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2014 DIGILAW 930 (GAU)

Shirish Mandal v. State of Assam

2014-10-17

C.R.SARMA, PRASANTA KUMAR SAIKIA

body2014
C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 20.10.2011, passed by the learned Additional Sessions Judge, Lakhimpur, North Lakhimpur, in Sessions Case No. 124(NL) of 2010, whereby the learned Sessions Judge convicted the appellant under Section 302 of the Indian Penal Code, (for short, IPC) and sentenced him to suffer imprisonment for life and pay fine of Rs. 1000/-, in default, suffer rigorous imprisonment for another period of 30 days. The prosecution case, in brief, is that, on 10.08.2008, Md. Abdul Majid (hereinafter called the 'deceased'), elder brother of the informant went to Doolahat Bazar, but did not return home. On the same night, in between 9 to 10 pm, some persons, including the appellant, were found raising hue and cry on the road, in front of the house of Sri Parameswar Roy (PW-2). As Sri Parameswar Roy and Sri Horekrishna Baishnab (PW-1) had approached the said persons, the appellant threatened them to leave the place and accordingly they left. 2. During the investigation, Police examined the witnesses and arrested the appellant and two other persons, namely Bhuban Sarkar and Rajani Mandal (both acquitted). The nephew of the deceased (PW-4), on 15.08.2008 lodged an FIR (Ext. No. 3) with the Police, alleging that the appellant and 4/5 others persons had waylaid the deceased and abducted him with a view to kill him. On receipt of the said FIR, Police registered a case and launched investigation into the matter. On 16.08.2014, the dead body of the deceased was exhumed from a field. Police prepared the inquest report and forwarded the dead body for post mortem examination. 3. At the close of the investigation, Police submitted charge-sheet under Sections 341/323/326/302 and 201 read with Section 34 IPC. The offence being exclusively triable by the Court of Sessions, the learned Judicial Magistrate 1st Class, North Lakhimpur committed the case to the Court of Sessions and the learned Additional Sessions Judge, considering the materials, on-record, framed charges under Sections 302/34/201/34 IPC. The charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. 4. In order to prove its case, the prosecution examined as many as nine witnesses including the Medical Officer (PW-9), who performed the autopsy of the dead body and the Investigating Police Officer (PW-8). 5. The charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. 4. In order to prove its case, the prosecution examined as many as nine witnesses including the Medical Officer (PW-9), who performed the autopsy of the dead body and the Investigating Police Officer (PW-8). 5. At the close of the evidence for prosecution, the accused persons were examined under Section 313 Cr.P.C. They denied the allegations, brought against them. Their plea was a denial one. Considering the evidence, on-record, more particularly, the circumstantial evidence, revealed by the prosecution witnesses, the learned Additional Sessions Judge convicted and sentenced the appellant for the offence under Section 302 IPC, as indicated above and acquitted the other accused persons for want of sufficient evidence. The trial Court acquitted all the accused persons from the charge under Section 201 IPC. 6. Aggrieved by the said conviction and sentence, the appellant has come up with this appeal, from jail. 7. We have heard Mr. S. Agarwal, learned Amicus Curiae, appearing for the appellant and Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 8. Mr. S. Agarwal, learned Counsel, appearing for the appellant, taking us through the evidence, on-record, has submitted that none of the witnesses implicated the appellant with the death of the deceased and that the learned Additional Sessions Judge committed gross error and illegality by convicting and sentencing the appellant under Section 302 IPC, without sufficient evidence. 9. The learned Counsel for the appellant, taking us through the impugned judgment and order, has submitted that the learned Additional Sessions Judge, despite arriving at the findings that there was no direct evidence, committed error by holding the appellant guilty, on the basis of circumstantial evidence, which also lacked corroboration on material point. It is submitted that the circumstantial evidence, indicated by the prosecution witnesses, does not form a complete chain of events, conclusively leading to the conclusion that, none other than, the appellant had caused the death of the deceased. The learned Counsel for the appellant has strenuously argued that the impugned conviction and sentence are not maintainable in the eye of law and that the appellant is entitled to be acquitted. 10. Controverting the said argument, advanced by the learned Counsel for the appellant, Ms. The learned Counsel for the appellant has strenuously argued that the impugned conviction and sentence are not maintainable in the eye of law and that the appellant is entitled to be acquitted. 10. Controverting the said argument, advanced by the learned Counsel for the appellant, Ms. S. Jahan, learned Additional Public Prosecutor, has submitted that though there is no direct evidence showing involvement of the appellant, the circumstantial evidence, on-record, are sufficient to hold the appellant guilty of causing the death of the deceased. Supporting the impugned conviction and sentence, the learned Additional Public Prosecutor has submitted that the learned Additional Sessions Judge has committed no error or illegality, requiring interference. 