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2014 DIGILAW 751 (GAU)

Madhu Munda v. State of Assam

2014-07-31

C.R.SARMA

body2014
JUDGMENT C.R. Sarma, J. 1. Heard Mr. A. Chamuah, learned Amicus Curiae, appearing for the appellant. Also Heard Mr. B.J. Dutta, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. Perused the records. This appeal is directed against the judgment and order, dated 26.5.2010, passed by the learned Addl. Sessions Judge (FTC), Sivasagar in Sessions Case No. 174(S-S)/2009 (G.R. Case No. 605/2009, corresponding to Demow P.S. Case No. 72/2009), under Section 304 Part-I of the Indian Penal Code, 1860 (for short IPC) whereby the learned Addl. Sessions Judge (FTC) convicted the accused-appellant for the offence under Section 304 Part-I IPC and sentenced him to suffer rigorous imprisonment for 10(ten) years and pay fine of Rs. 20,000/- in default, suffer rigorous imprisonment for another period of 4(four) months. 2. Aggrieved by the said conviction and sentence, the appellant has preferred this appeal from the jail, there being none to represent the appellant, Mr. A. Chamuah, learned counsel, has been engaged by this court, as Amicus Curiae, to represent the appellant. 3. The prosecution case, in brief, as may be necessary for disposing this appeal, is as follows:- On 3.6.2009, at about 8.00 p.m. the appellant, his wife (hereinafter called the deceased) and their minor granddaughter, namely Moni Munda (P.W. No. 2) were in the house. The appellant and his wife, after drinking liquor picked up quarrel. The appellant slapped the said granddaughter (P.W. No. 2) and on being frightened, she left her (i.e. the company of her said grandparents) for her maternal uncle (P.W. 3), wherein she spent the night. On the next morning, the dead body of the deceased was found, in her house, in injured condition. The son of the deceased, who returned from his duty in the morning and he lodged FIR (Ext. No. 1) with the police. On receipt of the FIR, police registered a case under Section 302 IPC and launched investigation into the matter. 4. During investigation, police visited the place of occurrence, prepared inquest report, sent the dead body of the deceased for postmortem examination and examined the witnesses. After two days of the occurrence, the police arrested the appellant, who was found loitering in the village. At the close of investigation, police submitted charge sheet under Section 302 IPC and forwarded the accused-appellant to the court to stand trial. 5. The case being committed for trial, the learned Addl. After two days of the occurrence, the police arrested the appellant, who was found loitering in the village. At the close of investigation, police submitted charge sheet under Section 302 IPC and forwarded the accused-appellant to the court to stand trial. 5. The case being committed for trial, the learned Addl. Sessions Judge (FTC) framed charge under Section 302 IPC against the appellant. The charge was read over and explained to the accused-appellant, to which he pleaded not guilty. 6. In order to prove their case, the prosecution examined as many as 8 witnesses including the Medical Officer (P.W. No. 6) and the Investigating Officer (P.W. No. 8). After examination of the prosecution witnesses, the accused-appellant was examined under Section 313 Cr. P.C. He denied the allegations, brought against him and declined to adduce defence witness. In his examination, under Section 313 Cr. P.C., the appellant stated that, in order to avoid quarrel with his deceased-wife, he had left his house and that he did not know as to how his wife met with her death. 7. Considering the evidence on record, the learned Addl. Sessions Judge (FTC) recorded the conviction and sentence as indicated herein above. 8. Mr. A. Chamuah, learned Amicus Curiae, referring to the evidence, on record, as well as the impugned judgment and order, has submitted that the prosecution case is based on the evidence of the minor granddaughter (P.W. No. 2) of the accused-appellant and the deceased, who was aged about 9 years and the last seen theory. It is submitted that the learned Addl. Sessions Judge (FTC) committed error by relying on the sole testimony of the said minor without any corroboration. 9. The learned Amicus Curiae, pointing to the time gap i.e. the time at which P.W. No. 1 had left her house and the time at which the dead body of the deceased was detected, has submitted that in view of the said long time gap, it cannot be conclusively held that none other than the appellant had caused death of the deceased. The learned Amicus Curiae has also submitted that there is major contradiction in the prosecution evidence raising doubt about the prosecution version. The learned Amicus curiae has further contended that there is no sufficient, cogent and reliable evidence pointing to the guilt of the evidence and as such the impugned conviction and sentence is not maintainable. 10. The learned Amicus Curiae has also submitted that there is major contradiction in the prosecution evidence raising doubt about the prosecution version. The learned Amicus curiae has further contended that there is no sufficient, cogent and reliable evidence pointing to the guilt of the evidence and as such the impugned conviction and sentence is not maintainable. 