the same family, more particularly, when we notice that the FIR clearly stated that the family members of Deepak were informed by the neighbours about the occurrence, but none of the neighbours, including Niranjan Das, has been examined. Coupled with this, the recovery of the alleged weapons, at the instance of the accused, has also not been convincingly proved as there is no evidence to show that these weapons were used in causing the injuries on the person of the said deceased inasmuch as these weapons, as already indicated above, were not put to serological test. 30. What crystallizes from the above discussion is that the evidence, relied upon by the learned trial Court, was grossly inadequate and wholly unsafe to place reliance upon to found conviction of the accused-appellants out of the six accused named in the FIR. 31. Situated thus, we are of the considered view that the evidence, adduced by the prosecution, was not adequate to confidently and boldly hold that the accused-appellants were the ones, who had assaulted Deepak and caused his death. In the light of such a nature of evidence on record, the learned trial Court could not have convicted the accused-appellants and the accused-appellants ought to have, therefore, given, at least, benefit of doubt. The conviction of the accused-appellants and the sentences, passed against them, cannot, therefore, be sustained. 32. Because of what have been discussed and pointed out above, this appeal succeeds. The impugned judgment and order, dated 03.04.2007, aforementioned shall accordingly stand set aside. The accused-appellants are hereby held not guilty of the offence charged with and they are acquitted of the same under benefit of doubt. 33. With the above observations and directions, this appeal stands disposed of. Send back the LCR.