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2012 DIGILAW 602 (GAU)

Jiten Bhumij v. State of Assam

2012-05-21

A.C.UPADHYAY, I.A.ANSARI

body2012
JUDGMENT I.A. Ansari and A.C. Upadhyay, JJ. 1. This appeal is directed against the judgment and order, dated 08-12-2005, passed by the learned 2nd Additional Sessions Judge, Sivasagar, in Sessions Case No. 83 (S-C) of 2005, whereby the present appellant stands convicted under Section 302, IPC and sentenced to suffer imprisonment for life and pay fine of Rs. 2,000/- and, in default of payment of fine, suffer rigorous imprisonment for four months. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: On 13-02-2005, at about 8 pm, Paban Bhumij (since deceased) came to the house of PW 2 and sought to sleep there and, on being permitted by PW 2, Paban slept at the house of PW 2. A short while thereafter, accused Jiten Bhumij came to the said house and hacked Paban Bhumij to death by assaulting him with a dao. Having killed Paban, accused Jiten Bhumij came back to his house and told his father, Budhu Bhumij, that he had come after cutting a man and, on being asked by PW 4, in whose presence, the accused is claimed to have reported to his father, that he had come after cutting a man, the accused told PW 4 that he had come after cutting Paban at the house of PW 4, whereupon PW 4, taking along with him the younger brother of accused Banta, went to his house and found Paban lying dead there. PW 4, then, informed their VDP Secretary (PW 1), who, in turn, informed the police by lodging an ejahar, in this regard, which is Ext. 2. During investigation, police visited the place of occurrence, held inquest over the said dead body, seized the dao by which the accused had allegedly killed Paban and, on completion of investigation, laid charge sheet against the accused under Section 302, IPC. 2. When a charge under Section 302, IPC was framed against the accused at the trial, he pleaded not guilty thereto. 3. In support of their case, prosecution examined as many as 7 (seven) witnesses. 2. When a charge under Section 302, IPC was framed against the accused at the trial, he pleaded not guilty thereto. 3. In support of their case, prosecution examined as many as 7 (seven) witnesses. This was followed by examination of the accused under Section 313, Cr PC, wherein he denied that he had committed the offence, which he was accused to have committed, his case being that of total denial and of his having been falsely implicated by PW 4, his defence being as the dead body of Paban had been found at the house of PW 4, PW 4 has, in order to escape punishment, falsely implicated him (accused). No evidence was, however, adduced by the defence. 4. Having found the accused guilty of the offence charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused has preferred this appeal. 5. While considering the present appeal, it needs to be noted, at the very outset, that PW 2, mother of PW 4, was examined as an eye witness to the alleged occurrence of assault of killing of Paban by the accused-appellant. The evidence of PW 4 is, therefore, extremely important. Her evidence, in the examination-in-chief, is to the effect that on the day of the occurrence, at about 7/8 pm, Paban came to his house and sought to sleep there and, on being permitted by her, Paban slept there, but a short while thereafter, accused Jiten came and dealt some blows on Paban. It is in the evidence of PW 2 that having seen the accused assaulting Paban, she felt scared and did not return home at night and when, on the following day, in the morning, she returned home, she found Paban's dead body inside the house. 6. What is extremely important to note, in the evidence of PW 2, is that in her cross-examination, she has clearly admitted that she cannot see well at night and, at the sight of the appearance of the man, who had injured Paban, she thought that the man was Jiten, i.e., the accused-appellant. 6. What is extremely important to note, in the evidence of PW 2, is that in her cross-examination, she has clearly admitted that she cannot see well at night and, at the sight of the appearance of the man, who had injured Paban, she thought that the man was Jiten, i.e., the accused-appellant. Thus, when PW 2 herself was not confident that the man, who had hacked Paban, was accused Jiten, it is wholly unsafe to rely or depend on the evidence of PW 2 to hold that it was the accused, who had hacked Paban to death. The learned trial Court could not have, therefore, taken the unsafe evidence of PW 2 as a basis for founding conviction of the accused thereof. 7. Close on the heels of the evidence of PW 2, PW 4, whose house became the place of occurrence, as mentioned above, has deposed that on the night of the occurrence, he was watching TV at the house of Budu Bhumij, father of accused Jiten Bhumij, and when he was so watching the TV, the accused came there and told his father that he had come after cutting a man. It is also in the evidence of PW 4 that upon being asked, the accused told him (PW 4) that he had come after cutting Paban at the house of PW 4, whereupon PW 4, taking along with him Bantu, younger brother of the accused, went to his house and found Paban lying in a pool of blood. PW 4 has also deposed that he went to the house of their VDP Secretary, i.e., PW 1 and told him that Jiten had cut Paban. 