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2013 DIGILAW 501 (GAU)

Joyram Kakati v. State of Assam

2013-07-31

I.A.ANSARI, INDIRA SHAH

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. This is an appeal against the judgment and order, dated 22.06.2010, passed, in Sessions Case No. 27(DM) of 2007, by the learned Sessions Judge, Drrang, convicting the accused-appellant, Joyram Kakati, under Section 302 IPC, read with Section 34 IPC, and sentencing him to suffer imprisonment for life and pay fine of Rs. 5,000/- and, in default of payment of fine, suffer rigorous imprisonment for another period of 3 (three) months. The case of the prosecution, as surfaced at the trial, may, in brief, be described thus: A land dispute existed between Ganeswar Das (since deceased), on the one hand, and the accused-appellant, Joyram Kakati and one Podoram Kakati, on the other. Actuated by the animosity, which arose out of the land dispute, both the accused-appellants, Joyram Kakati, and his associate, Podoram Kakati, together intercepted Ganeswar Das, on 06.06.1993, at about 7-00 A.M., while Ganeswar Das was on his way to his agricultural field, and assaulted him by means of lathi and spade and seriously injured him. The occurrence of assault, on Ganeswar Das, was seen by PW 1, wife of Ganeswar Das. On hearing hulla, when PW 2, who was ploughing his own land nearby, went running to the place of occurrence, wherefrom hulla was being raised, found both the accused aforementioned assaulting Ganeswar Das by means of spade. On hearing the hulla, even PW 3, a neighbour of Ganeswar, went running to the place of occurrence and saw both accused, Joyram Kakati and Podoram Kakati, running away from the place of occurrence. As a result of the injuries sustained by him on his head, Ganeswar succumbed to his injuries. The dead body was, then, brought to the house of the said deceased and a written Ejahar (Exhibit-1), with regard to the occurrence, was lodged at Dimakuchi Police Outpost, by PW 1, i.e., the widow of the said deceased. PW 8, who was the then In-charge of the said police outpost and who had, later on, investigated the case, forwarded the said Ejahar to Paneri Police Station, where Paneri Police Station Case No. 70/93, under Section 341/302/34 IPC, was registered against the said two assailants by treating the said Ejahar as First Information Report (in short, 'FIR'). 2. PW 8, who was the then In-charge of the said police outpost and who had, later on, investigated the case, forwarded the said Ejahar to Paneri Police Station, where Paneri Police Station Case No. 70/93, under Section 341/302/34 IPC, was registered against the said two assailants by treating the said Ejahar as First Information Report (in short, 'FIR'). 2. During the course of investigation, police visited the place of occurrence, drew sketch map of the place of occurrence, held inquest over the said dead body, which was also subjected to post-mortem examination and, on completion of investigation, laid charge-sheet, under Section 341/302/34 IPC, against both the accused afore-mentioned. 3. As the present appellant had absconded even before the charge-sheet was submitted, the learned Sessions Judge, Darrang, declared the accused-appellant, Joyram Kakati, as absconder and the trial proceeded against Podoram Kakati. At the end of the trial, the decision was pronounced, on 06.07.2000, convicting accused Podoram Kakati under Section 304 (PT-I) IPC and sentencing him accordingly. 4. As the present appellant, Joyram Kakati, was arrested subsequent to the conviction of Podoram Kakati, a charge was framed against the present appellant, under Section 302 IPC, read with Section 34 IPC, the accusation against the accused-appellant being that he, along with Podoram Kakati, caused, in furtherance of their common intention, death of Ganeswar Das and thereby committed offence punishable under Section 302 IPC read with Section 34 IPC. 5. In support of their case, prosecution examined altogether 6 (six) witnesses including the Investigating Officer. The accused was, then, examined under Section 313 Cr. PC and, in his examination aforementioned, the accused denied that he had committed the offence, which was alleged to have been committed by him, his case being that of denial. No evidence was adduced by the defence. 6. Having, however, found the present appellant guilty of the offence, which he stood 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, this appeal has been preferred by the accused against his conviction and the sentence passed against him. 7. We have heard Mr. P. Talukdar, learned amicus curiae, and Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 8. Aggrieved by his conviction and the sentence passed against him, this appeal has been preferred by the accused against his conviction and the sentence passed against him. 7. We have heard Mr. P. Talukdar, learned amicus curiae, and Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 8. While considering the present appeal, it needs to be pointed out that there is no dispute that, on 08.06.1993, the dead body of Ganeswar Das was subjected to post mortem examination by PW 5 (doctor), whose findings were as follows: (A) EXTERNAL APPEARANCE:- A dead body of an elderly male person wearing 'Gamocha' around the waist, one Banion and one blue shirt were found wearing on the body, whose rigor-mortis found present in all the four limbs, mouth closed, right side eye closed. There were three wounds over the head, which are as follows:- (1) Injury over the middle of the right parie to frontal are horizontally and a sharp cutting injury measuring 3" X" X" outing the scalp and fracturing underline bones. (2) A small scalp wound over parie to occipital region measuring 1" length. (3) Bruise over frontal area of the scalp over the right eye. (B) Cranium and spinal canal:- Injury over the right parie to frontal area of the scalp shows underlying bony fracture, membrane and injury of the brain matter. Blood clot over the brain matter in that area of the brain found. 