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2013 DIGILAW 465 (CAL)

Susant @ Joseph Toppo v. State

2013-07-18

MURARI PRASAD SHRIVASTAVA, SUBHRO KAMAL MUKHERJEE

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Judgment :- Murari Prasad Shrivastava, J. The present appeal is directed against the judgment and order of conviction and sentence dated 21st March, 2012 passed by the learned Additional Sessions Judge, Andaman and Nicobar Islands, Port Bair in Session Case No.90 of 2009 relating to Session Trial No.62 of 2010 under section 302 of the Indian Penal Code whereby and whereunder the appellant was sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs.2000/-(Rupees two thousand) only, in default, to suffer rigorous imprisonment for two months. The prosecution case, in brief, is that the victim Pladus Bakhla, whom the defacto complainant knew for some time, used to come to his house and on 2.7.09 at about 5 p.m, he came to the house of the defacto complainant and stated that he had a quarrel with his friend Shri Joseph Toppo, the present accused, for which he was not willing to go to the jungle with the accused for killing pig but rather work in his field and stay in his house and accordingly, the said Pladus Bakhla had food in the house of the defacto complainant and slept in his house. Subsequently, on 3.7.09, the defacto complainant and Pladus Bakhla ploughed the field of the defacto complainant and Pladus, having had food in the house of the defacto complainant, went to the cowshed where he slept and the defacto complainant slept in his house with his family. Subsequently, at mid night, wife of the defacto complainant, Smt Salomi Katchwa, woke him up and told that somebody’s painful noise was coming from outside upon which the defacto complainant and his wife went towards the cowshed and with light of the ‘Diya’ saw Pladus Bakhla making such painful noise, lying on the charpoy and blood was oozing out near the right eye and his left temple and he was also in unconscious condition. They further found that a wooden button with blood stain was lying on the said Charpoy. The defacto complainant, at once, called Egnish Bakhla, brother of the said Pladus Bakhla, and told him about the incident. The defacto complainant thereafter went to the house of the Pradhan, Jogga Rao and after informing him returned to his house. Jogga Rao reached the place of occurrence in his motor cycle and informed the Primary Health Centre, Hut Bay for sending ambulance. The defacto complainant thereafter went to the house of the Pradhan, Jogga Rao and after informing him returned to his house. Jogga Rao reached the place of occurrence in his motor cycle and informed the Primary Health Centre, Hut Bay for sending ambulance. Subsequently,Egnish Bakhla and the defacto complainant took the victim in the ambulance and got him admitted in the hospital. The defacto complainant doubted that due to the quarrel between Pladus Bakhla and the accused Joseph on 1.7.09, the said accused had hit the victim on his head with the wooden button while he was sleeping, with intention to kill him. The Fardbayan of the defacto complainant was recorded by S.I. A.K.Singh and it was sent to the Police Station. On the basis of the same, which was registered as FIR, a case was started under section 307 of the Indian Penal Code. Subsequently, the victim died in the hospital and the case proceeded against the accused under section 302 of the Indian Penal Code. The investigation was taken up by Inspector S.N.Singh immediately after lodging of FIR and after completion of investigation, charge sheet under section 302 of the Indian Penal Code was submitted against the accused. The charge was duly framed against the accused and the same was read over and explained to him to which he pleaded not guilty and claimed to be tried. In all 21 (twenty one) witnesses were examined on behalf of the prosecution. Several documents including the statement of the witnesses recorded under section 164 of the Code of Criminal Procedure, inquest report, seizure list, photographs, CFSL reports, injury reports as well as the post mortem examination report have been marked exhibits in this case. A blood stained wooden button as well as blanket, lungi, planks of cot, plastic mat, and other materials have been marked as Material exhibits. Though the defence did not adduce any evidence, it is its case that the victim Pladus Bakhla had intimate relationship with the wife of the defacto complainant, who upon coming to know of the same inflicted assault on the victim with the wooden button as a result of which he died. Though the defence did not adduce any evidence, it is its case that the victim Pladus Bakhla had intimate relationship with the wife of the defacto complainant, who upon coming to know of the same inflicted assault on the victim with the wooden button as a result of which he died. The learned Additional Session Judge, upon consideration of the evidence and materials on record, found that the accused was guilty of the offence punishable under section 302 of the Indian Penal Code and, accordingly, convicted and sentenced him to suffer rigorous imprisonment for life and to pay a fineof Rs.2000/-(Rupees two thousand) only, in default, to suffer rigorous imprisonment