10. Refuting the said argument, advanced by the learned Amicus Curiae, Mr. B.J. Dutta, learned Addl. Public Prosecutor, Assam has submitted that the evidence of P.W. No. 2 i.e. the child witness does not suffer from any deficiency and that her evidence is sufficient to hold that the deceased and the appellant were in the same house and that none other than the appellant had caused death of the deceased. The learned Addl. Public Prosecutor has also submitted that the circumstantial evidence revealed by the prosecution witnesses, coupled with the evidence given by the P.W. 2 conclusively, lead to hold that none other than the appellant had caused death of the deceased. 11. Supporting the impugned judgment and order, the learned Addl. Public Prosecutor has submitted that the learned Addl. Sessions Judge committed no error or illegality, requiring interference by this court. 12. In order to appreciate the argument, advanced by the learned counsel, appearing for both the parties, I feel it appropriate to examine the evidence, on record. Considering the evidence on record, more particularly the evidence of P.W. No. 2, I find that the learned Addl. Sessions Judge (FTC) heavily relied on the evidence of P.W. No. 2 i.e. the child witness in arriving at the findings regarding guilt of the appellant, on the basis of the last seen theory. 13. Admittedly, at the initial stage, the deceased, the appellant and P.W. No. 2 were in the same house. According to P.W. No. 2, she left the house leaving the deceased and the appellant therein. Supporting her evidence, P.W. No. 3 (Shri Ram Das Munda) stated that at about 7.00 p.m., P.W. No. 2 had arrived in his house and that she spent the night, therein. P.W. No. 2 i.e. the granddaughter of the appellant and the deceased, in her evidence stated that she left the house, on being slapped by her grandfather and spent the night in her aunt's place i.e. the house of P.W. No. 3. P.W. No. 2 i.e. the granddaughter of the appellant and the deceased, in her evidence stated that she left the house, on being slapped by her grandfather and spent the night in her aunt's place i.e. the house of P.W. No. 3. P.W. No. 2 further stated that on the next morning, when she returned home, she found her grandmother being covered with a piece of cloth and she went to the house of Sonamoni. Smti Sonamoni Munda (P.W. No. 4) inform her, who accompanied her and told that her grandmother was dead. According to P.W. No. 2, on being informed, her father returned home from his duty. From the evidence of P.W. No. 2, it is clearly found that at the time of finding the dead body of the deceased, none was present inside the house. 14. P.W. No. 2, in her cross examination, stated that she did not know what had happened after she had left the house. She also stated that number of people used to live near their house. According to P.W. No. 2 her maternal uncle's house was situated adjacent to her house. From the evidence of the prosecution witnesses, it is found that none of the witnesses had heard about any quarrel or incident between the deceased and the appellant in the said fateful night. 15. Shri Ram Das Munda (P.W. No. 3), who was the maternal uncle of P.W. No. 2 stated that at about 7.00 p.m. P.W. No. 2 had arrived his house and that she had reported that she was assaulted by her grandfather. According to this witness she spent the night in his house and she left in the morning. This witness further stated that the appellant also followed P.W. No. 2 to his house, to take her back, but out of fear, due to assault, she refused to return home. From the evidence of P.W. No. 3 it is clearly found that the appellant also left his house, immediately after P.W. No. 2 had left her house. 16. A crateful reading of the evidence of P.W. Nos. 2 and P.W. No. 3 lead to held that the appellant also followed the P.W. No. 2. None of the witnesses has stated that the appellant had returned to his house and joined the company of the deceased. 16. A crateful reading of the evidence of P.W. Nos. 2 and P.W. No. 3 lead to held that the appellant also followed the P.W. No. 2. None of the witnesses has stated that the appellant had returned to his house and joined the company of the deceased. Therefore, it cannot be concluded that after P.W. No. 2 had left the company of the appellant and the deceased and the appellant remained in their house. 17. Fact remains that the dead body of the deceased was noticed in the next morning. There can be no doubt that the period from 7.00 p.m. to the next morning is a huge time gap. In the absence of any evidence to show that the appellant was with the deceased in the same house till the time of death of the deceased, it cannot be safely held that none other than the appellant had caused the death of the deceased. Division Bench of this court, while deciding the case of Must. Suriya Khatun vs. State of Assam, Crl. No. 289 of 2012 disposed of on 01.10.2013, referred to the decision of the Apex Court held in the case of Bodhraj vs. State of Jammu & Kashmir, (2005) 3 SCC 114 . The Supreme Court observed as under: "31. