Research › Search › Judgment

Gauhati High Court · body

2013 DIGILAW 348 (GAU)

Chitpal Munda v. State of Assam

2013-05-27

B.K.SHARMA, L.S.JAMIR

body2013
JUDGMENT B.K. Sharma, J. 1. This appeal is directed against the judgment dated 17/05/2008 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 96(JJ)2005 convicting the accused appellant under Section 302 IPC and sentencing him to undergo imprisonment for life with fine of Rs. 5,000/- and in default RI for 3 (three) months. The prosecution case is that one Dawood Munda and his wife Samari Munda were issueless and accordingly the accused appellant, the son of his brother-in-law was kept in their house as adopted son. On 31.5.2005 when Samari Munda came home at about 11 pm from a rehearsal of a play, she discovered her husband lying in a pool of blood. The accused appellant was found absconding. FIR dated 1.6.2005 was lodged by her, on the basis of which Teok PS case No. 42/2005 was registered under Section 302 IPC. After completion of the investigation, the police submitted charge sheet on the basis of which charge against the accused appellant was framed under Section 302 IPC. During trial, the prosecution examined 10 witnesses and the defence examined none. However, the statement of the accused appellant was recorded under Section 313 Cr.P.C., during which he denied commission of the offence. 2. The impugned judgment of conviction is on the basis of the circumstantial evidence as there is no eye witness to the occurrence. The circumstantial evidence on which the learned trial court has placed reliance is that the accused appellant was in the house of the deceased when the PW-1 i.e. his wife has left for the rehearsal. On her return, she found her husband in a pool of blood but the accused appellant was missing. According to her, she had searched for the accused appellant but could not be found. In her cross examination, she has stated that her husband used to take liquor occasionally and that he was out of his head. PW-2 a neighbour, stated in his deposition that on the fateful night, the PW-1 had gone to his house and narrated the incident. Coming to the house of the PW-1, he found the deceased dead. Thus, he is a reported witness. 3. PW-3 is the daughter of PW-2 who had also gone to see the rehearsal. She in her statement stated that when she had left along with the PW-1 to see the rehearsal, the accused appellant was with the deceased. Coming to the house of the PW-1, he found the deceased dead. Thus, he is a reported witness. 3. PW-3 is the daughter of PW-2 who had also gone to see the rehearsal. She in her statement stated that when she had left along with the PW-1 to see the rehearsal, the accused appellant was with the deceased. PW-4 and 5 in their deposition stated as to how the accused appellant used to live with the deceased and his wife. They also stated that at times, altercations took place between the deceased and the appellant. PW-6 is also a reported witness who could come to know about the incident next day morning. PW-7 in his deposition stated that he was informed about the death of the deceased and when he went there, the accused appellant could not be found. This witness was declared hostile. In his cross examination, he has stated that the public (villagers) did not tell him why they had gone in search of the accused appellant. He also stated that the public did not ask the accused appellant about the offence. 4. PW-8 is the Doctor who had conducted the post-mortem examination on the dead body. He in his depositions stated that no external injury was there in the dead body except in the head. He in his deposition opined that the death was due to shock and Coma as a result of the injury sustained. The injury was as follows:- No any external injury sign seen in the body except in the head. Lacerated injury on the right side of scalp with fracture of the upper part of the paretooccipital region of the scull bone exposing brain tissue and blood clot. The wound started from upper part of the right sided cheek which extends upto the occipital region of the right side of the scalp in the mid line. The injuries described are antemortem. 5. PW-10 is the Investigating Officer who conducted the investigation. 6. In the statement made by the accused appellant under Section 313 Cr.P.C., his plea was that he was not there at the place of occurrence and he did not know that the deceased died. 7. It is on the above evidence, the learned Trial Court having convicted the accused appellant, he has preferred the instant appeal. 8. We have heard Mr. P. Mahanta, learned Amicus Curiae representing the appellant. 7. It is on the above evidence, the learned Trial Court having convicted the accused appellant, he has preferred the instant appeal. 8. We have heard Mr. P. Mahanta, learned Amicus Curiae representing the appellant. We have also heard Mr. D. Das, learned APP, Assam and also gone through the materials available on record. Mr. Mahanta, learned Amicus Curiae, submits that on the basis of the aforesaid evidence, it cannot be said to be a case of conviction under Section 302 IPC. He submits that to establish the offence under Section 302 IPC on the basis of the circumstantial evidence, the chain of events will have to be established by the prosecution which according to him is missing in the instant case. 9. Countering the above argument, Mr. D. Das, learned APP, Assam submitted that when it is an established fact that the deceased was left with the accused appellant and after the incident, he was found missing from the house, nothing more is required to be established. According to him, the learned trial Court has rightly convicted the accused appellant by the impugned judgment. In this connection, he has placed reliance of this Court reported in 2005 (3) GLJ 136(Mangloo Proja Vs. State of Assam) and 2005 (3) GLJ 338(Khiren Chandra Kalita Vs. State of Assam). 