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2013 DIGILAW 315 (GAU)

Mahadev Chauhan v. State of Assam

2013-05-16

I.A.ANSARI, P.MUSAHARY

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. This is an appeal against the judgment and order dated 23.3.2012 passed by the learned Sessions Judge, Udalguri convicting the appellants under Section 342 and 302 read with Section 34 IPC and sentencing each of them, for their conviction under Section 342 IPC read with Section 34 IPC for simple imprisonment for one year and also sentencing each of them, for their conviction under Section 302 IPC read with Section 34 IPC, imprisonment for life and pay fine of Rs. 1 lac, and in default of payment of fine to undergo simple imprisonment for another period of one year. The prosecution case briefly stated is thus:- Gopal Chauhan (since deceased) was the son of Parmeshwar Chauhan, who tried to take away forcibly the daughter of Mahadev Chauhan, Rita. On 22.11.2004, Gopal Chauhan went to the house of accused Mahadev Chauhan to take away Rita. However, the accused appellants caught hold of Gopal Chauhan and beat him mercilessly to death at the courtyard of the house of accused Mahadev Chauhan. While Mahadev Chauhan was proceeding towards Kalaigaon Police Station, he happened to meet ASI of Police Rajabuddin Ahmed (PW-8) at Singrimari where the said police officer had the case of some law and order problem. Mahadev Chauhan informed P.W. 8 that he had detained Gopal Chauhan by fastening him with the help of rope and kept him in his house. After discharging his responsibility at Singrimari Tea Estate, P.W. 8 arrived at the house of accused Mahadev Chauhan and found the dead body of Gopal Chauhan lying at the courtyard of the house of accused Mahadev Chauhan. Having found the said dead body with multiple injuries, PW-8 informed PW-9, who was functioning at the relevant point of time as Officer-in-Charge of Kalaigaon Police Station, about the fact that Gopal Chauhan's dead body had been found lying at the house of accused Mahadev Chauhan. Having received the information as mentioned herein before, PW-9 made an Entry in General Diary (Ext. 3) and went to the house of the accused Mahadev Chauhan, where PW-9 held inquest over the dead body, and also subjected it to post mortem examination. In course of time, on completion of investigation, a charge-sheet was laid. Meanwhile, however, Sri Sugrib Chauhan lodged the written ejahar (Ext. 3) and went to the house of the accused Mahadev Chauhan, where PW-9 held inquest over the dead body, and also subjected it to post mortem examination. In course of time, on completion of investigation, a charge-sheet was laid. Meanwhile, however, Sri Sugrib Chauhan lodged the written ejahar (Ext. 1) at the said police station and treating the same as the First Information Report, Kalaigaon Police Station Case No. 142/04 was registered under Sections 302/34 IPC against the accused appellants whose names appeared in the said written ejahar as assailants of the said deceased. 2. Having completed the investigation, Investigating Officer (PW-9) submitted charge-sheet, under Section 302/34 IPC, against the present accused-appellants. 3. At the trial, when charges under Sections 342 and 302 read with Section 34 IPC were framed against the accused appellants, all of them pleaded not guilty thereto. 4. In support of their case prosecution examined altogether 9 witness. The accused appellants were then examined under Section 313 Cr. P.C. and in their examination aforementioned, the accused denied that they have committed the offence. While so denying their guilt all the accused took the plea of alibi. In support of their plea, the defence too adduced evidence of examining two witnesses including the accused Mahadev Chauhan. 5. Having found all the accused guilty of the offences, to which they were charged with, the learned trial Court convicted and sentenced them as mentioned above. Aggrieved by the orders of conviction and sentence, which have been passed against them, the accused have preferred this appeal. 6. We have heard Mr. B.M. Choudhury, learned counsel for the appellants and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam. 7. While considering the present appeal it needs to be noted, at the very out set, that the Doctor, PW-7 who had conducted the post mortem examination on 23.1.04 on the dead body of Gopal Chauhan, found as follows: (i) Lacerated injury 3 c.m. x 2 c.m. over the right parietal region of the scalp. (ii) Swelling of both elbow joints. (iii) Swelling of both tibial region. (iv) Lacerated injury 2 c.m. x 1 c.m. over the right wrist joint area. (v) Left parital bone was found fractured and depressed into the brain. Blood clot over the base of the skull. (ii) Swelling of both elbow joints. (iii) Swelling of both tibial region. (iv) Lacerated injury 2 c.m. x 1 c.m. over the right wrist joint area. (v) Left parital bone was found fractured and depressed into the brain. Blood clot over the base of the skull. (vi) Membrane over the parietal lobe of the brain was fowl lacerated (vii) Parietal lobe of the brain was found lacerated over an area of 1 c.m. x 1 c.m. with blood (sic). It is in the evidence of doctor (PW-7) injuries were ante mortem in nature caused by blunt object. The Doctor (PW-7) has opined that the injured died of shock as a result of the injury caused to his brain. In cross examination, Doctor (PW-7) has clarified that except the brain injury, no other injury was fetal. 8. The finding of the Doctor and his opinion with regard to the nature of injuries found on the dead body of Gopal Chauhan, the nature of weapon used and the cause of death are not in dispute at the trial. Nor are the same in dispute in this appeal. From the undisputed findings and opinion of the Doctor (PW-7), there can be no escape from the conclusion that Gopal Chauhan sustained multiple injuries caused by blunt object and his death was homicidal in nature. The question, however, remains if the accused-appellant does not take the responsibility, then who had caused Gopal Chauhan's death? However, answer to the above question could be found from, the evidence of PW-1, who has deposed that his house is situated at a distance of three furlong from the house of Mahadev Chauhan. In no uncertain words, PW-1 has deposed that he had not seen the occurrence himself and that he came to know about the occurrence from their village headman, (PW-3), who had informed that Gopal Chauhan had been killed by the accused persons who were appellants in this appeal. 