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2013 DIGILAW 702 (GAU)

Anukul Mandal v. State of Assam

2013-09-25

M.R.PATHAK, T.VAIPHEI

body2013
JUDGMENT T. Vaiphei, J. 1. This criminal appeal is directed against the judgment dated 17-4-2009 passed by the learned Sessions Judge, Sivsagar, Assam convicting the appellant under Section 302 IPC and sentencing him to undergo life imprisonment with a fine of ` 1,000/- and, in default thereof, to suffer rigorous imprisonment for three years. The facts giving rise to this appeal may be noticed immediately. According to the prosecution, on 30-6-2006, an FIR was lodged by one Mantu Chetia with the Nazira Police Station alleging that on that day at about 8-30 AM, the appellant, who is his brother-in-law, had done to death his friend, Prasanta Barho ("the deceased") in the bedroom of his (Mantu) house by means of dao while both of them were on a visit to his house. On receipt of the FIR, the Officer-in-charge of Nazira P.S. registered a regular case being Nazira P.S. Case No. 74/2006 U/s. 302 IPC and thereafter took up investigation of the case by himself. After investigation of the case, the police charge-sheeted the appellant under Section 302 IPC to stand the trial. On commitment, the learned Sessions Judge framed the charge against the appellant U/s. 302 IPC, who pleaded not guilty to the charge and claimed to be tried. In the course of trial, the prosecution examined as many as eleven witnesses and exhibited documents and materials to bring home the charge against the appellant. After prosecution case was closed, the appellant was examined under Section 313, Cr.P.C., who denied all the allegations. On the contrary, he pleaded that he is innocent and that he had gone to the house of his father-in-law (the deceased) to bring some herbal medicines when the neighbours of the deceased, out of suspicion, caught and tied him to a tree and implicated him in the case. No evidence was, however, adduced by him in his defence. After hearing the learned Public Prosecutor and the learned defence counsel, the trial court passed the impugned judgment of conviction and sentence. 2. Assailing the impugned judgment of conviction, Mr. No evidence was, however, adduced by him in his defence. After hearing the learned Public Prosecutor and the learned defence counsel, the trial court passed the impugned judgment of conviction and sentence. 2. Assailing the impugned judgment of conviction, Mr. P. Kataki, the learned counsel for the appellant, argues that in a case such as this appeal, based on circumstantial evidence, and where there was no ocular witness, the trial court was under obligation to consider as to whether the circumstances, cumulatively, taken together 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 appellant and none others: this vital legal point has been completely overlooked by the trial court in returning a verdict of guilt against the appellant. He next contends that no reliable evidence could be produced by the prosecution to prove that the dao in question was seized at the instance of the appellant: though the material Ext. 1, namely, the dao was alleged to have been seized from the possession of the appellant, yet PW 1, PW PW 3, PW 5, PW 6 and PW 8, in their evidence, did not corroborate each other as to from whom the same was actually seized: the seizure of the dao from the possession of the appellant is, therefore, highly doubtful. The learned counsel further submits that though PW 1 stated in his examination-in-chief that one of his uncle's son whose name he had forgotten had informed him that the appellant had caused the death of the deceased, his uncle's son was never examined by the prosecution and, as such, the testimony of PW 1 is reduced to hearsay evidence and is not admissible in law. Finally, he contends that there is material improvement/embellishment in the statement of PW 4 inasmuch as her statement in Court that when she rushed out of her house, she saw the appellant getting out of the house of PW 1 with a dao in his hand, was never stated to the police during investigation. According to the learned counsel, such omission amounts to major contradiction and an improvement in the case of the prosecution, which could not have been relied upon by the trial court for convicting the appellant. According to the learned counsel, such omission amounts to major contradiction and an improvement in the case of the prosecution, which could not have been relied upon by the trial court for convicting the appellant. As the prosecution case is highly doubtful, argues the learned counsel, the conviction of the appellant cannot be sustained in law, and is liable to be set aside. 3. On the other hand, Mr. D. Das, the learned Additional Public Prosecutor appearing for the State of Assam, supports the impugned judgment and submits that no interference is called for. According to him, the evidence of PW 4 clearly established that the appellant was last seen together with the deceased as proved by the statement of PW 2, who categorically testified that when she left to the nearby pond to have bath, the appellant and the deceased were at their house and that after she returned home, she found the deceased lying dead in their bed-room and the appellant standing at the back of their house. As there was no explanation coming from the appellant as to in what manner and under what circumstances the deceased had met his end and as to how the dead body of the deceased was lying near him, the inference is irresistible and the conclusion inescapable that it was none but the appellant, who caused the death of the deceased. It is further submitted by the learned Additional Public Prosecutor that from the evidence of the prosecution witnesses, the prosecution has clinchingly established several circumstances, which, taken cumulatively, form a chain so complete that they unerringly point towards the guilt of the appellant. He, therefore, strenuously urges this Court to dismiss the appeal, which is bereft of merit. 