11. In order to appreciate the arguments, advanced by the learned Counsel for both the parties and to examine the correctness of the impugned judgment and order, we feel it appropriate to scrutinize the evidence, on-record, as follows. 12. Admittedly, there is no eye witness to the occurrence . Sri Horekrishna Baishnab ( PW-1) stated that, one day, in the month of August, at about 9 to 10 pm, hearing hue and cry, he came out from his house and found a lamp in front of the house of Parameswar (P:W-2). He stated that, he saw several persons raising hue and cry and that the appellant had put out the lamp by kicking it. He has exhibited his statement, recorded under Section 164 Cr.P.C. He further stated that, after about 3 to 4 days, he came to know that a person had died on the said night. This witness did not say anything regarding presence of the deceased, either in the company of the appellant, or other accused persons, in the place of occurrence. Therefore, his evidence does not lead to the conclusion that the appellant was involved with the assault and the death of the deceased. 13. Sri Parameswar Roy, deposing as PW- 2, stated that, hearing hue and cry, at about 9 to 10 pm, he-came out from his house carrying a lamp and saw the appellant. He further stated that the appellant had put out the lamp and asked him to go home. He also stated that, after several days, he came to know that a person had died. This witness also exhibited his statement, made under Section 164 Cr.P.C., as Ext. 2. He further stated that the appellant had put out the lamp and asked him to go home. He also stated that, after several days, he came to know that a person had died. This witness also exhibited his statement, made under Section 164 Cr.P.C., as Ext. 2. From the evidence of PWs-1 & 2, it appears that both of them, hearing hue and cry, appeared on the road and found the appellant, who had put out the lamp, carried by PW-2. None of them stated about the presence of the deceased and involvement of the appellant with the assault and the death of the deceased. 14. Sri Dembeswar Roy, deposing as PW- 3, stated that he had no knowledge about the incident. 15. Sri Jeherul Islam, who was the nephew of the deceased, lodged the FIR (Ext. 3), deposed as PW-4. He stated that, on the fateful day, the deceased had gone to the market for selling cattle and that, while returning home from the market, the accused persons had killed him and buried his dead body. He stated that the dead body was recovered after about four days, on being shown by a person namely, Mr. Habibur Rahman. This person, at whose instance the dead body was recovered, was a vital witness to unearth the truth. Mr. Habibur Rahman being the first person to see the dead body, was the best person to disclose the facts and circumstances, under which the dead body was found. But, the prosecution failed to examine this vital witness. This lapse has created a gap in the chain of circumstances. The said evidence of PW-4 also does not indicate the involvement of the appellant. Though PW-4 stated that one person had informed him that the appellant and five others had killed the deceased, he did not disclose the identity of the said source. In our considered opinion, the said person was an important witness to reveal the truth. Failure to examine such a vital witness has negated the evidence of PW-4 regarding involvement of the appellant. 16. Sri Sarat Mandal, deposing as PW-5, stated that, while making search along with Police, they found the dead body in the field of Chamua Gaon. The evidence of this witness reveals that a dead body was found in the field of Chamua Gaon. He did not state as to whose dead body was found. 17. 16. Sri Sarat Mandal, deposing as PW-5, stated that, while making search along with Police, they found the dead body in the field of Chamua Gaon. The evidence of this witness reveals that a dead body was found in the field of Chamua Gaon. He did not state as to whose dead body was found. 17. Sri Jitendra Mandal, deposing as PW-6, stated that, on the date of occurrence, while returning from the market, at about 6 pm, he met the appellant and other two accused persons near his gateway. According to this witness, they had a talk and thereafter they proceeded to their respective houses. This witness also did not state anything regarding involvement of the appellant with the death of the deceased. 18. Sri Azit Roy, deposing as PW-7, stated that he met the accused persons on the road and on being asked, they replied that they had visited the road for inspection. According to this witness, at the relevant time, the appellant was engaged in construction of the road under a contract work. Therefore, the evidence of PW-7 justifies the bona fide nature of presence of the appellant on the road. 19. From the above discussed evidence, elicited by the said non official witnesses, nothing incriminating is found suggesting the involvement of the appellant with the death of the deceased. 20. Relying on the decision, held in the case of Sharad Birdhi Chand Sarda vs. State of Maharashtra, reported in AIR 1984 SC 1622 and Joseph vs. State of Kerala, reported in AIR 2000 SC 160 , the learned Additional Sessions Judge recorded the conviction on the basis of the above discussed circumstantial evidence i.e. the finding of the appellant by PWs-1 and 2, at about 9 to 10 pm, raising hue and cry, on the road, by the appellant and other accused persons; putting out the lamp, carried by PW-2; asking PW-2 to go home and the recovery of the dead body of the deceased from the field, after about four days. The learned Additional Sessions Judge held that the deceased, who was returning from the market, had probably possessed some money and in order to take away the said money, the appellant had killed the deceased. Though the said witnesses stated that the appellant and some other persons were found raising hue and cry, they said nothing regarding presence of the deceased in their midst. Though the said witnesses stated that the appellant and some other persons were found raising hue and cry, they said nothing regarding presence of the deceased in their midst. They also did not state as to why the said persons were raising hue and cry. There is no evidence regarding possession of money by the deceased. 