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2013 DIGILAW 504 (GAU)

Parul Rabha v. State of Assam

2013-07-31

I.A.ANSARI, INDIRA SHAH

body2013
JUDGMENT Dr. Indira Shah, J. 1. The judgment and order, dated 3.5.2011, passed by the learned Sessions Judge, Goalpara, in Sessions Case No. 155/2006, convicting the appellants, under Section 302, read with Section 34 IPC, and sentencing them, thereby, to undergo imprisonment for life, and also to pay a fine of Rs. 10,000/-, each, in default of payment of fine, further rigorous imprisonment for 1(one) year, has been assailed, in this appeal. The prosecution case, in brief, is that, on 16.02.2005, at around 11.30 PM, Parul Rabha, Hemanta Rabha, Jayanta Kalita, Narayan Choudhury, along with others, came to the house of Anil Rabha (since deceased), assaulted him by means of bamboo sticks and fist blows, and thereafter, dragged him away from his house. They brought him back in a serious condition and after 10/12 days of treatment, Anil Rabha died. An FIR, being lodged by Sanjib Rabha, brother-in-law of the deceased, Dhupdhara P.S. Case No. 09/2005, under Sections 448/302/34 IPC, was registered. On completion of investigation, police submitted the charge-sheet against the accused Parul Rabha, Hemanta Rabha, Anup Rabha, Narayan Roy, and Jayanta Nath. Accused Jagat Rabha, Phukan Rabha, Achyut Rabha, and Jyotish Rabha, were shown as absconders in the charge-sheet. Accused Hemanta Rabha died sometime in the year 2006 while accused Parul Rabha, Anup Rabha, Narayan Roy, and Jayanta Nath, faced the trial. Out of these 4 accused persons, Parul Rabha and Jagat Rabha (appellants herein), were found guilty under Section 302 IPC. They were convicted and sentenced, as stated earlier, while other 2(two) remaining accused persons, were acquitted, on benefit of doubt. 2. Heard Mr. K. Sarma, learned counsel for the appellants, as well as, Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 3. PW-1, Smti. Nage Bala Rabha, is the mother of deceased Anil Rabha She deposed that the deceased along with his wife, was residing in a separate house but in the same compound where she used to live, and, on the day of occurrence, at midnight, while she was sleeping in her house, the accused persons came to her house in search of deceased Anil Rabha. They told her that they wanted to meet Anil Rabha. Thereafter, she came to the house of her son Anil Rabha and when Anil Rabha came out of his house, the accused persons took him to a village Club house. She further stated that her daughter-in-law, Smti. They told her that they wanted to meet Anil Rabha. Thereafter, she came to the house of her son Anil Rabha and when Anil Rabha came out of his house, the accused persons took him to a village Club house. She further stated that her daughter-in-law, Smti. Runu Rabha (PW-9), also accompanied them. She alleged that in the Club house, all the accused persons assaulted Anil Rabha, causing injuries on his person. Thereafter, they brought him back to his house on a pushcart and left him there. Medical treatment of Anil Rabha was arranged personally in her house. After one week of the occurrence, Anil Rabha succumbed to his injuries. In her cross-examination, she stated that about 100-200 people came to the place of occurrence and they alleged that deceased Anil Rabha had committed theft. The villagers took away Anil Rabha to the Club house. She did not see who assaulted Anil Rabha in the said Club house. She admitted that it was a dark night and due to darkness, she could not recognize who had actually taken her son Anil Rabha from her house. She also stated that after 3/4 days of occurrence, a Compounder of the village was called for treatment of Anil Rabha. 4. Smti. Runu Rabha (PW-9), wife of deceased Anil Rabha, deposed that at around 11 PM of the day of occurrence, while she was sleeping with her husband Anil Rabha, she heard nullah outside the house, her husband got up from his sleep and went out of the house while she remained inside the house. After a short while, she heard screaming sounds and then, she came out of the house and went to the road, where she found her husband, Anil Rabha, lying on the road in an injured condition, and, there was none present at that point of time, with her husband. She, with the help of her neighbours, removed her injured husband Anil Rabha to her house. Thereafter, the injured was taken to Dhupdhara PHC for medical treatment. She further stated that she did not see any injury mark on the dead body of her husband deceased Anil Rabha. She only noticed one cut mark on the back of the right ear of deceased Anil Rabha. She, however, stated that, her husband was not in a condition to talk, at the time of occurrence. She further stated that she did not see any injury mark on the dead body of her husband deceased Anil Rabha. She only noticed one cut mark on the back of the right ear of deceased Anil Rabha. She, however, stated that, her husband was not in a condition to talk, at the time of occurrence. After 12 days, her husband Anil Rabha died. Thereafter, her brother Sri Sanjib Rabha (PW-7) lodged the FIR. 5. PW-2, Sri Rajib Rabha, had narrated a different story. He stated that at about 5 PM, the occurrence took place. At the time of occurrence, he was looking after his paddy field, which is situated near the house of deceased Anil Rabha. According to him, at about 5 PM, accused Jayanta Nath and Narayan Roy, came to the house of deceased Anil Rabha and assaulted him in his courtyard, and, thereafter, they left the house, by saying that they will come later on. Anil Rabha sustained injuries on his person and he was taken to Dhupdhara PHC for medical treatment. After one week, Anil Rabha succumbed to his injuries. 