4. We have given our anxious consideration to the submissions advanced on behalf of the counsel appearing for the rival parties. We have also carefully gone through the impugned judgment and other materials brought on record. There is no dispute at the bar about the nature of injuries sustained by the deceased and the cause of his death. Therefore, this is all about who-dun-it. Undoubtedly, there is no ocular witness to the incident, and the prosecution case is, therefore, based on circumstantial evidence. There is no dispute at the bar about the nature of injuries sustained by the deceased and the cause of his death. Therefore, this is all about who-dun-it. Undoubtedly, there is no ocular witness to the incident, and the prosecution case is, therefore, based on circumstantial evidence. It is a well settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should 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 of 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. 5. Before proceeding further, we may note that the prosecution relied on the following circumstantial evidence to bring home the charge against the appellant: (1) The appellant, who is the brother-in-law of the informant (PW 1) had come to the house of PW 1 along with the deceased, who is stated to be his friend, before the incident of murder took place; (2) At the time of occurrence, the appellant and the deceased were the only persons who were found at the house of PW 1; (3) The occurrence took place in the morning of 30-6-2006, when none from the family of PW 1 was present; (4) The dead body of the deceased with multiple cut injuries was found lying in a pool of blood at the bedroom of PW 1; (5) Immediately after the occurrence, the appellant was seen going out of the house of PW 1 with a dao in his hand; (6) The weapon of offence, namely, the dao (Mat. Ext. 1) was recovered by the police from the possession of the appellant; (7) Immediately after the incident, the neighbouring caught the appellant at the place of occurrence and tied him to a tree standing at the courtyard of the house of PW 1. 6. Ext. 1) was recovered by the police from the possession of the appellant; (7) Immediately after the incident, the neighbouring caught the appellant at the place of occurrence and tied him to a tree standing at the courtyard of the house of PW 1. 6. The first question for consideration is whether the deceased was last seen together with the appellant immediately before the murder took place? PW 2 is the wife of PW 1, whose sister married the appellant. According to PW 2, at the time of the occurrence, she was on the bank of their pond and her husband was ploughing in the field; that at that time, the appellant and the deceased were sitting at their house and that she went to the nearby pond to have a bath. She further deposed that on returning home, she found the deceased lying dead in their bed-room and the appellant standing on the back of their house and that on seeing the dead body, she raised alarm and called her mother-in-law Japani Chetia (PW 3), who arrived at their home. This witness was thereafter declared as hostile witness by the prosecution. In her cross-examination by the defense, she, however, disclosed that when she returned home from the pond, she found her father-in-law sitting in the drawing room and that her father-in-law could move around. PW 3 in her deposition stated that the incident took place at about 8 AM when she was at home and that on hearing the alarm of PW 2 that somebody was killed, she rushed to their courtyard and that the house of PW 1 could seen from their courtyard, but she did not go to the house of PW 1 to see the dead body of the deceased. This witness was then declared as hostile witness. The statement of PW 2 that PW 3 arrived at their home after she called her is clearly contradicted by PW 3 herself when she said that she did not go to the house of PW1 (PW2). 7. This witness was then declared as hostile witness. The statement of PW 2 that PW 3 arrived at their home after she called her is clearly contradicted by PW 3 herself when she said that she did not go to the house of PW1 (PW2). 7. PW 1, who is the husband of PW 2, deposed that while he was ploughing in the field, he was informed by one of his uncle's son, whose name he did not remember; that the appellant, who happened to be the husband of his sister, had done to death one person and that he rushed to his house where he found the appellant being tied to a tree in their courtyard and that when he entered his dwelling house, he found the deceased lying on the floor dead with cut injuries on his neck and back. He then lodged an FIR to that effect. In his cross-examination, he stated that when he reached home, there were about 30 persons at the place of occurrence and that his mother was active at the time of the occurrence. In his cross-examination, he disclosed that when he arrived at his house on receipt of the information about the occurrence, he found his ailing father at home. Though he initially denied in the cross-examination that his father could move around at the time of occurrence, he subsequently admitted that his father was capable of movement. 