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2014 DIGILAW 771 (GAU)

Rat Chand Bahadur Magar v. State of Assam

2014-08-05

C.R.SARMA, M.R.PATHAK

body2014
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 01.10.2011, passed by the learned Sessions Judge, Kamrup, Guwahati, in Sessions Case No. 228(K)/2010, whereby the learned Sessions Judge, convicted the appellant under Section 302 IPC and sentenced him to suffer imprisonment for life and pay fine of Rs. 5000/-, in default, R.I. for 3(three) months. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this appeal, from jail. 2. There being none to represent the appellant, Mr. I.H. Saikia, learned Counsel, has been appointed as Amicus Curiae, at the cost of the State. 3. The prosecution case, in brief, is that, on 04.04.2010, at about 4.30 P.M., when the deceased i.e. wife of the PW-1 was cleaning utensils in her courtyard, the appellant, who was the domestic assistant in her house, inflicted blows on her head and shoulder with a spade, causing injuries on her person. The appellant was apprehended by the husband of the deceased and other neighbors and was handed over to the Police along with the seized spade. The victim was initially shifted to Guwahati Medical College (in short, GMCH) and thereafter to GNRC for medical treatment. She succumbed to the said injuries, during the period of her treatment. 4. PW-3, one of the neighbors of the deceased lodged an FIR with the Police on the date of occurrence. On receipt of the FIR, Police registered a case under Section 326/307 IPC and launched investigation into the matter. After the death of the deceased, Police requested the learned Chief Judicial Magistrate to add Section 302 IPC and accordingly Section 302 IPC was added. 5. During the investigation, Police visited the place of incident, took the accused person into custody and seized the spade, which was found lying in the place of occurrence and collected the post mortem examination report in respect of the deceased. 6. At the close of the investigation, Police submitted charge-sheet under Section 326/307/302 IPC. The offence being exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Kamrup committed the case to the Court of Sessions and the learned Sessions Judge, considering the materials, on-record, framed charges under Sections 326 and 302 IPC. The charges were read over and explained to the accused person to which he pleaded not guilty. 7. The offence being exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Kamrup committed the case to the Court of Sessions and the learned Sessions Judge, considering the materials, on-record, framed charges under Sections 326 and 302 IPC. The charges were read over and explained to the accused person to which he pleaded not guilty. 7. In order to prove the case, prosecution examined as many as nine witnesses including the Medical Officer (PW-6), who performed the autopsy and the Investigating Police Officers (PWs-7, 8 and 9). 8. After examination of the prosecution witnesses, the accused person was examined under Section 313 Cr. P.C. He denied the allegations, brought against him and declined to adduce defence evidence. 9. The learned Sessions Judge, considering the evidence, on-record, more particularly, the circumstantial evidence, revealed by the prosecution witnesses, recorded the conviction and sentence, as indicated above. 10. Mr. I.H. Saikia, learned Amicus Curiae, taking this Court through the evidence, on-record, has submitted that there is no substantive evidence to show that the appellant had caused the death of the deceased by inflicting blows on her person, with the seized spade. The learned Amicus Curiae has also submitted that the learned Sessions Judge even after disbelieving the evidence of PWs-1 and 2, who claimed to be the eye witnesses, committed error by solely relying on the circumstantial evidence, in arriving at findings that the appellant had committed the alleged offence. On behalf of the appellant, it is submitted that the prosecution failed to prove, beyond all reasonable doubt, that the appellant committed the alleged offence and as such, the impugned conviction and sentence are not maintainable. 11. In support of his contention, the learned Amicus Curiae has relied on the following decisions: (i) Ramreddy Rajeshkhanna Reddy & Another vs. State of Andhra Pradesh, 2006 (40) AIC 57 (SC) (ii) Naresh Kumar vs. State of Maharashtra, AIR 1980 SC 1168 (iii) Sharad Biridhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 12. Controverting the said argument, advanced by the learned Amicus Curiae, Ms. Controverting the said argument, advanced by the learned Amicus Curiae, Ms. S. Jahan, learned Additional Public Prosecutor, referring to the evidence of PW-1 has submitted that the PW-1 clearly saw the occurrence from the veranda of house and that the circumstantial evidence, surfaced from the evidence, on-record, clearly lead to the findings that none, other than the accused person, had caused the death of the deceased by inflicting injuries on her person by means of a spade. It is also submitted by the learned Additional Public Prosecutor, that the presence of the accused person, who was the domestic assistant in the house of the deceased, in the place of occurrence with the spade and also his detention by the neighbors, in the place of occurrence along with the spade, are sufficient evidence to show that the appellant was the perpetrator of the crime. 