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2013 DIGILAW 617 (GAU)

Dilip Nath v. State of Assam

2013-08-26

M.R.PATHAK, TINLIANTHANG VAIPHEI

body2013
JUDGMENT Tinlianthang Vaiphei, J. 1. This criminal appeal is directed against the judgment dated 27.11.2009 passed by the learned Additional Sessions Judge (Fast Track Court) Cachar, Silchar in Sessions Case No. 11 of 2008 convicting the appellant under Section 302 IPC and sentencing him to undergo life imprisonment with a fine of Rs. 5,000/- and, in default thereof, to suffer another rigorous imprisonment for 6 (six) months. The facts giving rise to this appeal, as projected by the prosecution, are that on 25.9.2003, at about 10.35 P.M., the In-Charge Malugram T.O.P. received an information from one Bikash Das, a member of Zila Parishad of Dudhpatil area over telephone that on that day, the appellant had killed his wife with a sharp weapon and thrown the dead body in the midst of the paddy field and prayed for action. On the basis of this information, the In-Charge, Malugram T.O.P. made G.D. Entry 495 dated 25-9-2003 and after consulting with the Officer-in-Charge, Silchar Police Station, proceeded towards Chotodudhpatil, Rangalal Tilla i.e. the place of the occurrence. On 26.9.2003 i.e. the next day, Probhat Deb Nath (PW-3) lodged a formal complaint with the Malugram T.O.P. (Silchar Police Station) stating therein that on 25.9.2003 at around 8.45 P.M. on hearing somebody shrieking, he along with Amulya Deb Nath (PW-1) and others rushed to the place of occurrence and with the focus of a torch light, they found a dead body lying on the paddy field. They also found the appellant (Dilip Nath) standing therein with the dead body armed with a sword like weapon and told them that he had killed his wife and warned them not to go near him otherwise they would face dire consequence. Being afraid, they left the place of occurrence. The appellant then fled away in darkness. On receipt of the said complaint, the In-Charge of Malugram Post Office forwarded the same to the O/C, Silchar, P.S., who accordingly, registered a regular case being Silchar P.S. Case No. 1162/03 under Section 302 IPC. 2. Being afraid, they left the place of occurrence. The appellant then fled away in darkness. On receipt of the said complaint, the In-Charge of Malugram Post Office forwarded the same to the O/C, Silchar, P.S., who accordingly, registered a regular case being Silchar P.S. Case No. 1162/03 under Section 302 IPC. 2. After conducting the investigation of the case such as visiting the place of the occurrence, preparing the sketch map of the place of incident, recording the statement of witnesses, seizure of incriminating materials, conducting inquest over the dead body and conducting post mortem examination of the dead body, the police found a prima facie case against the appellant U/s. 302 IPC and accordingly charge-sheeted him to face the trial. At this stage, it may be noted that the appellant had been absconding from the date of the incident for about 5 years and was arrested only on 20.2.2008. On commitment, the learned Additional Sessions Judge (Fast Track Court), Cachar framed the charge against him under Section 302 IPC, which was read over and explained to the appellant to which he pleaded not guilty and claimed to be tried. To bring home the charge against accused-appellant, the prosecution examined seven (7) witnesses including some materials exhibits and documents. The appellant however, did not adduce any defense witness. After recording the evidence of the prosecution witnesses, the appellant was examined under Section 313 Cr.P.C. in which all the incriminating evidences appearing in evidence were put to the accused person for explanation, but he denied of having committed the crime against him. On the contrary, he set up a plea of alibi and stated that at the time of occurrence, he was at Dharmanagar (Tripura) and that for the last seven (7) months prior to the occurrence, he had been residing at rented house of one Ganesh Paul of Smasan Kalibari Ghat and used to work as a Carpenter staying in the said house. Thus, the case of the appellant is that he has been falsely implicated by the police. At the conclusion of the trial, the trial Court passed the impugned judgment of conviction and sentence, the legality whereof is now under challenge. 3. Mr. K.K. Bhatta, learned Amicus Curiae argued that there are many contradictions and gaping holes in the case of the prosecution, which vitiate the conviction of the appellant. At the conclusion of the trial, the trial Court passed the impugned judgment of conviction and sentence, the legality whereof is now under challenge. 