9. Bearing in mind the evidence of PW 1 and PW-3, village headman, according to whom Gopal Chauhan had been killed by the accused-appellants, we noticed that PW-3 has, nowhere, deposed that he informed PW-1 that Gopal Chauhan had been killed by the accused. 9. Bearing in mind the evidence of PW 1 and PW-3, village headman, according to whom Gopal Chauhan had been killed by the accused-appellants, we noticed that PW-3 has, nowhere, deposed that he informed PW-1 that Gopal Chauhan had been killed by the accused. The evidence of PW-1, that he had been told by PW-3 that the accused had killed Gopal Chauhan, is not trustworthy and therefore, the evidence of PW-1, is to be excluded from the purview of our consideration. 10. What is further noticeable from the evidence of PW-3 is that the accused persons admitted to him their guilt that they had killed Gopal Chauhan because Gopal Chauhan wanted to take away forcibly the daughter of Mahadev Chauhan, namely, Reeta Devi. We may promptly point out, in this regard, that the Investigating Officer has confirmed that no such statement was made by PW-3, when his statement was recorded during investigation. 11. Situated thus, it is clear that PW-3 has made substantial improvement on his previous statement made before the police and in absence of any explanation offered in this regard or discernible from the evidence on record, we have no other option, but to treat the evidence of PW-3 as wholly unreliable. 12. So far PW-2 is concerned, he was declared hostile by the prosecution and though he has been cross-examined by the prosecution, there is no substantive evidence given by PW-2, which can be said to have incriminated the accused appellants. 13. So far as PW-4 is concerned, it can be pointed out from his cross-examination that he has admitted that he did not witness the occurrence. Even the evidence of PW-5 does not improve the prosecution's case inasmuch as he had merely seen the dead body of Gopal Chauhan lying at the courtyard of the accused Mahadev Chauhan. 14. When we come to the evidence of PW-6, we find that he has uttered, in the examination-in-chief, that he had seen the accused persons dragging Gopal Chauhan to the house of accused Mahadev Chauhan and though he wanted to intervene, the accused persons intimidated him and he saw the accused assaulting Gopal Chauhan by hammer and lathi. Even with regard to this witness, the Investigating Officer has confirmed that PW-6 did not state in his previous statement recorded during investigation, that he had seen the accused assaulting Gopal Chauhan. Even with regard to this witness, the Investigating Officer has confirmed that PW-6 did not state in his previous statement recorded during investigation, that he had seen the accused assaulting Gopal Chauhan. Thus, even the evidence of PW-6 does not help the prosecution in proving its case. 15. So far as PW-8 is concerned, he has deposed that on the day of occurrence, when he was on a visit to Singrimari Tea Estate in connection with law and order duty, Mahadev Chauhan reached there and told him that he had detained Gopal Chauhan by fastening him with a rope. PW-8, after concluding his investigating duty at Singrimari Tea Estate, went to the house of Mahadev Chauhan, where he found the dead body of Gopal Chauhan lying. 16. What emerges from the above discussion is that there is no eye witness to the occurrence of assault on, and killing of, Gopal Chauhan. The learned trial Court too, has recorded in the impugned judgment that there is no eye witness to the occurrence. The conviction of the accused-appellants is, however, based on circumstantial evidence. The question, therefore, is whether the circumstantial evidence, in the present case, was sufficient to prove the guilt of the accused appellants. 17. While dealing with the question posed above, it needs to be pointed out that except the fact that Gopal Chauhan's dead body was found lying at the courtyard of accused Mahadev Chauhan and the fact that Mahadev Chauhan had himself informed the Investigating Officer that Gopal Chauhan had been kept detained by fastening, there is no evidence to show as to who had assaulted and lolled Gopal Chauhan. The learned trial Court appears to have shifted the burden of proving the innocence to the accused-appellants, rather than, demanding the prosecution to prove its case beyond reasonable doubt Regarding the plea of alibi, since the accused-appellants had taken such a plea, it was the duty of the learned trial Court to come to a finding that the presence of the accused-appellants at the time of assault on Gopal Chauhan had been proved beyond any shadow of doubt. In this regard, however, there is no iota of credible evidence on record to show that all the accused-appellants were present in the courtyard of accused appellant Mahadev Chauhan, when Gopal Chauhan was assaulted and killed. 18. In this regard, however, there is no iota of credible evidence on record to show that all the accused-appellants were present in the courtyard of accused appellant Mahadev Chauhan, when Gopal Chauhan was assaulted and killed. 18. Because of the fact that accused-appellant, Mahadev Chauhan, had reported to the Investigating Officer that he had detained Gopal Chauhan (deceased) by tying him by means of a rope, it was suspected that accused-appellant, Mahadev Chauhan, was involved in the alleged killing of Gopal Chauhan. Suspicion, however grave, cannot take the place of proof. There is nothing to show from the evidence on record that the accused-appellant, Mahadev Chauhan, was present in his courtyard at the time, when Gopal Chauhan was put to death. 19. Because of what has been discussed and pointed out above, we are of the considered view that the evidence on record was wholly insufficient to hold the accused-appellants guilty of the offence charged with. Their conviction, therefore, cannot be sustained. 20. In the result and for the reasons discussed above, this appeal succeeds. The impugned conviction of the appellants and the sentences passed against them by the judgment and order under appeal are hereby set aside. The accused-appellants are held not guilty of the offences which they stand convicted of and they are acquitted on benefit of doubt. 21. Let the accused-appellants be set at liberty unless they are required to be detained in connection with any other case. Send back the LCR.