6. The story narrated by PW-2, is, neither, corroborated by PW-1, nor, corroborated by PW-9. PWs-1 and 9 deposed that the incident occurred at around 11 PM-12 midnight, whereas, according to PW-2, at about 5 PM, the deceased Anil Rabha was assaulted by the accused Jagat Rabha and Narayan Roy. None of the witnesses examined by the prosecution stated that, any incident occurred at about 5 PM, hence, the evidence adduced by PW-2, cannot be relied upon. 7. PW-3, Sri Gautam Rabha, PW-6, Sri Braja Rabha, PW-8, Sri Kamini Mohan Rabha, PW-10, Sri Bhukan Rabha, PW-11, Sri Rabin Rabha, and, PW-12, Sri Dharani Rabha, could not see how Anil Rabha died. PW-4, Sri Ananda Rabha, stated that he heard that Anil Rabha died due to illness. 8. PW-7, Sri Sanjib Rabha, is the informant of this case. He did not see the occurrence. He deposed that one person from the village of deceased Anil Rabha, came to his house and informed that his brother-in-law, deceased Anil Rabha, was assaulted by some unknown persons. After 2 days of getting the information, PW-7, went to the house of deceased Anil Rabha and found him dead. Thereafter, he lodged the FIR in which he mentioned the names of the accused persons, as informed by her sister Smti. After 2 days of getting the information, PW-7, went to the house of deceased Anil Rabha and found him dead. Thereafter, he lodged the FIR in which he mentioned the names of the accused persons, as informed by her sister Smti. Runu Rabha (PW-9). 9. We have discussed earlier that Smti. Runu Rabha (PW-9) did not see anybody when she came out of her house. She did not state that she mentioned the names of the accused persons to her brother Sri Sanjib Rabha (PW-7). 10. PW-14, Dr. Safiqul Islam, conducted the post-mortem examination, on the dead body of deceased Anil Rabha, and, found the following:- A male dead body of about 32 years age was found with rigor mortis present all over the four limbs with blackish discolouration (patchy) on the left thigh, both sides of the back (i.e. paravertebrae area) lacerated wound on the left 2nd and 3rd toes, blackish discolouration on both the gluteal regions and anterior aspect of chest i.e. on the sternum. Mouth and eyes were closed. Cranium and spinal canal are healthy, liver was healthy, kidney and bladder was healthy, but spleen was ruptured. Abdomen was healthy. On dissection, there was collection of serosanguinous fluid in the peritoneal cavity. Spleen was found to be ruptured. In the opinion of Doctor, the death of the deceased was due to shock and haemorrhage due to splenic rupture following blunt abdominal trauma. In his cross-examination, the Doctor opined that spleen may be ruptured due to any other cause. 11. The cause of the death of deceased Anil Rabha was due to shock and haemorrhage, arising out of splenic rupture, was not disputed by the defence. 12. PW-13, Sri Tarun Choudhury, S.I., is the Investigating Officer, of this case. 13. From the foregoing discussions, it appears that PWs-1 and 2, only, claimed themselves to be the eye-witnesses. The evidence of PWs-1 and 2, are inconsistent with regard to time of occurrence as well as number of accused persons. PW-1 stated that her daughter-in-law, Smti. Runu Rabha (PW-9) accompanied the deceased Anil Rabha and the accused persons to the village Club house, whereas, Smti. Runu Rabha, stated that she remained inside the house of her deceased husband Anil Rabha when her deceased husband left the house. After hearing screaming sounds only, she came out of the house and found her husband, lying on the road, in an injured condition. Runu Rabha, stated that she remained inside the house of her deceased husband Anil Rabha when her deceased husband left the house. After hearing screaming sounds only, she came out of the house and found her husband, lying on the road, in an injured condition. Therefore, the evidence of PW-1 that she saw the deceased Anil Rabha being taken away by the accused persons to the Club house and her daughter-in-law accompanying them, is not believable. Moreover, she, in her cross-examination, stated that there were 100-200 people who allegedly took away her son Anil Rabha. She further admitted that it was a dark night and due to darkness, she could not recognize who actually took away her son Anil Rabha from her son's house. It appears from her own admission, that, she could not recognize who were the assailants. The findings of the trial Court, that the accused appellants were the members of a group of villagers who had taken-out the deceased Anil Rabha from his house and after assaulting him, brought him back to his house and dropped him there, is perverse. The accused appellants, therefore, cannot be convicted, under Section 302 IPC, or, any other penal provisions of law, and as such, they are entitled to get acquittal. 14. Accordingly, the judgment and order, dated 03.05.2011, passed by the learned Sessions Judge, Goalpara, in Sessions Case No. 155/2006, convicting the appellants, under Section 302, read with Section 34 IPC, and sentencing them, thereby, to undergo imprisonment for life, and also to pay a fine of Rs. 10,000/-, each, in default of payment of fine, further rigorous imprisonment for 1 (one) year, is hereby set aside and quashed. 15. The accused appellants are hereby acquitted and set at liberty forthwith, if they are not wanted by the police, in connection with any other case. 16. Send down the connected LCRs along with a copy of this Judgment and order, to the Court below, immediately. Before parting with the judgment, we direct the State Government to pay compensation of Rs. 50,000/- (Rupees Fifty Thousand) only, to the family members of the victim, in terms of Section 357A of the Code of Criminal Procedure, 1973.