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases." 18. In view of the above, principle laid down by the Supreme Court, considering the time gap, the possibility of any other person coming in between cannot be ruled out. That apart, P.W. No. 3 stated that the appellant also followed P.W. No. 2 to his house. Hence, it is found that the appellant also left the house, immediately after the P.W. No. 2. That apart, P.W. No. 3 stated that the appellant also followed P.W. No. 2 to his house. Hence, it is found that the appellant also left the house, immediately after the P.W. No. 2. The appellant also in his statement made under Section 313 Cr. P.C. stated that in order to avoid quarrel he had left the house. This plea draws support from the evidence of P.W. No. 3. None saw the appellant returning to their home. Therefore, considering the long time gap, it will not be safe to believe that none other than the appellant had committed offence. 19. Though, P.W. No. 2 had stated that her grandfather had picked up quarrel with the deceased. P.W. No. 4, who met P.W. No. 2 after the occurrence, stated that P.W. No. 2 did not tell her about any quarrel. The failure of P.W. No. 2 to inform P.W. No. 4 about any such quarrel raises doubt about the prosecution story. From the Sketch map (Ext. No. 4), it appears that the house of P.W. No. 4 was situated near the house of the deceased. If any quarrel, resulting the death of the deceased had taken place, P.W. No. 2 would have heard the same. 20. From the medical evidence, adduced by P.W. No. 6 it is found that the deceased sustained as many as 5(five) injuries. P.W. No. 6 stated that examining the dead body he found the following injuries. "1. There was bruise marks on the left side of the forehead with central laceration, size being 7 c.m. x 5 c.m. 2. Abrasion seen in both the cheeks. 3. Abrasion in the elbows. 4. Abrasion on the knees. 5. There was a bruise mark on the back of the right chest measuring 2 c.m. x 2 c.m." 21. Considering the nature of the injuries sustained by the deceased, she might have raised alarm on being attacked by the appellant, but the evidence of P.W. No. 4 does not lead to find that the deceased had raised any such alarm. P.W. No. 7, another son of the deceased, who lived separately from the deceased stated that coming to know about the incident he visited the house of his parents. He stated that he did not found his father therein. P.W. No. 7, another son of the deceased, who lived separately from the deceased stated that coming to know about the incident he visited the house of his parents. He stated that he did not found his father therein. This witness stated that P.W. No. 2 had told him that her grandfather had picked up a quarrel with her grandmother and as such they suspected that the appellant had killed the deceased. 22. It is found that except suspicions there is no substantive and cogent evidence to show that the appellant had committed the offence. Suspicion, how so ever high cannot be substituted for substantive legal evidence. 23. In the case of Kali Ram vs. State of Himachal Pradesh, AIR 1973 SC 2773 , the Supreme Court observed as under: "Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence." 24. That a part, the circumstantial evidence that the deceased had left the house following P.W. No. 2 to the house of P.W. No. 3 does not form a complete chain of events, leading to the hypothesis that none except the appellant had killed the deceased. In the case of Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 , the Supreme Court observed as follows: "The facts so established should be consistent only with the hypothesis of the guilt of the accused. There should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 25. In view of the attending facts and circumstances and the evidence adduced by the prosecution, it cannot be collusively held that the appellant had caused the death of the deceased. In view of the attending facts and circumstances and the evidence adduced by the prosecution, it cannot be collusively held that the appellant had caused the death of the deceased. Therefore, the possibility of innocence of the appellant cannot be ruled out. In view of existence of two views, regarding involvement of the appellant, the appellant is entitled to the benefit of doubt. 26. In view of what has been discussed above, I am of the considered opinion that the prosecution failed to establish the case against the appellant, beyond all reasonable doubt and as such the impugned conviction and sentence cannot be maintained. I find sufficient merit in this appeal. Accordingly, the appeal is allowed. The impugned conviction and sentence are set aside. The appellant stands acquitted and he be set at liberty forthwith, unless he is required in any other case. 27. Before parting with this judgment, I acknowledge, the assistance rendered by Mr. A. Chamuah, learned Amicus Curie and order that an amount of Rs. 7,500/- (Rupees seven thousand five hundred) only be paid to the learned Amicus Curiae as his remuneration by the State. Return the LCR. Appeal allowed.