8. PW 4 testified that on the date of occurrence, she heard PW 2 calling her mother-in-law out that somebody had been stabbed at their house and that when she rushed out of her house at once and saw the appellant running out of the house of PW 1 with a dao in his hand. She further testified that the neighbours had assembled at the place of occurrence and tied the appellant to a tree standing on the courtyard of their house and that after sometime the police at the place of occurrence. She, however, deposed that she did not go to the house of PW 1 to see the dead body of the deceased, who was not known to her earlier. In her cross-examination, she denied that she did not state before the police that she saw the appellant coming out of the house of PW 1 carrying a dao in his hand. In her cross-examination, she denied that she did not state before the police that she saw the appellant coming out of the house of PW 1 carrying a dao in his hand. The I.O. of the case, who was examined as PW 9, contradicted this testimony of PW 4 by stating that she did not state to him that she saw the appellant coming out with a dao in his hand from the bed room of PW 1. 9. PW 5 is the VDP Secretary of the locality. He admitted in his cross-examination that he did not see the occurrence and that he did not state to the police that PW 1 reported to him the appellant stabbed the deceased at his house (PW 1). Coming now to the evidence of PW 6, all that he disclosed is that the police arrested the appellant from the courtyard of the house where the incident took place. PW 8 is the witness who accompanied PW 5 along with the police to the place of occurrence where, he deposed, the dead body of the deceased lying in a pool of blood by the side of the bench which could accommodate some two persons in the room of the house of PW 1. He testified that he saw the appellant at the house of PW 1 and that the police arrested him and took him to their vehicle. In his cross-examination, he deposed that at the time of occurrence, the appellant was sitting at the house of the elder brother of PW 1. 10. As already noted, PW 2 and PW 3 have been declared hostile by the prosecution. However, merely because a witness is declared hostile, his evidence cannot be discarded: such evidence has to be closely examined and if corroborated by other available evidence, it has to be accepted. The legal position is reiterated by the Apex Court in State of Rajasthan v. Bhawani, (2003) 7 SCC 291 in the following manner: 10. The fact that the witness was declared hostile by the Court at the request of the prosecuting counsel and he was allowed to cross-examine the witness, no doubt furnishes no justification for rejecting en bloc the evidence of the witness. But the court at least has to be aware that prima facie, a witness who makes different statements at different times has no regard for truth. But the court at least has to be aware that prima facie, a witness who makes different statements at different times has no regard for truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to the same. The court should be slow to act on the testimony of such a witness and, normally, it should look for corroboration to his evidence. The High Court has accepted the testimony of the hostile witnesses as gospel truth for throwing overboard the prosecution which had been fully established by the testimony of several witnesses, which was of unimpeachable evidence. The approach of the High Court in dealing with the case, to say the least, is wholly fallacious. 11. Appreciating the evidence of PW 2 against the aforesaid legal position, there can be no doubt that her statement that when she left for the nearby pond, both the appellant and the deceased were sitting in their house cannot be assailed in any manner. Her statement that when she returned home, she found the deceased lying dead in their bedroom is also quite credible. However, her statement that she found the appellant standing on the back of their house requires closer scrutiny in the light of the evidence of other prosecution witness. PW 1, however, deposed that on reaching home, he found the appellant being tied to a tree in the courtyard of their dwelling house. PW 4, in her deposition, testified that when she rushed out of her house just after hearing the shouting of PW 2 calling out to her mother-in-law stating that somebody had hacked the deceased, she saw the appellant running out of the house of PW 1 with a dao in his hand and that the neighbours assembled at the place of occurrence and tied the appellant to a tree standing on the courtyard of their house. She, however, admitted that she did not go to the house of PW 1. From her cross-examination, it is in evidence that a pond intervened between her house and the house of PW 1 at a distance of about 300 yards. She, however, admitted that she did not go to the house of PW 1. From her cross-examination, it is in evidence that a pond intervened between her house and the house of PW 1 at a distance of about 300 yards. It is difficult to understand as to how she could identify the appellant running out of the house of PW 1 with a dao in his hand at a distance of some 300 yards where she claimed to be seeing him, more so, when she said that she did not go to the house of PW 1. Furthermore, PW 9, who is the IO of the case, in his testimony categorically contradicted her statement by stating that she did not state to him that she saw the appellant coming out with a dao in his hand from the bed room of PW 1. Her statement in Court that she saw the appellant coming out of the house with a dao in his hand is, therefore, a first time statement in Court is an improvement/embellishment, which was never stated by her to the police. In our opinion, such an omission is a material omission amounting to major contradiction, and PW 4 is evidently seeking to make an improvement in the course of her deposition. Under the circumstances, the credibility and the trustworthiness of PW 4 is highly suspect. 