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2014 DIGILAW 1018 (GAU)

Sanjoy Bhuyan v. State of Assam

2014-11-26

C.R.SARMA, NISHITENDU CHAUDHURY

body2014
Judgment C.R. Sarma, J. 1. Heard Mr. R.K. Bharali, learned Amicus Curiae, appearing for the appellant. Also Heard Mr. K.A. Mazumdar learned Addl. Public Prosecutor, Assam, appearing for the State respondent. Perused the records. This appeal is directed against the judgment and order, dated 08.03.2011, passed by the learned Addl. Sessions Judge (FTC), Sivasagar in Sessions Case No. 145 (S-S)/2009 (G.R. Case No. 537/2009, corresponding to Nazira P.S. Case No. 50/2009), under Sections 302/201 of the Indian Penal Code, 1860 (for short IPC). 2. By the impugned judgment and order, the learned Addl. Sessions Judge (FTC), Sivasagar convicted the accused-appellant for the offence under Section 302 IPC and sentenced him to suffer imprisonment for life and pay fine of Rs. 5,000/- in default, suffer simple imprisonment for another period of 6 (six) months. The appellant has also been convicted under Section 201 IPC and sentenced him to suffer rigorous imprisonment for 5 (five) years and pay fine of Rs. 2,000/- in default suffer S.I. for another period of 2 (two) months. 3. Aggrieved by the said conviction and sentence, the appellant has preferred this appeal from the jail. There being none to represent the appellant, Mr. R.K. Bharali, learned counsel, has been engaged by this court, as Amicus Curiae, to represent the appellant. 4. The prosecution case, in brief, is that the appellant and his brother Deben Bhuyan (hereinafter called the deceased) lived together in the same house and his brother i.e. the deceased, sometimes, used to leave the house for a certain period. Noticing his absence, for a long period, Mr. Shah Jamal Ali, Secretary of VDP of Nimtila Village, asked the appellant regarding the whereabout of the deceased and on being so asked the appellant replied that the deceased had gone somewhere. 5. However, the said Secretary of VDP (PW 1), alongwith the appellant, went to Nazira Police Station to lodge a missing report. On being questioned by the Officer-in-Charge, the appellant confessed that he had killed his brother i.e. the deceased and buried his dead body in a pond, in his compound. Subsequently, on being led by the appellant, the dead body of the deceased was recovered from the said pond. 6. PW 1 (Mr. Shah Jamal Ali) lodged an FIR (Ext. 1) with the police and the police after registering a case, under Section 302/201 IPC, launched investigation into the matter. 7. Subsequently, on being led by the appellant, the dead body of the deceased was recovered from the said pond. 6. PW 1 (Mr. Shah Jamal Ali) lodged an FIR (Ext. 1) with the police and the police after registering a case, under Section 302/201 IPC, launched investigation into the matter. 7. During the course of investigation, the police prepared inquest report (Ext. 2), sent the dead body of the deceased for postmortem examination, arrested the accused-appellant and examined the witnesses. 8. At the close of investigation, police submitted the charge sheet, under Section 302/201 IPC against the appellant. The offence, being exclusively triable by the court of sessions, the learned Chief Judicial Magistrate, Sivasagar committed the case to the court of Sessions, on 10.08.2009. The learned Sessions Judge, Sivasagar framed charges, under Sections 302/201 IPC. The charges were read over and explained to the accused-appellant, to which he pleaded not guilty. 9. In order to prove its case, the prosecution examined as many as 13 witnesses, as PWs, including the Medical Officer (PW12), who performed the autopsy of dead body of the deceased and the Investigating Officer (PW 13). 10. After examination of all the prosecution witnesses, the accused-appellant was examined, under Section 313 Cr.P.C. During his examination, under Section 313 Cr.P.C., the accused-appellant stated that due to fear of police, he had falsely stated that he killed his brother i.e. the deceased and buried his dead body in the pond situated in his compound. He admitted that the dead body was recovered from his compound. 11. The appellant i.e. the accused, while making the statement under Section 313 Cr.P.C. also stated, that following a quarrel with the deceased, he had pushed the deceased causing him to fall down and that he had hurled stone at him. The accused stated that the deceased died out of fear. He also stated that he had buried the dead body in the compound. He further stated that, on being shown by him, police recovered the dead body of the deceased from the compound of the appellant. The accused clearly stated that he did not, intentionally kill his brother. The accused declined to adduce defence evidence. 12. Considering the evidence, on record, the learned Additional Sessions Judge, FTC, Sivasagar convicted the accused appellant and sentenced him, as indicated above. Hence this appeal. 13. Mr. The accused clearly stated that he did not, intentionally kill his brother. The accused declined to adduce defence evidence. 12. Considering the evidence, on record, the learned Additional Sessions Judge, FTC, Sivasagar convicted the accused appellant and sentenced him, as indicated above. Hence this appeal. 13. Mr. R.K. Bharali, learned Amicus Curiae, appearing for the appellant, has submitted that there is no substantive evidence against the appellant and that the prosecution failed to establish beyond, all reasonable doubt, that the appellant had caused the death of the deceased. It is also submitted that the dead body of the deceased, which was recovered from the compound of appellant, was found in decomposed stage and that the same was not identifiable. Therefore, it is submitted that there is no convincing evidence to show that the said dead body belonged to the deceased i.e. the elder brother of the appellant. 