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2015 DIGILAW 1013 (GAU)

Bulen Saikia and Ors. v. State of Assam

2015-08-12

C.R.SARMA, PRASANTA KUMAR SAIKIA

body2015
C.R. Sarma, J.:-- 1. This appeal is directed against the judgment and order, dated 18.01.2011, passed by the learned Sessions Judge, Jorhat, in Sessions Case No. 101 (JJ)/2008, whereby the learned Sessions Judge convicted the appellant Sri Bulen Saikia under Section 364 of the Indian Penal Code (for short, IPC) and sentenced him to suffer rigorous imprisonment for 3 (three) years under Section 364 IPC. The learned Sessions Judge also convicted the appellants for the offences under Sections 302 and 201 IPC and sentenced to undergo imprisonment for life under Section 302IPC and pay fine of Rs. 3000/-, in default and suffer rigorous imprisonment for 2 (two) months and imprisonment for 1 (one) year and pay fine of Rs. 1,000/-, in default, further rigorous imprisonment for 1 (one) month for their conviction under Section 201 IPC. It was also directed that all the sentences shall run concurrently. Aggrieved by the said conviction and sentences, the convicted persons, as appellants, have preferred this appeal, from jail. As there was none to represent the appellants, Ms. D. Buragohain, learned Counsel, has been appointed as the Amicus Curiae to represent the appellants. 2. The prosecution case, as may be necessary for the purpose of disposal of this appeal, may, in brief, be stated as follows: On 06.09.1999, at about 9 P.M., appellant Sri Bulen Saikia visited the house of the informant and took away his minor daughter, aged about 13 years (hereinafter called 'the deceased'). Though she was not traceable for 20 (twenty) days, on 26.09.1999, the informant i.e. father of the deceased, came to know, from the villagers, that the dead body of his daughter was recovered, and on the same day, he lodged an FIR with the Police. 3. On receipt of the FIR, Police registered a case, under Sections 364/302 IPC and launched investigation into the matter. During the investigation, Police visited the place of occurrence, disentered the dead body from the place, wherein the same was buried. After conducting the inquest report, Police sent the dead body for post mortem examination and recorded the statement of the witnesses. 4. At the close of the investigation, Police submitted charge-sheet against the appellants for the offences under Sections 364/302/201 IPC. The learned Chief Judicial Magistrate, Jorhat committed the case to the Court of Sessions. 5. The learned Sessions Judge framed charges under Sections 364/302/201 IPC against the accused persons. 4. At the close of the investigation, Police submitted charge-sheet against the appellants for the offences under Sections 364/302/201 IPC. The learned Chief Judicial Magistrate, Jorhat committed the case to the Court of Sessions. 5. The learned Sessions Judge framed charges under Sections 364/302/201 IPC against the accused persons. The charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. 6. In order to prove their case, the prosecution examined as many as 10 (ten) witnesses, including the Medical Officer (PW-6), who performed autopsy on the dead body of the deceased. The Investigating Police Officers were also examined. 7. At the close of the examination of the prosecution witnesses, the accused persons were examined, under Section313 Cr.P.C. They denied the allegations, brought against them and declined to adduce defence evidence. 8. Considering the evidence, on record, the learned Sessions Judge found the appellants guilty of the said offence and accordingly, convicted and sentenced them, as indicated above. 9. Ms. D. Buragohain, learned Amicus Curiae, referring to the evidence, on record, has submitted that there is no direct evidence against the appellants indicating their involvement with the death of the deceased. The learned Amicus Curiae has submitted that there is no allegation regarding kidnapping against the appellant Sri Durga Ageria and that though the mother of the deceased stated that the victim girl was taken away by the appellant Sri Bulen Saikia from her house, her silence for about 20 (twenty) days raises doubt about the veracity of her evidence. It is also submitted that inordinate delay of 20 (twenty) days in filing the FIR, that too, in a case of missing of a minor girl is fatal for the prosecution. It is also submitted that there is no contradiction in the evidence of the mother (PW-2) of the deceased. 10. The learned Amicus Curiae has also submitted that there is no substantive evidence to show that the appellants had killed the deceased and disposed of the dead body with a view to cause disappearance of evidence. In view of the above, the learned Amicus Curiae has submitted that the prosecution failed to prove the charges, brought against the appellants, beyond all reasonable doubt, and as such, the appellants are entitled to be acquitted. 11. Refuting the said argument, advanced by the learned Amicus Curiae, Ms. In view of the above, the learned Amicus Curiae has submitted that the prosecution failed to prove the charges, brought against the appellants, beyond all reasonable doubt, and as such, the appellants are entitled to be acquitted. 11. Refuting the said argument, advanced by the learned Amicus Curiae, Ms. S. Jahan, learned Additional Public Prosecutor, referring to the evidence of the mother i.e. PW-2, has submitted that the PW-2 specifically stated that the appellant Sri Bulen Saikia had taken the minor girl from her house and that after such taking i.e. after about 20 (twenty) days, the dead body of the deceased was found. The learned Additional Public Prosecutor, referring to the said circumstances, has submitted that, applying the last seen theory, it can be concluded that none except the appellants had caused the death of the deceased. 12. In support of the said contention, the learned Additional Public Prosecutor has also referred to the extra judicial confession made by Sri Durga Ageria it is stated that Sri Durga Ageria stated before the Public that the victim girl was taken to his house by Sri Bulen Saikia and that after she was killed by Sri Bulen Saikia, both of them had buried the dead body. 13. Drawing our attention to the evidence, given by PW-4, the learned Additional Public Prosecutor has submitted that PW-4, on being asked by Police to identify the house of Sri Durga Ageria, had accompanied the Police to the house of Sri Durga Ageria and that he stated that Durga Ageria told them that the deceased was first taken by another person to his house, wherein, she was killed by the said person. It is also submitted that PW-4 had stated that Sri Durga Ageria had shown the Police the place where the dead body was buried and that the same was disentered at the instance of Sri Durga Ageria. 