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2013 DIGILAW 743 (GAU)

Mrinal Sarkar v. State of Assam

2013-10-09

BROJENDRA PRASAD KATAKEY, PRASANTA KUMAR SAIKIA

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JUDGMENT Brojendra Prasad Katakey, J. 1. This appeal is directed against the judgment of conviction dated 28.06.2010 passed by the learned Sessions Judge, Kokrajhar, in Sessions Case No. 78/2009, convicting the appellant under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for a further term of 6 (six) months. Based on the first information report (Ext. 1) lodged on 07.11.2007, by Biswajit Sarkar (PW-1), brother of the deceased, alleging that the accused persons, namely, the appellant herein and his parents in furtherance of a hatched plan, confined his sister Tumpa Sarkar (deceased) in her living room, beat her up, leading to her death, lodged with the Officer-in-Charge of Bhawraguri Outpost, Gossaigaon Police Station Case No. 247/2007 has been registered under Section 302/34 IPC. The investigating agency, thereafter, proceeded to investigate and recorded the statements of the persons acquainted with the facts, under Section 161 Cr.P.C. and also sent the dead body for post-mortem examination, after conducting the inquest. The investigating agency on completion of investigation submitted charge-sheet only against the present appellant under Section 302 IPC. Vide order dated 30.09.2009 the learned Addl. Chief Judicial Magistrate, Kokrajhar, in G.R. Case No. 969/2007, committed the accused-appellant for trial by the Court of Sessions, since the offence alleged is triable by the Court of Sessions exclusively. The learned Sessions Judge, Kokrajhar, then on 03.11.2009, framed charge against the accused-appellant under Section 302 IPC, which when read over and explained to him, he pleaded not guilty and claimed to be tried. Hence the trial commenced. 2. The prosecution in order to bring home the charge framed against the accused-appellant, examined 8 (eight) witnesses, namely, Biswajit Sarkar, first informant, brother of the deceased as P.W. 1; Dr. Jitendra Kr. Nath, who conducted the autopsy and submitted the post-mortem examination report (Ext. 2), as PW-2; Shri Sanjoy Sarkar, another brother of the deceased as PW-3; Shri Kartik Sarkar, another brother of the deceased as PW-4; Nikhil Ch. Sarkar, uncle of the accused-appellant as PW-5; Shri Abhijit Sarkar, another brother of the deceased as PW-6; Shri Gopal Ch. Dutta, a neighbour, as PW-7 and Shri Binanda Basumatary, the Investigating Officer, as PW-8. The FSL report relating to the examination of the viscera has also been proved as Ext. 3. Sarkar, uncle of the accused-appellant as PW-5; Shri Abhijit Sarkar, another brother of the deceased as PW-6; Shri Gopal Ch. Dutta, a neighbour, as PW-7 and Shri Binanda Basumatary, the Investigating Officer, as PW-8. The FSL report relating to the examination of the viscera has also been proved as Ext. 3. The G.D. Entry made by the police on receipt of the information relating to the death of the deceased, prior to lodging of the first information report, has been proved and marked as Ext. 4. The witnesses were duly cross-examined by the defence, who though was given the opportunity to adduce evidence, he, however, did not lead any evidence. The statement of the accused-appellant under Section 313 Cr.P.C. was thereafter recorded. 3. The learned Sessions Judge, upon appreciation of the evidence on record, has convicted the accused-appellant under Section 302 IPC and sentenced him to undergo imprisonment, as noticed above. Hence the present appeal. 4. We have heard Mr. K. Sarma, learned counsel for the accused-appellant and Ms. B. Bhuyan, learned Addl. Public Prosecutor appearing for the State of Assam. 5. The learned counsel appearing for the appellant, referring to the depositions of PWs-5 and 1, namely, Nikhil Ch. Sarkar and Gopal Ch. Dutta and also the deposition of PW-8, namely, Binanda Basumatary, the I.O., has submitted that it is evident therefrom that the room in which the deceased was found to be dead was locked from inside and though those witnesses tried to open the door, they could not do so. It has also been submitted that it is evident from the depositions of those three witnesses that there was only one door in the room, through which the ingress and egress from the room is possible and there was no ventilation and the three windows, one in the front and the two others in the rear, are fitted with the iron rods and hence no one can enter into the room or come out therefrom through the windows. The learned counsel submits that in view of such evidence, the depositions of PWs-1, 3, 4 and 6, who are the close relatives of the deceased, being the brothers, cannot be relied upon for recording the finding that the door was not locked from inside and rather it was opened. The learned counsel submits that in view of such evidence, the depositions of PWs-1, 3, 4 and 6, who are the close relatives of the deceased, being the brothers, cannot be relied upon for recording the finding that the door was not locked from inside and rather it was opened. It has also been submitted that the learned Sessions Judge has committed illegality in recording the conviction under Section 301, IPC, based on the evidence of PW-2 only, namely, the doctor, who has found finger marks on the neck of the deceased, more so, when no investigation, whatsoever, has been conducted by the investigating agency to find out whether the finger marks found on the neck of the deceased are of the accused. The learned counsel submits that it is evident from the depositions of PWs-1, 3, 4 and 6 that they handled the dead body and lift the dead body from the floor and placed it on the bed, during which may be any one of them place their palm on the neck of the deceased, which results availability of the finger marks of a person on one side of the neck of the deceased. The learned counsel submits that in view of the aforesaid evidence, the judgment of conviction recorded by the learned Sessions Judge needs to be interfered with and the accused-appellant is to be set at liberty. 