3. Mr. K.K. Bhatta, learned Amicus Curiae argued that there are many contradictions and gaping holes in the case of the prosecution, which vitiate the conviction of the appellant. According to him, when PW-2 and PW 5 have been declared as hostile witnesses and did not corroborate the evidence of PW 1 and PW 3, serious doubt is cast upon the story of the prosecution. In a criminal case, it is the duty of the prosecution to prove beyond reasonable doubt that the accused is guilty of the crime charged against him. He reiterates time and again that both PW 2 and PW 5 deposed that they did not see the commission of the crime by the appellant, and under the circumstance, it will not be safe to rely on the evidence of PW 1 and PW 3 to convict the appellant. As the trial court has failed to appreciate evidence in its correct perspective, submits the learned Amicus Curie, the impugned judgment cannot be sustained in law, and is liable to be set aside. On the other hand Ms. S. Jahan, learned Addl. P.P. submits that the impugned judgment does not suffer from any infirmity and does not call for the interference of this Court. The learned Addl. P.P. further submits that the extra judicial confession made by the appellant before the prosecution witnesses, the veracity whereof could not be shaken in any manner by the defense in their cross-examination, is sufficient to prove the guilt of the appellant. The contradictions and discrepancies sought to be relied upon by the learned Amicus Curie are minor in nature and cannot otherwise destroy of the core of prosecution case, which is based on both proven circumstantial evidence: man may, but circumstances cannot. She, therefore, strenuously urges this Court to dismiss the appeal, which is devoid of merit. 4. We have seen that there are no ocular witnesses and that the case of the prosecution is entirely based on circumstantial evidence. On careful examination of the impugned judgment and other materials on record and after giving our anxious consideration to the submissions advanced by the learned Amicus Curiae as well as the learned Addl. 4. We have seen that there are no ocular witnesses and that the case of the prosecution is entirely based on circumstantial evidence. On careful examination of the impugned judgment and other materials on record and after giving our anxious consideration to the submissions advanced by the learned Amicus Curiae as well as the learned Addl. P.P., we are of the view that the trial Court rightly convicted the appellant under Section 302 IPC. In convicting the appellant, the trial court principally relies on the evidence of PW 1 and PW 3. It may be noticed that PW 2 and 5, who accompanied PW 1 and PW 3 to the place of occurrence just after the incident, however, turned hostile in the course of trial. PW-1, who is the neighbour of the deceased, and deposed that on the night of the occurrence, while he was at home, at around 8.45 P.M., he heard a woman shrieking from nearby paddy fields whereafter he called his neighbour (PW-3) and apprised him of what he had just heard. He along with PW-3 and some other persons then proceeded to the place wherefrom the cry of a woman came. He further deposed that with the torch they were focusing, they found bloodstain at the place of the occurrence. When they proceeded further following the blood, deposed the witness, they saw the appellant sitting on a paddy field and showing them a sword and forbidding them not to proceed further. According to PW 1, the appellant confessed to them that he killed his wife and thereafter he fled away. This witness also testified that they raised hue and cry whereupon other villagers also gathered there and after searching the place, they found the deceased, who is the none other than the wife of the appellant, lying on the paddy field. According to the PW-1, the deceased was found stabbed by a knife at her neck: the deceased had already died by that time. He also testified that they informed the occurrence to the member of Zila Parishad, who then informed the matter to the police. The police came to the spot on the very night of the place of occurrence and took away the dead body to the Police Station. He also testified that they informed the occurrence to the member of Zila Parishad, who then informed the matter to the police. The police came to the spot on the very night of the place of occurrence and took away the dead body to the Police Station. In his cross examination PW-1, he deposed that the dead body was found on a paddy field at a distance of about 200 meters from his house and reiterated that they saw the deceased by lighting torch. The cross examination of the PW-1 does not elicit anything to impeach his credibility. It may be noted that the statement of this witness in his examination-in-chief that the appellant told them that he killed his wife (the deceased) has not in any manner been shaken by the defense in the cross-examination. Apart from mere denial, no other tangible materials could be brought out by the defense to cast doubt on the version of this witness. 