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2012 DIGILAW 492 (GAU)

Aghnu Gowala v. State of Assam

2012-04-20

ADARSH KUMAR GOEL, C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 22.12.2003, passed by the learned Sessions Judge, Sonitpur, in Sessions Case No. 47/2003. By the impugned judgment and order, the learned Sessions Judge, held the appellant guilty of the offence under Section 302 Indian Penal Code (hereinafter referred to as the IPC) and sentenced him to suffer imprisonment for life and pay a fine of Rs. 1,000/-, in default suffer rigorous imprisonment for another period of thirty days. Aggrieved by the said conviction and sentence, the convict, as appellant, has come up with this appeal. We have heard Mr. M. Biswas, learned Amicus Curiae appearing for the appellant and Mr. K. Mazumdar, learned Additional Public Prosecutor, for the State of Assam. 2. The prosecution case, as revealed at the trial, is that, on 27.2.2002, at about 5.30 P.M., the appellant killed Smt. Kali Majhi, (hereinafter called the deceased) wife of Mr. Mohan Majhi with a dao. The husband of the deceased, as informant, lodged an FIR with the Police, on the next date, which was registered as Dhekiajuli PS. Case No. 72/2002 under section 302. After receipt of the said FIR, Police registered a case and launched investigation into the matter. During the investigation, Police visited the place of occurrence, conducted the inquest report of the dead body, forwarded the dead body for post mortem examination, seized a blood stained dao on being produced by the appellant and a blood stained chaadar, recorded the statement of the witnesses and arrested the appellant. At the close of the investigation, Police submitted charge sheet against the appellant under Section 302 IPC. 3. The offence being exclusively triable by the Court of Sessions, the learned Additional Chief Judicial Magistrate, Sonitpur, committed the case to the Court of Sessions. The learned Sessions Judge, framed charge under section 302 IPC. The charge was read over and explained to the accused person and they pleaded not guilty. 4. In order to prove their case, prosecution examined, as many as, twelve witnesses, including the Investigating Police Officers (PW 10 and PW 12) and the Medical Officer (PW 2), who performed the autopsy. PW 1, PW 3 and PW 10 are none official witnesses, who have been examined in support of the prosecution case. At the close of the evidence for the prosecution, the accused person was examined under section 313 Cr. PW 1, PW 3 and PW 10 are none official witnesses, who have been examined in support of the prosecution case. At the close of the evidence for the prosecution, the accused person was examined under section 313 Cr. P.C. He denied the allegations brought against him and declined to adduce defence evidence. 5. Considering the evidence on record, the learned Sessions Judge, held the appellant guilty of the offence and accordingly convicted and sentenced him, as indicated above. 6. Mr. M. Biswas, learned amicus curiae, appearing for the appellant, referring to the evidence, on record, has submitted that, in the present case, there is no substantive evidence against the appellant and that the prosecution failed to establish beyond all reasonable doubt that the appellant had caused the death of the deceased. The learned Amicus Curiae has also submitted that the appellant is entitled to be acquitted and set at liberty. 7. The learned Additional Public Prosecutor, supporting the impugned judgment and order has submitted that the learned Sessions Judge, considering the material evidence on record, rightly came to the conclusion that the appellant had caused the death of the deceased and as such the impugned conviction and sentence is not liable to be interfered with. 8. Dr. Shiba Prasad Bordoloi (PW 2), who performed the autopsy of the deadbody, found the following injuries:- One 7 inches long deep horizontal cut over left side of fact, ear, head and neck involving approximately 3 inches deep. The brain matters on left side ruptured. The great vessels of neck (left side) have been severed by the cut. Profused blood clots around the wound." He opined that the injuries were ante-mortem in nature, caused by sharp weapon and that death was due to profuse haemorrhage from the cut injuries, sustained by the deceased. From the above medical evidence, which remained uncontroverted, it has been established that the deceased died on the previous day due to cut injuries, inflicted on her, with a sharp cutting weapon i.e. dao. The prosecution version is that death of the deceased was caused by inflicting cut injuries with a dao by the appellant. 9. Shri Kandra Majhi (PW 1), is the brother in-law of the deceased. He stated that he heard from the people that the appellant had killed the deceased. He found the deadbody, lying in a field, near the house of the deceased. 9. Shri Kandra Majhi (PW 1), is the brother in-law of the deceased. He stated that he heard from the people that the appellant had killed the deceased. He found the deadbody, lying in a field, near the house of the deceased. From the evidence of PW 1, it appears that he did not see the incident himself. However, he stated that, on the same day, he heard that the mother of the appellant was killed by Bijoy. Bijoy is the appellant in Criminal Appeal No. 22(J)/2004. 