9. In the opinion of the doctor, the injuries, sustained by the deceased, were ante mortem in nature and the death of Ganeswar was caused due to shock and harmorrhage, which resulted from the injuries sustained by him, the injuries, on the head, being sufficient to cause death in the ordinary course of nature. 10. The findings of the doctor and his opinion, with regard to the nature of injuries and the cause of death, have not been in dispute. 10. The findings of the doctor and his opinion, with regard to the nature of injuries and the cause of death, have not been in dispute. This apart, we, too, notice nothing inherently improbable or incorrect in the doctor's findings and opinion, which were to the effect that that as many as 3 (three) injuries had been sustained on his head by the said deceased, that the injuries were ante mortem in nature, that death was caused as a result of shock and haemorrhage, which resulted from the injuries sustained by the said deceased, and that the injuries, on the head, was sufficient to cause death in the ordinary course of nature. 11. We may, however, point out that though the doctor has opined that the injuries had been caused by sharp-cutting weapon, a careful examination of the injuries shows that the injuries, on the head of the said deceased, particularly, injury Nos. 2 and 3, could have been caused by blunt object. There can, however, be no doubt that the injuries, caused on the head of the said deceased, were sufficient to cause death and the death was caused due to shock and haemorrhage, which resulted from the injuries sustained by the said deceased on his head. 12. Bearing in mind the medical evidence on record, when we turn to the evidence of the informant (PW 1), who is the widow of the said deceased, we notice that, according to her evidence, at the material time, when her husband was proceeding towards his agricultural field, accused Joyram Kakati (i.e., the appellant herein) alongwith others intercepted her husband and killed him, whereupon she lodged an Ejahar, in this regard, which is Exhibit-1. 13. In her cross-examination, PW 1 has clarified that, on hearing hulla, she went running to the place of occurrence and saw both the accused, Joyram Kakati and Podoram Kakati, assaulting her husband and that while accused Joyram was assaulting her husband by lathi, accused Podoram was seen by her assaulting her husband by a spade. 14. 13. In her cross-examination, PW 1 has clarified that, on hearing hulla, she went running to the place of occurrence and saw both the accused, Joyram Kakati and Podoram Kakati, assaulting her husband and that while accused Joyram was assaulting her husband by lathi, accused Podoram was seen by her assaulting her husband by a spade. 14. Though PW 1 has denied that she did not state before the police that she had seen Joyram Kakati assaulting her husband by lathi and accused Podoram assaulting her husband by a spade, the Investigating Officer (PW 6) has confirmed that, in her statement recorded during investigation, PW 1 had not stated that she had seen accused Joyram assaulting her husband with lathi and accused Podoram causing hurt to her husband by assaulting him with a spade; rather, her statement was that both the accused persons, namely, Joyram Kakati and Podoram Kakati, had caused hurt, on the head of her husband, by means of spade. 15. Situated thus, what becomes transparent is that, while the occurrence of assault, on the said deceased, was fresh in the mind of PW 1, she claimed that both the accused, namely, Joyram and Podoram, had caused hurt, on the head of her husband, by means of spades; whereas, her evidence, at the trial, is that while accused Joyram (i.e., the appellant herein) had assaulted her husband, on his head, by means of lathi, accused Podoram had caused hurt on her husband by means of a spade. 16. Undoubtedly, there is contradiction, in the evidence of PW 1, in describing the weapons in the hands of the two accused aforementioned. While, during investigation, PW 1 had alleged to have seen both the accused assaulting her husband by means of spade, she, now, claims, in her evidence, that while the accused, Joyram, had assaulted her husband by means of lathi, accused Podoram had assaulted her husband my means of spade. 17. If a witness tells the truth, while describing the weapon(s) used by an assailant, there is no reason for such a witness to describe, at different stages, different weapons in the hands of one and the same accused. 17. If a witness tells the truth, while describing the weapon(s) used by an assailant, there is no reason for such a witness to describe, at different stages, different weapons in the hands of one and the same accused. Logically, therefore, if PW 1 was telling the truth that the accused-appellant, Joyram Kakati, had assaulted her husband by means of lathi, there was no reason for her to state before the police that she had seen her husband being assaulted by accused Joyram by means of a spade. 18. In the face of the apparent contradiction, with which suffers the evidence of PW 1, it is not only difficult but wholly impossible to safely rely upon her evidence with regard to the occurrence of assault on her husband. 