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2014 DIGILAW 535 (GAU)

SWAPAN RABIDAS @ JITU v. STATE OF ASSAM

2014-05-19

B.P.KATAKEY, P.K.SAIKIA

body2014
Judgment Katakey, J. This appeal is directed against the judgment of conviction dated 19.02.2011 passed by the learned Addl. Sessions Judge(FTC), Cachar at Silchar, in Sessions Case No.88/2009, convicting the accused 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 undergo rigorous imprisonment for a further period of 3(three) months. 2. Based on the first information report lodged by Ramsurat Rabidas (PW-4), father of the victim, on 23.08.2002, with the Officer-in-Charge of Tarapur Police Out Post, alleging that his daughter Rina Rabidas (deceased), who was given marriage to the appellant and was pregnant for 5(five) months, is found dead in the appellant’s house, who used to torture his daughter frequently, G.D. Entry No.430, dated 23.08.2002 was initially registered in the Out Post and thereafter Silchar P.S. Case No.1145/2002 under Section 302/34 IPC was registered against the present appellant as well as Sri Hira Rabidas, Sri Ratan Rabidas, Sri Paresh Rabidas, Sri Thakur Rabidas and Sri Swapan Rabidas. During investigation the police visited the place of occurrence, got the inquest done, recorded the statements of the witnesses who are acquainted with the facts and circumstances of the case under Section 161 Cr.P.C. and sent the dead body for post mortem examination. On completion of investigation charge-sheet under Section 302/34 IPC was filed against the present appellant as well as Sri Hira Rabidas, Sri Ratan Rabidas and Sri Paresh Rabidas. The case being exclusively triable by the Court of Sessions, the learned Addl. Chief Judicial Magistrate, Cachar at Silchar, vide order dated 20.06.2009 sent the accused persons for trial to the Court of Sessions and accordingly Sessions Case No.88/2009 has been registered and numbered. The learned Addl. Sessions Judge(FTC), thereafter, framed the charge against the appellant, Hira Rabidas, Ratan Rabidas and Paresh Rabidas under Section 302/34 IPC, which when read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. Hence the trial commenced. 3. During the course of trial the prosecution in order to bring home the charge against all the accused examined 9(nine) witnesses, namely, Sri Jyotirmoy Bhattacharjee (PW-1); Sri Beprodip Chakraborty (PW-2); Sri Swapan Roy (PW-3); Sri Ramsurat Rabidas (PW-4); Smt. Rukmini Rabidas (PW-5); Smt. Bina Rabidas (PW-6); Sri Mrinal Kanti Roy (PW-7); Dr. B.C. Roy Medhi (PW-8) and Sri Shyambabu Singha (PW-9). B.C. Roy Medhi (PW-8) and Sri Shyambabu Singha (PW-9). PWs-2 and 3 have been declared as hostile, they having not supported the prosecution case. While PW-1 is the neighbor of the accused, PW-4 is the father, who lodged the first information report, PW-5 is the mother and PW-6 is the sister of the deceased. PW-7 has proved the inquest done by the learned Executive Magistrate on the dead body and who was present during the conduct of such inquest. PW-8 is the doctor who proved the post mortem examination report submitted by the Dr. H. Sarmah, Professor and Head of the Department of Forensic Medicine, Silchar Medical College, upon such examination. PW-9 is the Investigating Officer. Upon completion of the recording of evidence of the prosecution witnesses, the statements of the accused persons were recorded under Section 313 Cr.P.C. The defence case is of complete denial. The accused persons, however, have not led any evidence in defence, despite the opportunity given. 4. The Trial Court upon appreciation of the evidence on record, while convicting the appellant under Section 302 IPC, based on the circumstantial evidence, has acquitted the other accused persons from the charge framed under Section 302/34 IPC. Hence the present appeal. 5. We have heard Ms. A. Das, learned amicus curiae appearing for the appellant and Ms. S. Jahan, learned Addl. Public Prosecutor appearing for the State of Assam. 6. Ms. Das, the learned amicus curiae referring to the deposition of the prosecution witnesses, has submitted that it is apparent therefrom that there is no eye witness to the occurrence and the prosecution case is based on the circumstantial evidence. Referring to the depositions of PWs-4, 5 and 6, who are related witnesses, it has also been submitted that even if their versions are taken to be correct, no incriminating circumstances having been proved against the accused appellant, no conviction could be based on their testimony. It has also been submitted that having regard to the deposition of PW-1, namely, Jyotirmoy Bhattacharjee, who is a neighbor, the version of PWs-4, 5 and 6 that the deceased was earlier tortured by the accused appellant, for which she was taken back to her parental house, who, however, again at the instance of another person was sent back to the matrimonial house, cannot be believed. The learned amicus curiae, therefore, submits that since the prosecution could not prove any incriminating circumstances pointing to the guilt of the accused alone, the judgment of conviction recorded by the Trial Court needs interference. 7. The learned Addl. Public Prosecutor, on the other hand, supporting the judgment of conviction recorded by the Trial Court, has submitted that it is evident from the deposition of PWs-4, 5 and 6 that there was demand of money immediately after the marriage, for which the deceased was tortured by the husband and had to be taken back to her parental house, who, however, was sent back to the matrimonial house at the instance of a third party. It has also been submitted that it is also evident from the deposition of the PW-6 Smt. Bina Rabidas that she saw the blood coming out of the nose and mouth of the deceased, which has also been supported by the inquest report (Ext.-2). The learned Addl. Public Prosecutor referring to the post mortem examination report (Ext.