10. Smt. Suhagi Gore (PW 3) stated that she did not know about the incident. This witness was declared hostile and cross-examined by the prosecution, but nothing could be elicited against the appellant. 11. Smt. Budhni Das (PW 4), who was also declared hostile and cross-examined by the prosecution, did not state anything incriminating against the appellant. She denied the suggestion that she had stated before the Police that the appellant had inflicted dao blows on the deceased. 12. Sri Hiren Das (PW 5), stated that he did not know as to who had caused the death of the deceased. 13. Shri Mohan Majhi (PW 6), husband of the deceased, stated that, as he was not available in the village, on the fateful day, he did not know as to who had killed his wife. He stated that he came to know that the appellant had assaulted his wife with a dao resulting her death. In his cross-examination, this witness admitted that a case was pending against his son Bijoy (appellant in Criminal Appeal No. 22(J)/2004), on the charge of killing the mother of the present appellant. 14. Sri Sukra Gore (PW 7) stated that he did not see the incident. He further stated that on being asked, he accompanied the Police and found the dead body of the deceased. 15. Shri Prasanna Kumar Kalita, Sr. Scientific Officer of Forensic Science Laboratory deposed as PW 8. He examined a blood stained dao and a piece of clothe and came to the findings that the said articles contained human blood of Group 'AB'. He has exhibited the reports as Exhibit A. The said report does not indicate that the blood group found in the dao and piece of cloth aforesaid was the blood group of the deceased. 16. Smt. Deepali Gore (PW 9) was declared hostile and cross examined by the Police. He has exhibited the reports as Exhibit A. The said report does not indicate that the blood group found in the dao and piece of cloth aforesaid was the blood group of the deceased. 16. Smt. Deepali Gore (PW 9) was declared hostile and cross examined by the Police. She stated that, at the time of occurrence, she was busy with her duty in the garden. She denied the suggestion put to her that she had stated before the Police that she saw the appellant assaulting the deceased. 17. Smt. Mamoni Gowala (PW 10) stated that she did not see the incident except finding the dead body of the deceased. 18. PW 11 is the Investigating Officer who investigated into the matter. PW 12 is another Investigating Officer, who submitted the charge sheet. The said two Investigating Officers had no personal knowledge about the incident. From the above discussed evidence, rendered by the prosecution witnesses, more particularly PW 1, PW 3 to PW 10, no incriminating material could be found against the appellant. The learned Sessions Judge while holding the appellant guilty, came to the findings that the appellant stated before the Police (PW 11) that he had murdered the deceased and that the appellant killed the deceased taking revenge for the murder of his mother, by the deceased's son namely Bijoy. Statement or confession alleged to be made before the Investigating Officer, by an accused, cannot be accepted as evidence except to the disclosure leading to the discovery of fact. Therefore, the confession, if any, made by an accused before the Police is hit by the provision of sections 25 and 26 of the Indian Evidence Act. In our considered opinion, the learned Sessions Judge committed error by accepting the confession made by the appellant before PW 11, as legal evidence. There is no dispute that the mother of the appellant died due to homicidal death. The son of the deceased, who is appellant in Criminal Appeal No. 22(J)/2004, has also been convicted by the learned Trial Judge, on the charge of killing the mother of the appellant Similarly, the present appellant has also been convicted by the Trial Court on the charge of killing the mother of the appellant of Criminal Appeal No. 22(J)/2004. The son of the deceased, who is appellant in Criminal Appeal No. 22(J)/2004, has also been convicted by the learned Trial Judge, on the charge of killing the mother of the appellant Similarly, the present appellant has also been convicted by the Trial Court on the charge of killing the mother of the appellant of Criminal Appeal No. 22(J)/2004. In view of the said cross murders, though suspicion can be raised indicating that the present appellant, out of grudge and in order to take revenge of killing his mother had killed the mother of the appellant of Criminal Appeal No. 22(J)/2004. But suspicion, how so ever high, cannot be substitute of legal and substantive evidence. In order to hold a person guilty of a charge, prosecution is required to establish the case, beyond all reasonable doubt by adducing cogent and substantive evidence. Failure to do so would result in acquittal of the accused person on benefit of doubt. In view of the above discussion, in the present case, the prosecution has failed to establish, beyond all reasonable doubt, that the appellant had inflicted the fatal blows on the deceased. Therefore, we find sufficient merit in the appeal requiring interference. Accordingly, the appeal is allowed. The impugned conviction and sentence is set aside. The appellant be set at liberty forthwith. In appreciation of the assistance rendered by the learned Amicus Curiae, we direct payment of Rs. 5,000/- in his favour by the Assam State Legal Services Authority as his remuneration. Return the lower Court records. Appeal allowed.