13. Supporting the impugned judgment and order, passed by the learned Sessions Judge, the learned Additional Public Prosecutor has submitted that the learned Sessions Judge has rightly convicted the appellant by relying on the circumstantial evidence and as such, the impugned conviction and sentence need no interference. 14. Having heard the learned Counsel, appearing for both the parties and carefully perusing the materials, on-record, it appears that there is no dispute that the deceased died due to injuries, sustained by her on her head and shoulder. The medical evidence, given by the PW-5, who performed the post mortem examination on the dead body of the deceased, clearly indicated that the deceased died due to coma as a result of the injuries sustained by her on her head. The Medical Officer opined that the injuries were anti mortem and caused by heavy sharp weapon and homicidal in nature. The said medical evidence led to the findings that the injury was caused by heavy weapon, like spade. The weapon seized in this case was also a spade and the same has been exhibited as material Ext. No. 1. 15. The inquest report i.e. Ext. 1 reveals that the inquest was made on 21.05.2010. The said inquest report was prepared in the GMCH, Bhangagarh. The inquest report also reveals that the deceased sustained cut injury on her head. Now the question is as to who had caused such fatal injuries on the person of the deceased. 16. No. 1. 15. The inquest report i.e. Ext. 1 reveals that the inquest was made on 21.05.2010. The said inquest report was prepared in the GMCH, Bhangagarh. The inquest report also reveals that the deceased sustained cut injury on her head. Now the question is as to who had caused such fatal injuries on the person of the deceased. 16. PW-1, i.e. husband of the deceased, who claimed to be an eye witness, stated that he was sitting in the veranda of his house and saw the accused person inflicting spade blows on the head and shoulder of the deceased. According to PW-1, the deceased was cleaning her utensils, at the relevant time. He further stated that the accused, who was asked by the deceased to bring water from the well, had brought a spade and inflicted three successive blows on her person. According to this witness, seeing the occurrence, he raised alarm and the neighboring people gathered in the place of occurrence. He further stated that the people, gathered in the place of occurrence, had apprehended the accused person along with the spade in his hand. He has exhibited the inquest report as Ext. No. 1 and his signature therein as Ext. No. 1(i). 17. The PW-1 neither identified nor exhibited the seized spade in the Court. He being an eye witness, was the best person to say if the seized spade i.e. Material Ext. No. 1 was used by the accused. From his evidence, it can not be held that the Material Ext. No. 1 i.e. the spade, seized by the Police, was the very spade used by the accused person at the time of committing the alleged offence. 18. Mr. Amrit Saikia, who was the brother-in-law of the deceased, deposing as PW-2, stated that he saw the occurrence and found that the accused had inflicted three successive blows on the deceased with a spade. He further stated that the people from locality arrived at the place of occurrence and apprehended the accused, who was handed over to the Police. This witness, during his cross-examination, contradicted the said evidence by saying that he did not witness the incident. His evidence, given during the cross-examination, negates his earlier version, given at the time of examination in-chief. Therefore, it cannot be believed that the PW-2 had seen the occurrence himself. This witness, during his cross-examination, contradicted the said evidence by saying that he did not witness the incident. His evidence, given during the cross-examination, negates his earlier version, given at the time of examination in-chief. Therefore, it cannot be believed that the PW-2 had seen the occurrence himself. That apart, this witness also did not exhibit the spade alleged to be used by the accused person. He further stated that the place of occurrence, where the deceased was assaulted by the accused person, was not visible from the veranda i.e. the place, where the PW-1 was sitting at the time of incident. He also clarified that the place of occurrence was obstructed by the kitchen. 19. From the said evidence, given by the PW-2, it appears that the PW-1 was not in a position to see the occurrence from the veranda The learned Sessions Judge rightly disbelieved the evidence of PW-1 that he had seen the occurrence himself. 