21. The circumstances that the appellant and the other accused persons were found, on the road, raising hue and cry, that Sri Shirish Mondal had put out the lamp land carried by PW-2 and that the appellant had asked PW-2 to go home, do not, per say, lead to the only conclusion that the appellant had caused the death of the deceased and buried the dead body in the field of Chamua Gaon. 22. Law is well settled that in a criminal trial, the prosecution is required to prove the charge, brought against an accused person, beyond all reasonable doubt and the benefit of doubt should always go in favour of the accused person. 23. In the absence of any evidence, regarding presence of the deceased in the company of the appellant, presence of the appellant, on the road, creating hue and cry with some other persons, and recovery of the dead body from a field after about four days, can not conclusively lead to the findings that the appellant was involved with the death of the deceased. There is no evidence to show that the dead body was found in the place where the hue and cry took place. Putting out the lamp, carried by PW-2 and asking the said witness to leave the place also can not be sufficient to hold that the appellant and his companions had caused the death of the deceased. 24. The findings of the learned Additional Sessions Judge that the deceased was returning with money, in his pocket and that the dead body of the deceased was found in the field near the house of the appellant are not based on evidence. None of the witnesses stated that the dead body was found in the field near the house of the appellant. That apart, PWs-1 & 2, who claimed to have found the appellant, creating hue and cry, on the road, did not state that they had seen the appellant and other persons assaulting any person. None of the witnesses stated that the dead body was found in the field near the house of the appellant. That apart, PWs-1 & 2, who claimed to have found the appellant, creating hue and cry, on the road, did not state that they had seen the appellant and other persons assaulting any person. The findings of the learned Additional Sessions Judge that PWs- 1 & 2 had seen the appellant and other persons assaulting a person is not based on evidence, on-record. Therefore, the said findings can't be sustained. 25. The learned Additional Sessions Judge, relying on the statement, made under Section 164 Cr.P.C., came to the findings that the appellant and three others were found assaulting a person. But, the said witnesses, in their evidence, given as PW-1 and PW-2, did not whisper anything regarding assaulting a person by the appellant. The said statement, made, under Section 164 Cr.P.C., can not be used as substantive evidence and supersede the evidence given by the witnesses in the Court at the time of trial. The statement made under Section 164 Cr.P.C. can not be used against the accused person. It can be used only to corroborate, or contradict the witness i.e. the maker of the statement, if he is examined as witness. In view of failure of the said witness to depose regarding assault, his statement under Section 164 Cr.P.C. regarding assault can't be used in support of the prosecution version. 26. Therefore, in our considered opinion, the learned Additional Sessions Judge committed error by holding that the appellant was found assaulting a person. The evidence that the appellant and other persons were raising hue and cry and the recovery of the dead body after four days can't be sufficient to hold the appellant was guilty of committing murder of the deceased. Further, in the absence of any incriminating evidence, the absconding of the appellant, immediately after the occurrence, can't be sufficient to hold him guilty of the alleged offence. 27. The evidence, on record, as discussed above, does not inspire confidence to believe and hold that none, other than the appellant, had caused the death of the deceased. The above discussed circumstantial evidence do not form a complete chain of events, conclusively leading to the conclusion that, none other than, the appellant had caused death of the deceased. 28. 27. The evidence, on record, as discussed above, does not inspire confidence to believe and hold that none, other than the appellant, had caused the death of the deceased. The above discussed circumstantial evidence do not form a complete chain of events, conclusively leading to the conclusion that, none other than, the appellant had caused death of the deceased. 28. In view of what has been discussed above, we have no hesitation in holding that the prosecution failed to prove the case, against the appellant, beyond all reasonable doubt. Therefore, the impugned conviction and sentence are not maintainable. Accordingly, the appeal is allowed. The impugned conviction and sentence are set aside. The appellant be acquitted and set at liberty forth with, if not required in any other case. 29. Before we part with the appeal, we acknowledge the assistance, rendered by Mr. S. Agarwal, learned Counsel, as Amicus Curiae. We order that an amount of Rs. 7,000/- (Rupees Seven Thousand) be paid to Mr. Agarwal, by the State, as his remuneration. Return the LCR.