10. We have given our anxious consideration to the submissions advanced by the learned counsel for the parties and also perused the entire evidence on record. In Mangloo Proja (Supra) the conviction of the accused appellant on the basis of circumstantial evidence was upheld when it was found that the accused lived along with his wife in the same house and found with the victim in the room bolted from inside. He also came out with a Dao in his hand. Same is not the case in hand. Unlike the said case, the accused appellant was not inside the house. 11. In Khiren Ch. Kalita (Supra) also upholding the conviction of the accused appellant on the basis of the circumstantial evidence, it was held that the incriminating circumstances proved that it was the accused alone who had committed the murder of his wife, with whom he had no good relation and used to quarrel frequently. No explanation could be furnished by the accused about four cut injuries on the person of the victim and that of the deceased. No explanation could be furnished by the accused about four cut injuries on the person of the victim and that of the deceased. In the said case also, the accused appellant was found inside the house. In that kind of a situation, it was held that the responsibility was with the accused appellant to explain his conduct and the cause of death of the deceased. 12. In the instant case, the accused appellant was not found in the house. The only statement on the basis of which the conviction is sought to be sustained is that part of the version of the PW-1 that when she had left for the rehearsal, the accused appellant was with the deceased but on return, he was not found along with him. On the other hand, the deceased was found lying on a pool of blood. The question is as to whether that by itself will establish the chain of events required to establish the offence punishable under Section 302 IPC. 13. In the instant case, the prosecution failed to prove the circumstances against the accused appellant and the chain of events leading to the offence. We are of the considered opinion that it will be totally unsafe to hold the accused appellant guilty of the offence under Section 302 IPC, merely on the basis of the evidence that although he was with the deceased when the PW-1 was left for the rehearsal but on return he was not found along with the deceased. 14. In Sudama Pandey Vs. State of Bihar reported in 2012 (1) SCC 679, the Apex Court held that in the case of circumstantial evidence, the various circumstances should be applied to form a chain pointing to the guilt of the accused. In case where there is only circumstantial evidence, the Court has to consider the evidence adduced by the prosecution and decide whether the evidence proves particular facts relevant for the purpose of the case and when such facts are proved the question arises whether the facts are capable of giving rise to any inference of the guilt of the accused person or not. An inference of guilt can be drawn only if the proved facts are wholly consistent with the guilt of the accused and certainly he is entitled to the benefit of doubt, if the proved fact is consistent with his innocence. 15. An inference of guilt can be drawn only if the proved facts are wholly consistent with the guilt of the accused and certainly he is entitled to the benefit of doubt, if the proved fact is consistent with his innocence. 15. The law relating to circumstantial evidence in clear and unmistakable terms, have been laid down by the Apex Court in its various decisions. In Tanviben Pankajkumar Divetia Vs. State of Gujarat reported in (1997) 7 SCC 156 , the Apex Court has made the following observation:- 45. The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions. 16. In the instant case, the only evidence led by the prosecution is that the accused appellant was with the deceased when the PW-1 left for the rehearsal but on her return he was not found at home. 16. In the instant case, the only evidence led by the prosecution is that the accused appellant was with the deceased when the PW-1 left for the rehearsal but on her return he was not found at home. That by itself, in our considered view, cannot point to the guilt of the accused. Needless to say, howsoever strong the presumption and suspicion could be but a conviction cannot be sustained on the basis of such presumption and suspicion. 17. Above being the position, we are of the considered opinion that the accused appellant is entitled to benefit of doubt and accordingly we are inclined to interfere with the judgment of conviction passed by the learned Sessions Judge, Jorhat in sessions Case No. 96(JJ)2005. The impugned judgment dated 17/5/2008 stands set aside and quashed. The appeal succeeds. Consequently, the accused appellant shall be set at liberty forthwith if not wanted in connection with any other case. 18. The Registry shall send down the LCR to the Court below along with a copy of this judgment and order. While appreciating the service rendered by Mr. P. Mahanta, learned Amicus Curiae, it is hereby it is hereby provided that he will be entitled to a hearing fee of Rs. 5000/- (Rupees five thousand) only to be borne by the Legal Services Authority. He will also be entitled to a copy of this judgment and order free of cost. Appeal allowed