-3) has submitted that the prosecution could prove the injuries found on the person of the deceased as well as the cause of the death and apart from the death of the deceased because of the injuries found on her body, which has also not been challenged by the defence during cross-examination. The learned Addl. Public Prosecutor further submits that it is being in evidence that the deceased was found dead because of the injuries found on her body, within 1(one) year of her marriage in her husband’s house, the appellant husband ought to have explained the reason of death and though during cross-examination they put up the defence that the deceased was suffering from various ailments and was treated in Silchar Medical College, no evidence, however, was led by the defence to substantiate the same. Hence according to the learned Addl. Public Prosecutor, the judgment of conviction has rightly been recorded by the Trial Court. 8. We have considered the submissions advanced by the learned counsel appearing for the parties and also perused the evidence available on record, apart from the judgment of conviction recorded by the Trial Court. 9. The prosecution in order to prove the death as well as the cause of death of the deceased, has examined Dr. B.C. Roy Medhi (PW-8), who has proved the post mortem examination report being Ext.-3. 9. The prosecution in order to prove the death as well as the cause of death of the deceased, has examined Dr. B.C. Roy Medhi (PW-8), who has proved the post mortem examination report being Ext.-3. It appears from the post mortem examination report that the following injuries were found on the body of the deceased:- “Injuries:- Bruises present on the floor of the mouth in a difuse manner (bluish) and both lips mucosal surface. On desection ecchymosis of soft tissues in the floor of the mouth. No ligature mark found on the neck. Scalp – Left tempore-frontal region ecchymosed. Skull and vertebra healthy membrain and brains congested. Organs of thorasic and abdominal cavity found congested. Uterus enlarged and half an inch above umbilicus. Fundal part of uterus contused as a whole. On opening one male fetus found in the uterine cavity. Length of fetus 32 cm approximately 6½ month intra uterine age of fetus (nonciable).” The doctor conducting the post mortem examination has opined that the death was caused by asphyxia resulting from anti-mortem palmar strangulation and homicidal in nature and the injuries are also anti-mortem. During cross-examination the doctor has explained that the palmar strangulation means the strangulation done by palm of the hands. The defence did not cross-examine the doctor on the injuries found on the body of the deceased, the cause of death as well as the opinion of the doctor that the death was caused by palmar strangulation and homicidal in nature. The prosecution, therefore, could prove that it is a homicidal death. 10. The next question which requires determination is whether the prosecution could prove, beyond all reasonable doubt, the complexity of the accused appellant to the commission of crime. It is always not necessary that the accused can be convicted only when there is eye witness to the occurrence. Conviction can be based on the circumstantial evidence, if the chain of circumstance is complete and such incriminating circumstances points to the guilt of the accused person alone and not anyone else. 11. It is always not necessary that the accused can be convicted only when there is eye witness to the occurrence. Conviction can be based on the circumstantial evidence, if the chain of circumstance is complete and such incriminating circumstances points to the guilt of the accused person alone and not anyone else. 11. In the instant case, the PWs-4, 5 and 6, who are the parents and sister of the deceased in clear terms have stated that the deceased was married to the appellant 1(one) year before the death of the deceased, who was tortured on a number of occasion demanding money and as a result of which she had to be taken to the paternal house, who was, however, sent back to the matrimonial house, namely, to the house of the accused appellant, at the instance of a third party. Though the defence, during cross-examination, sought to prove the contradiction relating to the statements made under Section 161 Cr.P.C. by putting a suggestion that the demand for money have not been stated before the police, the defence, however, did not cross-examine the I.O. in that respect and proved the statements of these witnesses under Section 161 Cr.P.C. As because PW-1, who is a neighbour of the accused, did not say anything relating to the torture and the demand for money, the positive evidence of PWs-4, 5 and 6 cannot be doubted, they being the parents and sister staying together in the house of PW-4. The defence also during cross-examination could not shake the credibility of these witnesses. 12. That apart, it is also in evidence that the accused was living together with the deceased and the dead body was found in the accused appellant’s house. There is absolutely no explanation from the accused appellant relating to the cause of the death. The accused appellant though during cross-examination suggested that the deceased died because of the illness of epilepsy, for which she was hospitalized in Silchar Medical College, the accused appellant, however, could not substantiate the same by adducing any evidence or while cross-examining the prosecution witnesses. The aforesaid incriminating circumstances appears against the accused appellant and the chain of circumstances being complete which points to the guilt of the accused alone, the Trial Court has rightly recorded the judgment of conviction, which does not require any interference in appeal. 13. Hence the appeal is dismissed. 14. The aforesaid incriminating circumstances appears against the accused appellant and the chain of circumstances being complete which points to the guilt of the accused alone, the Trial Court has rightly recorded the judgment of conviction, which does not require any interference in appeal. 13. Hence the appeal is dismissed. 14. Registry is directed to send down the records. 15. The learned amicus curiae shall be paid her professional fee of Rs.7,500/- by the State of Assam within a period of 1(one) month from today.