5. PW-2 was declared as a hostile witness by the prosecution. He testified in his examination-in-chief that on the day of the occurrence, he along with the other co-villagers saw dead body of the deceased and that the deceased, wife of the appellant was found lying with injury at her neck. He deposed that he did not see the appellant at the place of the occurrence. PW-3 in his evidence stated that the appellant is his co-villager while deceased is the wife of the appellant. He testified that on the night of the occurrence, while he was at home at about 8.45 P.M., he heard a cry from the direction of the nearby paddy field. According to him, at that time he was with Harendra Nath and Brojendra Nath and on hearing the sound of shrieking, they all came out from his house and after taking a torch in his hand, they proceeded towards the paddy field wherefrom they heard the shrieking. He further testified that on the way to the place of the occurrence, they saw blood and followed the blood stains and on proceeding further, they found a dead body lying in the paddy field and the appellant sitting near the dead body. He further testified that on the way to the place of the occurrence, they saw blood and followed the blood stains and on proceeding further, they found a dead body lying in the paddy field and the appellant sitting near the dead body. According to him, when he asked the appellant what he was doing there, the appellant showed them a sword and forbade them to proceed further toward him and then told them that he killed his wife and when they started shouting, the appellant fled away. It is also testified by PW-3 that when they went up to the dead body, they saw the dead body of the deceased lying in the paddy field with the light of the torch. According to him, they saw cut injury on the dead body and the knife was still on the neck of the deceased. He further deposed that they reported the incident to the member of the Zila Parishad who immediately apprised the police of the incident over telephone. The Police rushed to the place of occurrence and took away the dead body to the police station. The police seized the knife which was found on the neck of the deceased and the same is exhibited as material Ext-1 whereas the seizure list is exhibited as Ext-1(1). PW-3 is the one who lodged the complaint the very next day. The cross examination of this witness does not disclose anything to falsify his testimony in any material particular. On the contrary, PW 3 fully corroborated the statement of PW 1 in material particulars, namely, (i) on the confession made by the appellant to them that he killed his wife (the deceased); (2) on the report made by them to the Member of the local Zilla Parishad, who immediately informed the police about the incident by telephone. In our opinion, this statement made to PW 3 immediately after the occurrence near the dead body of the deceased, which corroborated the evidence of PW is relevant under the rule of res gestae embodied in Section 6 of the Evidence Act, 1882. This rule is an exception to the rule of evidence that hearsay evidence is not admissible. 6. In our opinion, this statement made to PW 3 immediately after the occurrence near the dead body of the deceased, which corroborated the evidence of PW is relevant under the rule of res gestae embodied in Section 6 of the Evidence Act, 1882. This rule is an exception to the rule of evidence that hearsay evidence is not admissible. 6. In our opinion, this statement made by the appellant to PW 1 immediately after the occurrence near the dead body of the deceased and corroborated by the evidence of PW 3 is also in the nature of extra-judicial confession. The settled law is that the maker of confession can be convicted on the basis of extra-judicial confession. Extra-judicial confession possesses high probative value as it emanates from the person who committed the crime, provided it is free from suspicion. While appreciating the extra-judicial confession, the Court is to consider the relevant factors like:-(a) to whom is made, for example, whether it is made before a person or persons who appear to be unbiased or inimical, (b) the time and place of making it, (c) the circumstances in which it was made, (d) whether and (e) whether confessional statement is found to be voluntary and free from pressure. It must be remembered that there is no rule that the extra-judicial confession is not to be accepted if the witness gives the substance of it and not the actual words. Extra judicial confession made by the appellant before the PW-1 and PW-3 is reliable and corroborated by the evidence of the PW-6. No evidence is adduced by the defense that these witnesses were inimical to the appellant are were biased. Neither is it the case of the defense that the circumstance in which the extra-judicial confession was made by the appellant was suspicious. On the contrary, there is absolutely no reason to disbelieve the version of these witnesses: they are rather natural witnesses and are absolutely trustworthy, and their testimonies can be acted upon. There is nothing to suggest that they are inimical and biased to the appellant. At this stage, we may reproduce the findings of the trial court in this behalf as follows: 24. Now, considering the entire evidence of PWs, I find that the following circumstances appear from the testimony of the PWs--- 1. There is nothing to suggest that they are inimical and biased to the appellant. At this stage, we may reproduce the findings of the trial court in this behalf as follows: 24. Now, considering the entire evidence of PWs, I find that the following circumstances appear from the testimony of the PWs--- 1. PWs went to the place of occurrence at around 8-45 P.M., within a short time after the occurrence, hearing scream of the deceased. 