20. In view of the above, in our considered opinion, the learned Sessions Judge rightly came to the findings that the evidence, given by PW-1 & 2, that they had seen the accused person inflicting blows with a spade, was doubtful. The other non official prosecution witnesses i.e. PWs-3, 4 and 6, who also arrived in the place of occurrence, after the incident, did not state that they had seen the occurrence themselves. Therefore, it appears that, none of the prosecution witnesses saw the appellant inflicting blows with the seized spade, on the deceased. 21. The learned trial Judge, disbelieving the direct evidence of the PW-1 and PW-2, has based the conviction on the following circumstantial evidence: 1. The accused who was domestic help of the deceased was present at the time of occurrence. 2. The deceased sustained grievous injuries caused to her by sharp weapon like spade which ultimately caused her death. 3. The accused was armed with spade. 4. The witnesses struggled to snatch away the spade from accused. 5. The accused was tied up by the witnesses. 22. The learned trial Judge has held that the accused was found in the place of occurrence with a spade in his hand and that he was apprehended by the people, who gathered therein after the incident. 4. The witnesses struggled to snatch away the spade from accused. 5. The accused was tied up by the witnesses. 22. The learned trial Judge has held that the accused was found in the place of occurrence with a spade in his hand and that he was apprehended by the people, who gathered therein after the incident. Admittedly, the said spade i.e. the weapon, alleged to be used by the appellant has not been sent for forensic examination to determine as to whether the same contained any human blood stain. As discussed above, in the absence of any direct evidence and non availability of evidence, regarding presence of human blood, it cannot be concluded that the spade, found in the hand of the accused, was used by him in committing the alleged offence. That apart, PW-1 and PW-2, who claimed to be eye witnesses, did not prove the seized spade, as the spade used by the accused. Presence of a person with a weapon, in the place of occurrence, immediately after the incident, cannot be treated a substantive evidence to hold that none other than he was the perpetrator of the crime. It is settled law that prosecution is required to prove the charge, brought against a person, beyond all reasonable doubt. The failure of the prosecution to prove use of the seized spade, by the appellant, in causing the injuries, raises doubt about the involvement of the appellant. In fact, there is no eye witnesses indicating the guilt of the appellant. 23. The law regarding circumstantial evidence has been laid down in a catena of decisions. As held in the case of Sharad Biridhichand Sarda (supra), in order to hold a person guilty, on the basis of circumstantial evidence, the events, surfaced from the evidence, must form a complete chain of events, sufficient to hold that, in all human probability, none except the accused had committed the offence and his innocence must be ruled out. 24. In the case of Ramreddy Rajeshkhanna Reddy supra), the Supreme Court observed "It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances, by reliable and clinching evidence and the circumstances so proved must from such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances, surface from the evidence must be consistent with the hypothesis of innocence of the accused. It is also well-settled that suspicion, howsoever, high cannot be substitute for substantial evidence and Courts are to take utmost precaution in finding an accused guilty, only on the basis of circumstantial evidence." 25. In view of above principles, laid down by the Supreme Court, the presence of the accused person, in the place of occurrence with a spade, can not conclusively led to hold that none other than the accused person had committed the offence. There must be convincing evidence regarding his involving. 26. In the absence of any evidence regarding use of the said spade, it is not safe to hold that the accused had used the said spade i.e. Material Ext. No. 1. 27. In view of what has been discussed above, we are of the considered opinion that circumstantial evidence, as revealed by the prosecution witnesses is not sufficient to conclusively hold that the appellant had committed the alleged offence. 28. In view of the above, we have no hesitation in holding that the prosecution failed to prove the case against the appellant/accused person beyond all reasonable doubt. Therefore, the impugned conviction and sentence can not be maintained. Accordingly, the appeal is allowed. The conviction and sentence aforesaid are set aside. The appellant stands acquitted and he be set at liberty forthwith, if not wanted any other case. 29. Return the LCR. Before we part with this appeal, we acknowledge the assistance, rendered by Mr. I.H. Hazarka, learned Amicus Curiae and order that an amount of Rs. 7,500/- be paid by the State in favour of the learned Amicus Curiae as his remuneration. Appeal allowed.