6. Per contra, the learned Addl. P.P. placing reliance on the evidence of PWs-1, 3, 4 and 6 has submitted that it is evident from their depositions that the door was found open. It has also been submitted that PW-2, the doctor, who conducted the autopsy, has also stated in his evidence that he found the finger impression on one side of the neck of the deceased. The learned Addl. P.P., therefore, submits that taking into account of the evidence of those witnesses coupled with the evidence of PWs-5 and 7, the learned Sessions Judge has rightly convicted the accused-appellant under Section 302 IPC and sentenced him as aforesaid. 7. We have considered the submissions advanced by the learned counsel for the parties and also perused the evidence available on record. 8. The death of the deceased and it is homicidal in nature have been proved by the doctor i.e. PW-2, who conducted the postmortem examination (Ext. 2). 7. We have considered the submissions advanced by the learned counsel for the parties and also perused the evidence available on record. 8. The death of the deceased and it is homicidal in nature have been proved by the doctor i.e. PW-2, who conducted the postmortem examination (Ext. 2). The doctor in his evidence has narrated the injuries found on the person of the deceased. Such injuries have not been challenged by the accused-appellant. 9. The pertinent question which requires determination by this Court is, therefore, whether the accused-appellant is the author of the crime. As noticed above, the prosecution in order to bring home the charge, examined 8 (eight) witnesses, out of whom PWs-1, 3, 4 and 6 are the brothers of the deceased. While PW-5 is the uncle of the accused, PW-7 is an independent witness, who is a neighbour. PWs-1, 3, 4 and 6 in their depositions have stated that on receiving the information about the death of their sister, they hired a vehicle and came to the house of the sister and found the door of the sister's room, where the sister's body was lying, open. They have also stated that they found the body on the floor of the room with a sari tied around the neck and they lifted the body from the floor and placed on the bed available in the room. These witnesses further have stated that there is only one door in the room, apart from three windows, which are secured by the iron rods. The prosecution story of the door being open, however, has not been supported by PWs-5 and 7. PW-5 in his evidence has stated that immediately on receiving the information, he came to the house of the deceased as well as of the accused-appellant and saw, through a window open, that the deceased was lying on the floor with a sari wrapped around her neck and when he tried to open the door, he could not do so, as the door was locked from inside. The said version has been supported by an independent witness, namely, Gopal Ch. Dutta (PW-7), who is a neighbour, who has deposed that hearing the cry he immediately came to the place of occurrence and saw the deceased lying on the floor, through a open window, who has the sari tied around her neck. The said version has been supported by an independent witness, namely, Gopal Ch. Dutta (PW-7), who is a neighbour, who has deposed that hearing the cry he immediately came to the place of occurrence and saw the deceased lying on the floor, through a open window, who has the sari tied around her neck. This witness has also stated that he also tried to open the door but he could not do so because the door was bolted from inside. The Investigating Officer, Binanda Basumatary (PW-8), in his evidence has stated that prior to lodging of the F.I.R. (Ext. 1) by the PW-1, he received an information relating to the incident and accordingly G.D. Entry No. 90 dated 07.11.2007 was recorded at 2 O'clock night and thereafter he visited the place of occurrence, saw the person lying on the floor of a room through a window and when he tried to open the door, he could not do so, as it was bolted from inside. This witness has further stated that, thereafter, on receiving the written information, he again visited the place of occurrence and found the door open. PWs-5 and 7 in their evidence have also stated that though they found the door was bolted from inside and could not be opened, PWs-1, 3, 4 and 6 after their arrival broke open the door, entered the room, lifted the dead body of the deceased from the floor and place it on the bed inside the said room. 10. PW-2 i.e. Dr. Jitendra Kr. Nath, who conducted the post-mortem examination, has also deposed that he found the finger mark on one side of the neck of the deceased. 11. Having regard to the evidence of the independent witnesses, namely, PW-7 and PW-8, coupled with the evidence of PW-5, as discussed above, the version of PWs-1, 3, 4 and 6, in so far as it relates to the deposition that the door was found open, cannot be accepted. That apart, it is being in the evidence of PWs-1, 3, 4 and 6 themselves that they lifted the body from the floor and place it on the bed, the finger marks found on one side of the neck of the deceased may be because of the placement of hand of any of those persons on the neck while lifting the body from the floor to the bed. The prosecution also did not make any attempt to prove that the finger marks found on one side of the neck of the deceased, match with the fingerprint of the accused-appellant. 12. In view of what has been discussed above, we are of the view that the prosecution could not bring home the charge framed under Section 302 IPC against the accused-appellant and hence the judgment of conviction dated 28.06.2010 recorded by the learned Sessions Judge, Kokrajhar, is set aside. The accused-appellant, namely, Mrinal Sarkar, is set at liberty, if not wanted in any other case. 13. Hence the appeal stands allowed. Registry is directed to send down the records. Appeal allowed