2. PWs found the accused person at the paddy field beside the dead body of his wife with fresh injury on her person. 3. Upon being questioned as to his cause of presence there at such an hour of night at the lonely paddy field the accused told that he killed his wife and the accused warned them not to proceed towards him sensing that he would be apprehended by them. 4. Accused terrorized the PWs raising a sword and threatened them with dire consequences. 5. Immediately after the occurrence the accused absconded. He was arrested on 20-2-08. 7. The findings so made and the inference drawn by the trial court in the foregoing cannot be faulted with in any manner: they are based on circumstantial evidence clinchingly established by the prosecution. It may be noted that the information regarding the commission of the murder of the deceased by the appellant, which took place at around 8.45 PM of 25-9-2003 was immediately brought to the notice of the police who evidently entered the information in the G.D. Entry at about 10.35 P.M. of the same evening vide Ext. 7. The speed with the crime was reported to the police by informant and the investigation itself got commenced on that very night clearly strengthened the case of the prosecution, and there was no room for manipulating evidence. The fact that the appellant had been absconding since the death of incident for about 5 years till the date of his surrender in Court after five years or so is also a relevant fact probabilising the guilty intent of his mind. Such conduct is relevant under the provision of Section 8 of the Evidence Act, 1882. The fact that the appellant had been absconding since the death of incident for about 5 years till the date of his surrender in Court after five years or so is also a relevant fact probabilising the guilty intent of his mind. Such conduct is relevant under the provision of Section 8 of the Evidence Act, 1882. Finally, drawing our attention to the plea taken by the appellant in his examination under Section 313, Cr.P.C., it is argued by the learned amicus curie that as the appellant was at the time of occurrence Tirpura, he could not possibly commit the crime. The plea taken by the appellant is reproduced below: I am totally innocent. At the time of occurrence, I was in the house of Ganesh Pal at Smalon Kalibari Ghat, Dharmanagar (Tripuraa). Prior to 7 months of the occurrence, I had been residing there as a tenant and used to work there as a carpenter. I did not commit the incident. The witnesses have falsely implicated in this case 8. We have carefully examined the plea taken by the appellant. The word alibi is a Latin word and it means "elsewhere". This word is used for convenience when an accused takes recourse to a defense line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime Alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (A) given under the provision is worth reproducing in this context: The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. This burden would not be lessened by the mere fact that the accused has adopted the defense of alibi. This burden would not be lessened by the mere fact that the accused has adopted the defense of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden, it is incumbent on the appellant, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. However, the burden is on the appellant to show that he was somewhere else other than the place of occurrence at the time of the incident. The appellant has to establish his plea of alibi by positive evidence. In the instant case, the plea of alibi has been raised by him for the first time in his examination under Section 313, Cr.P.C. In his cross-examination, he never made any suggestion to this effect. Before acting upon this self-serving statement of the appellant, he is, therefore, required to establish this plea of alibi by positive evidence. Unfortunately, he did not even bother to examine the said Ganesh Pal of Tripura, who according to him, was his landlord, to corroborate his plea that he was residing at his house as his tenant for seven months, and was his house at the time of the incident. In our considered view, in the absence of corroboration, it is difficult to believe that he was in Tripura at the time for the occurrence. Therefore, the plea of alibi stands rejected. 