19. Close on the heels of the evidence of PW 1, PW 2 has deposed that at the material time, he was ploughing his field and, on hearing hulla, when he went to the spot, he found Ganeswar being assaulted by both accused, Joyram and Podoram, by spades and Ganeswar sustained grievous injuries on his head and other parts of his body and died on the spot. 20. In his cross-examination, PW 2 has clarified that the place of occurrence was not visible from the place, where he was ploughing, and that when he reached the place of occurrence, he saw both the accused persons running away. 21. Though PW 2 has denied that he stated before the police that the moment he had arrived at the place of occurrence, he had seen accused Podoram quarreling with Ganeswar, the Investigating Officer (PW 8) has confirmed that PW 2 had, indeed, stated, in his previous statement made before the police, that he had seen accused Podoram Kakati quarreling with Ganeswar, when he (PW 2) reached the place of occurrence. 22. From the previous statement of PW 2, it clearly transpires that he had not named the present appellant before the Investigating Officer as assailant of Ganeswar, rather, what he had stated before the police was quite different from what he has deposed at the trial inasmuch as he (PW 2) had merely stated, in his previous statement made before the police, that he had seen Ganeswar being assaulted by accused Podoram Kakati and not the present appellant. This apart, though PW 2 initially deposed, at the trial, that he had seen both the accused assaulting Ganeswar Das, he retracts his evidence by claiming that when he reached the place of occurrence, he saw both the accused persons, i.e., Joyram Kakati (accused-appellant) and accused Podoram Kakati (since convicted) running away and he, thus, does not stand by his evidence, given in his examination-in-chief, that he had seen both the said accused assaulting Ganeswar Das. 23. Situated thus, it is clear that even the evidence of PW 2 cannot be treated as reliable witness, when his evidence is found to be, self-contradictory. 24. As far as PW 3 is concerned, his evidence is to the effect that, on hearing hulla, when he went running towards the place of occurrence, he saw accused Joyram and Podoram running away and Ganeswar lying dead. 25. However, in his cross-examination, though PW 3 has denied that he stated before the police that he had seen Joyram running away from the place of occurrence, where the dead body of Ganeswar was lying, the Investigating Officer has confirmed that PW 3 did state before the police that he (PW 3) had seen Joyram running away from the place of occurrence, where the dead body of Ganeswar was lying. 26. It, therefore, logically follows that PW 3 had not named accused Podoram as having been seen by him (PW 3) running away from the place of occurrence. 27. Thus, even PW 2 has not been consistent in his evidence in describing what he had seen. 28. From the above discussion of the evidence given by PWs 1, 2 and 3, what can be easily gathered is that the evidence, given by PWs 1, 2 and 3, is not only contradictory, inconsistent and inherently unreliable, but their evidence is mutually exclusive and destructive of each other's evidence inasmuch as PW 1 claims, in her evidence, that while the present appellant, Joyram Kakati, had assaulted Ganeswar by means of lathi, accused Podoram Kakati had assaulted Ganeswar by means of spade; whereas, PW 1, in her previous statement, described spade as the weapon, which had been used by both, Joyram (i.e., the present appellant) as well as Podoram (since convicted). If a witness tells the truth, it does not vary or change with time on major aspects of the incident. If a witness tells the truth, it does not vary or change with time on major aspects of the incident. Had PW 1 really seen the occurrence of assault on her husband, she would have described the same weapon in the hands of the appellant, which she had described as having been used by the appellant, while her statement was recorded by the police. Similarly, while PW 2 claims that he had seen the two accused assaulting Ganeswar by means of spade, he has candidly admitted that the place of occurrence was not visible from the place, where he was ploughing, and that while he reached the place of occurrence, both the accused were running away. As against this piece of evidence of PW 2, too, he (PW 2) is shown to have stated before police that when he reached the place of occurrence, he saw accused Podoram (and not the appellant) quarreling with Ganeswar Das. Thus, while, in his evidence, PW 3 claims that he had seen both the accused running away, he had stated before the police, while the occurrence was fresher in his mind, that he had seen accused Joyram running away from the place of occurrence. Similarly, he had not named Podoram having been seen at or near the place of occurrence. 29. Situated thus, it is clear that none of the witnesses can be treated as believable or reliable. 30. Taking into consideration the contradictions and inconsistencies, as revealed from the evidence of these witnesses, we are of the view that based on such evidence, it could not have been safely held by the learned Court below that the prosecution had succeeded in proving the case against the accused-appellant beyond reasonable doubt and, in such circumstances, the accused-appellant ought to have been given, at least, benefit of doubt. 31. In the result and for the reasons discussed above, this appeal stands allowed. The conviction of the accused-appellant and the sentence, passed against him, is hereby set aside. The accused-appellant is held not guilty of the offence, which he was charged with, and he is acquitted of the same under benefit of doubt. 32. This appeal accordingly stands disposed of. 33. Let the amicus curiae be paid a sum of Rs. 5,000/- for his valuable assistance rendered to the Court. Send back the LCR.