12. This then takes us to the statement of PW 1, who deposed that on reaching home, he found the appellant being tied to a tree in the courtyard of their house. He also deposed that when he entered their dwelling house, he found the deceased lying death on the floor with cut injuries on his neck and back. PW 8, however, testified in his cross-examination that he found the appellant sitting in the house of the elder brother of PW 1, and not at the house of PW 1. He did not say anything about the appellant being tied to a tree even though he arrived with PW 5 who had deposed that the neighbouring people tied the appellant to a tree standing outside the house. PW 6, however, deposed that the police arrested the appellant from the courtyard of the house where the occurrence took place. He did not say anything about the appellant being tied to a tree even though he arrived with PW 5 who had deposed that the neighbouring people tied the appellant to a tree standing outside the house. PW 6, however, deposed that the police arrested the appellant from the courtyard of the house where the occurrence took place. PW 9, who is the IO of the case, revealed in his cross-examination that he found the appellant tied to a tree by the public. Moreover, both PW 1 and PW 2 have disclosed, in the course of their respective cross-examinations, that when the incident took place, the late Tulsi Chetia, the father of PW 1, was also present at their house and that he could move around. The presence of the father of PW 1 (now deceased), who was never examined, has created a new dimension to the case of the prosecution. As already noted, in a case based on circumstantial evidence, the circumstances, taken cumulatively, should form a chain so complete that the is no escape from the conclusion that within all human probability the crime was by the accused and none else. The prosecution did not explain as to why the father of PW 1, who was also present at the time of the incident and at the place of occurrence, was never examined in the course of investigation or in the course of trial. No attempt was made by the prosecution to rule out the possibility of the father of PW 1 the possibility of his committing the murder. This is all the more important because it is now revealed that it was not only the appellant who was last seen together with the deceased but the father of PW 1 was also last seen together with the deceased at the same time and place. Therefore, it is no longer certain that the appellant alone was last seen together with the deceased before his death. 13. Coming now to recovery of the dao (Material Ext. 1), the case of the prosecution is that the same was seized from the possession of the appellant vide the seizure list at Ext. 3. The seizure was claimed to be witnessed by one Bhagen Gogoi (PW 5) and Dipankar Chetia (PW 6). Earlier, PW 5 had testified that the neighbouring people tied the appellant outside the house to a standing tree. 3. The seizure was claimed to be witnessed by one Bhagen Gogoi (PW 5) and Dipankar Chetia (PW 6). Earlier, PW 5 had testified that the neighbouring people tied the appellant outside the house to a standing tree. He also deposed that the police seized the dao from the hand of the appellant. However, in his cross-examination, he changed his testimony by stating that the police did not seize Mat Ext 1 from the hand of the appellant. PW 6 also deposed in his examination-in-chief that the police arrived at the place of occurrence and seized Mat. Ext. 1 from the possession of the appellant. However, in his cross-examination, he deposed that Mat. Ext. 1 was seized by the police near the place where the appellant was tied around a tree. He also admitted in his cross-examination that he did not state to the police that the dao was seized out of the possession of the appellant. PW 1, who rushed to the place of occurrence just after the incident, admitted in his cross-examination that he did not know wherefrom the police seized the dao and that when it was seized, it did not contain any blood stain. PW 8, in his cross-examination, testified that police recovered the dao from above the coop belonging to Montu's aunt and seized it: the coop was situated behind the house which was 2 and half 'nal' (One 'nal'=8cubits) away from the house of PW 1. The IO of the case (PW9) deposed that he found the appellant tied up to a tree by the public; that he seized the 'kopidao' (Mat Ext 1) as shown to by the appellant, that was after he released him from the public, but admitted that he did not mention that in the seizure list. Thus, from the evidence of PWs 5, 6, 8, 9 and 1, it is seen that there was no unanimity among them as to the manner in which and from whom or where the dao was actually seized by the