for two months. Admittedly, there is no eye witness to the occurrence and the entire prosecution case is based on circumstantial evidence. The learned Additional Session Judge has rightly observed that the law regarding circumstantial evidence is well settled and when a case rests on circumstantial evidence, it must satisfy that circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, those circumstances should be of definite nature and tendency unerringly pointing towards guilt of the accused and the circumstances taken cumulatively should form a chain so complete in itself that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. Mr.Krishna Rao, learned advocate for the accused at the outset submits that though PW s 7 and 8, the brother and sister-in-law of the victim have deposed about the quarrel between the victim and the accused over the issue of the sale proceeds obtained after selling animals which they caught by hunting, and further about the victim having given a slap to the accused, he compromised the matter after which the victim and the accused went away. PW-1, the defacto complainant, speaks about the accused coming to his house on 3.7.09 in the evening and talking to the victim and further that he had found the accused leaving in angry mood but there is no such story in the FIR – Exhibit-10. Moreover, the statement under section 164 of the Code of Criminal Procedure made by the said defacto complainant before the learned Judicial Magistrate speaks about the accused coming in the morning. Moreover, the statement under section 164 of the Code of Criminal Procedure made by the said defacto complainant before the learned Judicial Magistrate speaks about the accused coming in the morning. Thus, the finding of the learned Trial Court that during the evening of the night of occurrence on 4.7.09 the accused came to see the victim and there was quarrel between them at that time, is contrary to the evidence and the materials on record. In fact, the vital link in the chain about the accused and the victim being seen together just before the occurrence has not at all been proved by the prosecution. In this context, I am inclined to refer to the evidence of PW-11, the wife of PW-1, who does not say anything about the accused coming to their house on 3.7.09 or 4.7.09. Rather she says, in her cross-examination, that she did not see any quarrel between the accused and the victim. Mr.Santosh Kumar Mondal, learned Public Prosecutor, submits that the accused had absconded after the occurrence and a valid presumption can very well be raised against him. However, from the record, I find that the occurrence took place on 3/4.7.09 in the mid-night and the accused was apprehened on the same day on 4.7.09. PW-18 has deposed about the defacto complainant accompanying him in search of the accused and at about 2.30 PM on the same day, the said defacto complainant , upon noticing the accused pointed him out to PW-18 who chased and caught hold of the accused. PW-1, the defacto complainant, in his evidence has no where deposed that he accompanied P.W-18 in search of the accused or that he pointed out the accused to PW-18. The occurrence having taken place in the mid-night and the accused having been arrested on the same day, it cannot be said that the accused had absconded after the occurence. Mr.Mandal, now refers to the evidence of PW-10 and submits that the accused had gone to his house and confessed of having murdered the victim. However, this PW-10 denies having stated this to the police. Further more, it is quite unbelievable that when the accused had told the said witness that he had committed murder of one person, the said PW-10 would advise him to go to the police station and himself get hold of his fishnet and go to catch fish. However, this PW-10 denies having stated this to the police. Further more, it is quite unbelievable that when the accused had told the said witness that he had committed murder of one person, the said PW-10 would advise him to go to the police station and himself get hold of his fishnet and go to catch fish. Such extra judicial confession on which the learned Additional Session Judge has placed much reliance, in our opinion, cannot be believed. The fact remains that a person was murdered and the evidence of the doctor, as well as the post mortem examination report clearly prove the same. But that the accused, and the accused only, murdered the victim has to be established beyond reasonable doubt particularly when the prosecution case rests entirely on circumstantial evidence. The important links in the chain as we have already observed above, have not been proved by the prosecution. In view of the discussion above and having regard to the evidence and materials on record, we have no hesitation in holding that the appeal should be allowed. In the result the appeal succeeds. The judgment and order impugned is set aside and the appellant be released forthwith from custody if he is not required in any other case. Let a copy of this judgment along with the lower court records be sent to the learned court below for information and necessary action. Urgent photostat certified copy, if applied for, be handed over to the parties as early as possible. I agree Subhro Kamal Mukherjee, J.