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2012 DIGILAW 946 (GAU)

Raja Das v. State of Assam

2012-08-08

C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. In Sessions Case No.53/06, which has given rise to this appeal, the learned Sessions Judge, Karimganj, convicted the appellant, namely, Raja Das, who is the son of the deceased, has been convicted under Section 302 of the Indian Penal Code (IPC) and sentenced to suffer Rigorous Imprisonment for life, for causing the death of his mother. Gaya Das (since deceased), husband of the deceased and father of the appellant lodged an F.I.R. on 22.01.2006, alleging that, on the night of 21.01.2006, at about 11 PM, when his wife, namely, Smti Sabita Das (deceased) was sleeping in her room with her elder daughter Smti Rekha Das (PW-5), his son i.e. the appellant entered the room of his mother, picked up a quarrel with her, in connection with demand of money and thereafter, he (appellant) inflicted dao blows on her neck causing her death. 2. On receipt of the said FIR, Police registered a case under Section 302 IPC and launched investigation into the matter. During the investigation, Police visited the place of occurrence, examined the witnesses, prepared Inquest Report (Ext. 3) in respect of the deadbody, prepared a sketch map (Ex. 5) of the place of occurrence, seized a dao, vide seizure list (Ext.2) on being handed over by the informant and forwarded the deadbody for post-mortem examination. Concluding the investigation, Police submitted the charge-sheet under Section 302 IPC, against the appellant. 3. The offence being exclusively triable by the Court of Session, the case was committed and the learned Sessions Judge framed charge under Section 302 IPC and read over and explained the same to the accused, to which he pleaded guilty. In order to prove their case, prosecution examined as many as 7 (Seven) witnesses, including the Medical Officer (PW-2), who perform the post-mortem examination and the Investigating Police Officer (PW-7). 4. At the close of the evidence for the prosecution, the accused was examined under Section 313 Cr.P.C. He denied the allegations brought against him and pleaded not guilty. No defence evidence was adduced. 5. 4. At the close of the evidence for the prosecution, the accused was examined under Section 313 Cr.P.C. He denied the allegations brought against him and pleaded not guilty. No defence evidence was adduced. 5. Considering the evidence, on record, the learned trial Judge, relying on the statement of the witnesses, more particularly the statement of PWs-4,5 and 6, made before the Investigation Officer, seizure of the dao from the informant and the statement made in the FIR by the informant, who was the father of the appellant and also considering the conduct of the appellant that he had absconded immediately after the death of his mother, the learned Sessions Judge come to the conclusion that the accused had given the fatal blows on his mother (deceased), thereby causing her death thereafter and left the place, throwing away the weapon. 6. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come with this appeal. 7. We have heard Mrs. R.D. Mazumdar, learned Amicus Curiae, appearing for the appellant and Mr. D. Das, learned Additional Public Prosecutor. The learned Amicus Curiae, taking us through the evidence, on record, more particularly, evidence of the non official witnesses i.e. PWs-2, 3 and 4, has submitted that none of the said witnesses supported the prosecution version that the appellant had caused the death of his mother. It is also submitted that the PWs-5 & 6, who were the daughters of the deceased and PW-4, who was known to the deceased were declared hostile by the prosecution and that no incriminating evidence could be elicited from their cross-examination, made by the prosecution. 8. It is also submitted, by the learned Amicus Curiae that the learned Sessions Judge committed error by accepting the statement, made in the FIR, as substantive evidence, without examining the informant, who expired after submitting the FIR. 9. In view of the above, the learned Amicus Curiae has submitted that the prosecution failed to establish the case, beyond all reasonable doubt, against the accused (appellant) and as such he is entitled to be acquitted and set at liberty. 10. Controverting the said argument, advanced by the learned Amicus Curiae, Mr. D. Das, learned Additional Public Prosecutor, has submitted that, in the FIR i.e. the Ext. 10. Controverting the said argument, advanced by the learned Amicus Curiae, Mr. D. Das, learned Additional Public Prosecutor, has submitted that, in the FIR i.e. the Ext. 1, the husband of the deceased i.e. the father of the appellant, clearly stated that the appellant had caused death of his mother by inflicting dao blow on her neck. It is also submitted that, due to death of the informant, he could not be examined in this case, but the scribe of the FIR (PW-1), who had written the FIR, on being dictated by the informant aforesaid, stated that he had written the same as per dictation of the informant and that the said scribe exhibited the FIR as Ext. 1 and the signature of the informant as Ext. 1(1). The learned Additional Public Prosecutor, in view of the said evidence of the PW-1 aforesaid, submitted that the contents of the F.I.R. indicated that the appellant had committed the said crime. 11. It is also contended by the learned Additional Public Prosecutor that the appellant, after committing the said crime fled the place, after throwing away the incriminating weapon and that, the same was seized by the Investigating Officer, on being produced by the informant. 12. In view of above evidence, on record, the learned Additional Public Prosecutor has submitted that the learned trial Court committed no error by recording the conviction and sentence and as such the same does not warrant any interference. 13. Dr. Swapan Kr. Sen, who performed the autopsy of the deadbody deposing as PW-2 stated that he found the following injuries on the deadbody: There was one incised wound about 6" long in the anterior neck and also extending both lateral sides in the middle cutting the adjoining vessels, muscles, trachea and pharynx. The said Medical Officer opined that the injury was anti-mortem and the cause of death was shocked and hemorrhage resulting from the injuries aforesaid. 14. From the FIR i.e. Ext. 1, it is found that the deceased succumbed to the injuries sustained by her on the previous night i.e. on 21.01.2006. The evidence given by the said Medical Officer remained unchallenged. Therefore, there is no dispute that the deceased died due to the injuries, sustained by her, on her neck. Now, the question is as to whether the appellant had caused the said fetal injury. 