14. The learned Amicus Curiae has also submitted that the statement made by the appellant, leading to discovery of the dead body, cannot be treated as substantive evidence to base the conviction. 15. Referring to the statement, made under Section 313 Cr.P.C., the learned Amicus Curiae has submitted that the appellant had stated that, due to fear of the police, he had falsely stated that he had caused the death of the deceased. 16. In view of the above, learned Amicus Curiae has submitted that the impugned conviction and sentence aforesaid are not maintainable and that the appellant is entitled to be acquitted. 17. Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, Assam, appearing for the respondent, supporting the impugned conviction and sentence aforesaid, has submitted that the recovery of the dead body of the deceased from the compound of the appellant, at his instance, is sufficient circumstantial evidence to show that the appellant was the perpetrator of the crime. It is also submitted that the admission made by the appellant, coupled with the said circumstantial evidence, sufficiently proved that the appellant had committed the murder of the deceased. 18. The learned Addl. Public Prosecutor has submitted that the learned Addl. Sessions Judge (FTC) Sivasagar committed no error and illegality by convicting and sentencing the accused-appellant and as such the impugned conviction and sentence need no interference. 19. Having heard the learned counsel, appearing for both the parties, we have carefully perused the evidence, on record. 18. The learned Addl. Public Prosecutor has submitted that the learned Addl. Sessions Judge (FTC) Sivasagar committed no error and illegality by convicting and sentencing the accused-appellant and as such the impugned conviction and sentence need no interference. 19. Having heard the learned counsel, appearing for both the parties, we have carefully perused the evidence, on record. Admittedly, there is no direct evidence regarding involvement of the appellant. The informant, who was Secretary of the VDP of Namtila village, deposing as PW 1, stated that, on being asked by the Officer-in-Charge, the appellant had confessed that he had killed his brother and buried the dead of the deceased in the pond behind their courtyard. The said statement, being made during the custody with the police, is hit by Section 24 of the Evidence Act and as such the same can't be acted upon. 20. In his cross examination, PW 1 further stated that, initially, he came to know about the involvement of the appellant from a secret source and that one Zarina Begam had told him about the incident. He further stated that the said Zarina Begom came to know about the incident from Smti Lilabati i.e. the wife of the deceased. In our considered opinion, Ms. Zarina Begom and Smti Lilabati were the vital witnesses to reveal the truth, but the prosecution failed to examine the said two witnesses. Withholding of such vital witnesses raises doubt about the veracity of the prosecution version, more particularly, the statement made by PW 1. 21. The other witnesses i.e. the PW 2 (Sri Nakul Rajgarh), PW 3 (Sri Jadu Gogoi), PW 4 (Sri Balak Bhuyan), PW 5 (Mr. Sahidul Ali), PW 6 (Sri Puran Lal Ghatowar), PW 7 (Mr. Putul Ahmed), PW 8 (Sri Cheniram Tanti), PW 9 (Sri Rajen Bawri) and PW 10 (Mr. Abdul Hasim) appeared in the place of occurrence i.e. the place from wherefrom the dead body of the deceased was recovered, after recovery of the dead body and they stated that the dead body was recovered from the compound of the appellant. PW 7 clearly stated that the dead body was not identifiable. The Medical Officer (PW 12), who performed the post mortem examination, stated that the dead body was found in a peculiar stage of decomposition and that the organ of the dead body could not be identified. PW 7 clearly stated that the dead body was not identifiable. The Medical Officer (PW 12), who performed the post mortem examination, stated that the dead body was found in a peculiar stage of decomposition and that the organ of the dead body could not be identified. The said witness opined that the right and the left legs were detached from the body. The Medical Officer further opined that the skull of the deceased was found in a fractured condition at the right side and it could not be ascertained as to whether the injury was ante mortem or post mortem. Therefore, the said injury, found on the skull of the deceased, cannot lead to the conclusion that the same was caused of the death of the deceased. 22. The Executive Magistrate (PW 11), who performed autopsy, on the dead body of the deceased, stated that due to decomposition of the deadly body, the mark of injury could not be ascertained and that the dead body was found in a decomposed state. 23. From the above discussed evidence, it appears that the dead body found from the compound of the appellant was not identifiable. Therefore, it is hardly believable that the dead body, found in the compound of the appellant, was the dead body of the deceased i.e. the brother of the appellant. 24. In view of the above, considering the entire aspect of the matter we find that the prosecution failed to establish, beyond all reasonable doubt, that the appellant had caused death of the deceased. 25. In our considered opinion, the impugned conviction and sentenced are not maintainable and accordingly, the appeal is allowed. We set aside and quash the impugned judgment and order of conviction and sentence. The appellant is acquitted and he be set at liberty forthwith, if not required in connection with any other case. 26. Before parting with this judgment, we acknowledge, the assistance rendered by Mr. R.K. Bharali, learned Amicus Curie and order that an amount of Rs. 7,000/- (Rupees seven thousand) only be paid to the learned Amicus Curiae as his remuneration by the State. Return the LCR.