9. Coming now to the nature of injuries sustained by the deceased, the prosecution exhibited the post mortem report and examined PW-4, the Medical Officer, who conducted the post mortem on the dead body of the deceased. The following injuries were found on the body of the deceased- 1) Stab would 3 X 1 X 4 cms. with beveling over right side of neck below angle of the jaw puncturing the carotid vessels underneath. 2. Stab wound 2.5 X 5 X 2 cms on left side and same site. 3. Incised wound in transverse plane front of neck 6 cms. long in lower mid part cutting the skin only. Thorax: Thorax organs showed early decomposition changes with healthy ribs. Abdominal organs also shows early decomposition changes. Scalp found softened. Membrane and brain found softened. Spinal cord not examined. Skull and vertebrae found healthy. 3. Incised wound in transverse plane front of neck 6 cms. long in lower mid part cutting the skin only. Thorax: Thorax organs showed early decomposition changes with healthy ribs. Abdominal organs also shows early decomposition changes. Scalp found softened. Membrane and brain found softened. Spinal cord not examined. Skull and vertebrae found healthy. Opinion: Cause of death was haemorrhage, resulting from the stab wounds. All wounds were ante-mortem and homicidal in nature. 10. There is no dispute about the nature of injuries sustained by the deceased or that the injuries inflicted upon him were sufficient in the course of nature to cause the death of the deceased. Both PW 2 and PW-5 have been declared as hostile witnesses by the prosecution. However, contradictions allegedly found in the statements between the statement of PW-2 and PW-5 recorded by the police and their statement before Court cannot be taken advantage of the defense inasmuch the witnesses were never confronted with their previous statement before the police in accordance with Section 145, Evidence Act, 1882. That apart, the fact that these two witnesses were declared as hostile witnesses cannot destroy the evidence of the remaining witnesses which are otherwise reliable, cogent and consistent throughout. PW-6 is the I.O. of the case, whose evidence are revealing. The nature of injuries sustained by the deceased and the manner in which her body was found and the presence of dagger at the neck of the deceased at the time of the occurrence, have fully corroborated the statement of the prosecution witnesses in material particular. Under the aforesaid circumstances, we do not find any infirmity in the findings of the trial Court in convicting the appellant. Though there are no ocular witnesses, yet the circumstances so proved by the prosecution against the appellant point to the guilt of the appellant. Under the aforesaid circumstances, we do not find any infirmity in the findings of the trial Court in convicting the appellant. Though there are no ocular witnesses, yet the circumstances so proved by the prosecution against the appellant point to the guilt of the appellant. In State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 , the Apex Court reiterated the following propositions of law concerning circumstantial evidence: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 11. The appellant was undoubtedly last seen together with the deceased as proved by the statements of PW 1 and PW 3. The extra-judicial confession made by the appellant to PW 1 and PW 3 does not raise any room for suspicion, and can be acted upon. No explanation was offered by the appellant that as to how he was sitting near the dead body of his wife sustaining fresh injuries when PW 1 and PW 3 came. The appellant threatened PW 1 and 3 not to come near him as otherwise they would face dire consequence. The fact that the appellant had been absconding from his village right after the murder of his wife for about five years or so is an additional circumstance in the chain of circumstances probabilising his guilty intention to murder the deceased. In our considered view, the prosecution has fully satisfied the condition precedents for convicting the appellant on the basis of circumstantial evidence. In other words, the cumulative effect of all the above proved circumstances unerringly point to the guilt of the appellant. Therefore, it is the appellant, and not anyone else, who caused the death of the deceased, who is none other than his own wife. In other words, the cumulative effect of all the above proved circumstances unerringly point to the guilt of the appellant. Therefore, it is the appellant, and not anyone else, who caused the death of the deceased, who is none other than his own wife. In the result, this appeal is devoid of merit and is hereby dismissed. The appellant shall serve out the remaining period of his sentence. The Assam Legal Services Authority will pay Rs. 5,000/- (Rupees five thousand) only to the learned Amicus Curiae as his professional fees. Transmit the L.C. record forthwith. Appeal dismissed.