15. The evidence given by the said Medical Officer remained unchallenged. Therefore, there is no dispute that the deceased died due to the injuries, sustained by her, on her neck. Now, the question is as to whether the appellant had caused the said fetal injury. 15. Having heard the learned Counsel, appearing for both the parties and considering the evidence on record, it is found that, as stated in the FIR, the deceased, prior to the alleged attack, was sleeping in a room with her daughter Smti Rekha Das (PW-5). Therefore, Smti Rekha Das was the star witness of this case. 16. PW-6, who was another daughter of the deceased, was also present in the same house at the time of offence. In the FIR, the content of which has been taken by the learned Sessions Judge, as the basis for conviction, the informant appears to have stated that his son i.e. the appellant had inflicted a dao blow on the neck of the deceased and thereafter, he left the house, after throwing away the said dao. As the informant has already expired, he could not be examined. In the absence of the informant, the defence could not avail the opportunity of cross-examining the informant, to disprove or contradict the statement, made in the F.I.R. Hence, the statement made in the FIR can not be used against the accused. 17. Sri Narayan Das, who claimed to have written the FIR, on being dictated by the informant, exhibiting the FIR, stated that the same was written as per the direction of the informant and that, Ext. 1(1) was the signature of the informant. 18. Law is well settled that the FIR, lodged in a case, can not be substantive evidence. The same can be used for corroborating or contradicting the maker of the same. Therefore, no conviction can be based on the basis of the statement, made in the FIR. 19. Though the Investigation Officer seized a dao, vide seizure list (Ext. 2), on being produced by the informant, the same has not been exhibited in the Court to substantiate the seizure. That apart, the seized dao was not sent to Forensic Laboratory for chemical examination. As held by the Supreme Court, in the case of S.K. Yusuf -Vs. 19. Though the Investigation Officer seized a dao, vide seizure list (Ext. 2), on being produced by the informant, the same has not been exhibited in the Court to substantiate the seizure. That apart, the seized dao was not sent to Forensic Laboratory for chemical examination. As held by the Supreme Court, in the case of S.K. Yusuf -Vs. - State of West Bengal, failure to chemically examine the dao is fatal, for the reason that the said circumstantial evidence may not lead to the only irresistible conclusion that the seized dao was used by the perpetrator of the crime. In the absence of any material evidence to show that the same was used for causing the death of the deceased, simple seizure of the dao from the possession of the informant can not be sufficient to hold that the same was used by the appellant for causing the death of the deceased. 20. As discussed earlier, PW-5 was sleeping along with her deceased mother in the same room, but the PW-5, in her evidence, stated that she did not know as to how their mother met with her death. 21. In tune of the evidence of PW-5, Smti Munmi Das, another daughter of the deceased, deposing as PW-6, stated that the FIR was lodged by their father, in connection with the death of their mother. Further, she also stated that she neither saw the occurrence nor did she know as to how her mother died. Both PW-5 and PW-6 were declared hostile and cross-examined by the prosecution. But no incriminating evidence could be brought out against the appellant. 22. As both PW Nos. 5 & 6, being daughters of the deceased, were members of the same family, they could have certainly known about the involvement of the appellant, if he had caused the death of their mother, but the silence of the said two vital witnesses regarding involvement of the appellant belies the prosecution version that the appellant had caused the death of his mother. 23. Shri Krishna Das, who deposed as PW-4 also failed to support the prosecution version that the appellant had caused death of the deceased in connection with demand of Rs. 50/-. This witness was declared hostile and cross-examined by the prosecution, but no material evidence could be elicited to implicate the appellant. 24. 23. Shri Krishna Das, who deposed as PW-4 also failed to support the prosecution version that the appellant had caused death of the deceased in connection with demand of Rs. 50/-. This witness was declared hostile and cross-examined by the prosecution, but no material evidence could be elicited to implicate the appellant. 24. Shri Subhash Das, deposing as PW-3, stated that the informant i.e. father of the appellant had told the Police that his son had killed his wife. He was a witness to the seizure of the dao. He denied the suggestion, made on behalf of the defence, that the informant Late Gaya Das did not tell the Police that the appellant had killed his mother. But the Investigating Officer, who deposed as PW-7, did not say that the informant had told him that the appellant had killed his mother. Therefore, we find no force in the said evidence of PW-3, for want of corroboration. 25. In view of the above discussion, considering entire aspect of the matter, we find that except the statement made in the FIR, lodged by the informant, who could not be examined due to his death, there is no other evidence to believe that the appellant had caused death of the deceased. We have already observed that the said statement, made in the FIR, can not be treated as substantive and reliable evidence to base the conviction. 26. It is the settled principle of criminal jurisprudence that, in a criminal trial, the prosecution is required to prove the case beyond all reasonable doubt. 27. In view of the above, we find that the prosecution failed to adduce substantive and cogent evidence to establish that the appellant had caused the death of the deceased. Therefore, we have no hesitation in holding that the prosecution failed to prove the case against the appellant, beyond all reasonable doubt. Hence, we find sufficient merit in this appeal requiring interference with the impugned conviction and sentence. Accordingly, the impugned conviction and sentence aforesaid are set aside. The appellant is acquitted and set at liberty henceforth, if not required in any other case. 28. We acknowledge the assistance rendered by Mrs. R.D. Mazumdar, learned Amicus Curiae and direct that an amount of Rs. 5,000/- be paid to her as her remuneration, by the Assam State Legal Services Authority. Return the LCR.