police. Moreover, though the dao, which was alleged to have been used for inflicting multiple injuries upon the deceased, was seized just after the incident, it, curiously, did not have any blood stain in it. Moreover, though the dao, which was alleged to have been used for inflicting multiple injuries upon the deceased, was seized just after the incident, it, curiously, did not have any blood stain in it. In a case based on purely circumstantial evidence, it is the duty of the prosecution to clinchingly prove that the weapon of offence was recovered from or at the instance of the accused. In our opinion, the evidence regarding the recovery of the dao from the possession of or at his instance is highly doubtful. True, the appellant in his examination under Section 313, Cr.P.C. gave different versions as to how he was found near the dead body of the deceased just after the occurrence. Initially, he stated that he was suffering from some disease and had gone to the house of his father-in-law to have some herbal medicine. But, subsequently, he changed his version by stating that he went there to enquire about the occurrence and that finding him there, the neighbouring people, out of suspicion, caught him and tied him to a tree. The law in this behalf is already settled by the Apex Court. If any decision is necessary, we cite the decision of the Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 . This is what the Apex Court said: The prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a court. There is vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Before a false explanation or false plea is taken by the accused can be used as an additional link to the chain of circumstantial evidence, the following essential conditions must be satisfied: (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstances points to the guilt of the accused with reasonable definiteness, and (3) the circumstances is in proximity to the time and situation. In the present case, the High Court has taken a completely wrong view of law in holding that even though the prosecution case may suffer from serious infirmities, it could be reinforced by additional link in the nature of false defence in order to supply the lacuna and has committed a fundamental error of law. Since two views are clearly possible in the present case, the question of defence being false does not arise and the argument of the High court that the defence was false does not survive. 14. In the instance case, the following circumstances, namely (i) the case of the prosecution that at the time of occurrence, only the appellant and the deceased were present at the house of PW 1 is negated by the presence of the late Tulsi Chetia, father of PW 1, who was alive at that time and was at the house: the prosecution did not adduce any evidence to rule out the possibility of his being the perpetrator of the crime after it has been established that he was also present at the place of occurrence at the time of the incident (PW 2 in her cross disclosed that when she returned home from pond, she found her father-in-law sitting in the drawing room and that he could move around); (ii) the case of the prosecution that immediately after the occurrence, the appellant was seen getting out of the house of PW 1 with a dao in his hand, is disproved by PW 9 in his cross-examination by admitting that PW 4 did not state to him that she saw the appellant coming out with a dao in his hand from the bedroom of PW 1; (iii) the prosecution has failed to satisfactorily prove that the dao was seized from the possession or at the instance of the appellant as evidenced from the contradictory statements of PWs 5, 6, 8, 9 and 1; (iv) though multiple injuries were found to be inflicted upon the deceased, yet no blood stain was found on the dao and (v) the place where the body of the deceased was found or murdered is also not clearly established by the prosecution witnesses. In our considered view, the aforesaid circumstances, taken cumulatively, do not form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellant and none else. It is true that the appellant could have been the author of the crime, but then that is in the realm of possibility, suspicion, surmise and conjecture. We don't convict an accused on mere suspicion or on possibility. After all, the law of the land is that suspicion, howsoever grave it may be, cannot take the place of proof. In the final analysis, if the question is whether there are grounds for grave suspicion that the appellant is guilty of the charge, then the answer must be in the affirmative. However, if the test to be applied is whether the prosecution has proved its case beyond reasonable doubt that the appellant is guilty of the charge, our answer, albeit reluctantly, is a clear no with a capital 'n'. In other words, two views on the guilt of the appellant are possible. In this view of the matter, we think it to be highly unsafe to convict the appellant. In the view that we have taken, the impugned judgment of conviction and sentence cannot be sustained in law. The result of the foregoing discussion is that this appeal succeeds. We set aside the judgment dated 17-4-2009 passed by the learned Sessions Judge, Sivsagar in Sessions Case No. 63 (S-S) of 2007 convicting the appellant under Section 302 IPC and sentencing him to life imprisonment. The appellant is, therefore, acquitted and is set at liberty forthwith unless he is wanted in connection with some other case. Transmit the LC record forthwith.