8. What is, now, necessary to note is that PW 4 is the person in whose house Paban's dead body was found. His evidence, therefore, requires a microscopic examination and the Court has to be fully confident that his evidence can be implicitly relied upon. In this regard, one cannot avoid noticing that in the cross-examination, PW 4 has admitted that at the time, when he was watching TV, others, such as, Manua Bhumij, Bantu Bhumij, Ganesh Bhumij and Budu Bhumij were also present. In this regard, one cannot avoid noticing that in the cross-examination, PW 4 has admitted that at the time, when he was watching TV, others, such as, Manua Bhumij, Bantu Bhumij, Ganesh Bhumij and Budu Bhumij were also present. Though it was the duty of the investigating officer to find out, during the course of investigation itself, if there was any other person present at the time, when PW 4 claimed to have been watching TV at the house of Budu Bhumij (PW 3), no such thing was, unfortunately, done by the investigating officer and, above all, even when the names of Manua Bhumij, Bantu Bhumij, Ganesh Bhumij and Budu Bhumij appeared, in the cross-examination of PW 4 as material witness, police neither carried out any further investigation by examining the said persons nor were they called to give their evidence by the prosecution. 9. In the circumstances, as indicated above, the conviction of the accused-appellant, depending entirely on the evidence of PW 4, is too unsafe and ought not to have been done. 10. There is no dispute, as can be clearly seen from the evidence of the doctor (PW 6), that Paban had sustained homicidal injuries resulting into his death inasmuch as the doctor (PW 6) has deposed that he performed post mortem examination on the dead body of Paban Bhumij on 15-02-2005, at about 3 pm, and found as follows: Male around 29 yrs, Rigor mortis present. Injuries No. 1-4 incised transverse wound were left temporo occipital area of scalp with fracture of under lying occipital bone. (2) 4" x 1/2" transverse incised wound over left shoulder, muscle deep. (3) 2" x 1/2" incised wound over lower lip right side. 4. Multiple incised wound over upper cervical region neck. Upper cervical vertebrae transacted over about 7 incise wound seen over the area incising under lying muscle cervical vertebrae and spinal cord. One of the neck wound extends to the left side of face and left pinna of ear incise. Cranium and spinal canal - Spinal cord transacted upper cervical vertebrae level between cervical 3 and cervical 4 4. Abdomen-All organs healthy. Thorax-All organs healthy. Muscles bones and joints - Fracture occipital bone of scalp. Fracture cervical 3 and 4 vertebrae. 11. One of the neck wound extends to the left side of face and left pinna of ear incise. Cranium and spinal canal - Spinal cord transacted upper cervical vertebrae level between cervical 3 and cervical 4 4. Abdomen-All organs healthy. Thorax-All organs healthy. Muscles bones and joints - Fracture occipital bone of scalp. Fracture cervical 3 and 4 vertebrae. 11. PW 6 has opined that the wounds were ante mortem in nature and that the said deceased met with death, because of the coma, which resulted from the injuries sustained, the injuries having been caused by dao, which is M. Ext. 1, and that the Injury No. 4 was independently sufficient to cause death of a person in ordinary course of nature. 12. From the injuries, which had been found on the dead body of Paban, there can be no escape from the conclusion, as we have already pointed out above, that he had been injured and killed. What we must hasten to add is that there is nothing in the evidence on record to show that M. Ext. 1 was the weapon of offence. In such circumstances, even if one finds that M. Ext. 1 was seized from the possession of the accused, such a seizure would not prove, and cannot be taken to have proved, that the accused-appellant had killed Paban. 13. Because of what have been discussed and pointed out above, we do not find that the prosecution has been able to adduce sufficient, cogent and clinching evidence proving that it was none, but the accused-appellant, who had hacked Paban to death. In such circumstances, the accused-appellant ought to have been given, in our considered view, at least, benefit of doubt. 14. In the result and for the reasons discussed above, this appeal succeeds. The impugned judgment and order convicting the accused-appellant stand hereby set aside. The accused-appellant is held not guilty of the charge framed against him and he is acquitted of the same under benefit of doubt. 15. The accused-appellant be set at liberty forthwith unless he is required to be detained in connection with any other case. 16. With the above observations and directions, this criminal appeal shall stand disposed of. 17. Send back the LCR. The Amicus Curiae shall be paid a sum of Rs. 3,500/-.