14. In view of the above, the learned Additional Public Prosecutor has submitted that there are sufficient incriminating evidences against the appellants and that the learned Sessions Judge committed no error by recording the conviction and sentences, as indicated above. 15. In order appreciate the arguments, advanced by the learned Counsel for both the parties and to examine the correctness of the impugned judgment and order, we have carefully perused the evidence, on-record. 16. 15. In order appreciate the arguments, advanced by the learned Counsel for both the parties and to examine the correctness of the impugned judgment and order, we have carefully perused the evidence, on-record. 16. From the evidence, it appears that PW-2 i.e. mother of the deceased, stated that the victim girl was taken from her house by the appellant Sri Bulen Saikia. Her husband i.e. PW-1 was absent at that time. PW-1 i.e. husband of PW-2 and father of the deceased stated that, on his return from market, he came to know, from his wife, that their daughter was taken by the appellant Sri Bulen Saikia He further stated that he came to know from villagers that the dead body of his daughter was found. 17. After getting the said information, regarding recovery of the dead body, PW-1 lodged an FIR. It is quite surprising as to why the FIR was not lodged immediately after the taking of the girl. The FIR has been exhibited as Ext. 1. In the FIR, it was stated that the delay was caused due to searching the missing girl. The said explanation is not sufficient to inspire confidence. Therefore, we have no hesitation in holding that the delay, in lodging the FIR, has not been properly explained. The said unexplained inordinate delay of 20 (twenty) days raises serious doubt about the veracity of the prosecution story. 18. PW-3 is the grandfather of the deceased. He used to live in the same house with the PW-1 and PW-2. This witness stated that he did not know as to how his granddaughter was missing. His said statement indicates that he had no knowledge or information about the taking of the victim girl by the appellant Sri Bulen Saikia. 19. As the PW-3 also used to live in the same house with PW Nos. 1 and 2 and if the deceased was taken away by Sri Bulen Saikia, there was no reason as to why PW-3, who was the eldest member of the family, could not known about such serious matter. According to PW-2 i.e. the mother of the deceased, the deceased was taken away in her presence. The silence of PW-3 in this regard raises doubt about the evidence given by PW-2. It is quite doubtful as to whether the deceased was taken by Sri Bulen Saikia. 20. According to PW-2 i.e. the mother of the deceased, the deceased was taken away in her presence. The silence of PW-3 in this regard raises doubt about the evidence given by PW-2. It is quite doubtful as to whether the deceased was taken by Sri Bulen Saikia. 20. PW-4, one of the villagers, stated that he had accompanied the Police to the house of the appellant Sri Durga Ageria. He stated that Durga Ageria had told that another person had taken the girl to his house and the said person had killed the girl. According to this witness, Durga Ageria had admitted that he joined the said person in burning the dead body. He further stated that Durga Ageria had led the Police to the place where the dead body was buried and the dead body was recovered from the said place. From the evidence of this witness, it appears that Sri Durga Ageria had made the said statement before the Police. Hence, statement made by the appellant Sri Durga Ageria, regarding his culpability in joining the killer of the deceased, in burning the dead body, can't be accepted as confessional statement. 21. Though PW-4 had stated that Sri Durga Ageria had led the Police to the place, where the dead body was buried, from the evidence of the Investigating Officer, who deposed as PW-8, there is nothing to find that the appellant Sri Durga Ageria had led the Police to the discovery of the dead body. Hence, there is no evidence regarding leading to the discovery of any fact Fact remains that existence of the dead body, in the said place, was already known to the appellant and public, including the P W-1. Therefore, the theory of leading to discovery is not applicable in the present case. 22. Sri Molay Bora, PW-10, who accompanied the Police at the time of recovery of the dead body, deposed that the accused Durga Ageria confessed that he killed the deceased and buried him. From his said evidence, it appears that, the said appellants had made the alleged confession in the custody of Police. Hence, the said confession, even if made, can't be acted upon, inasmuch as the same is hit by Section 27 of the Evidence Act. 23. From his said evidence, it appears that, the said appellants had made the alleged confession in the custody of Police. Hence, the said confession, even if made, can't be acted upon, inasmuch as the same is hit by Section 27 of the Evidence Act. 23. The Investigating Officer did not make any whisper indicating that the appellant Sri Durga Ageria had made any statement regarding leading to discovery, while in custody. Therefore, finding of the dead body, under the said circumstances, can not be treated as incriminating evidence against the appellant Sri Durga Ageria. Hence, it is not safe to hold that they had committed the offence of causing disappearance of evidence of the crime. 24. The Medical Officer, who was examined as P W-6, stated that he performed the post mortem examination of the dead body. The said Medical Officer stated that no injury was found on the dead body. From his evidence, it appears that the dead body was found in decomposed state and the cause of the death could not be ascertained. He exhibited the post mortem report as Ext. 4. 25. PW-7, who also took part in the investigation, did not state anything incriminating against the appellants. 26. PW-9, Sri Rup Kumar Mazumdar, stated that he conducted the inquest in respect of the dead body and prepared the inquest report. He stated that dead body was found in totally bloated condition and that no mark of injury was noticed on the dead body. He exhibited the inquest report as Ext. 2. 27. From the evidence of PWs- 6 and 7, it is found that no mark of injury was found in respect of the dead body of the deceased and as per the evidence given by the Medical Officer (PW-6), cause of death of the deceased could not be ascertained. 28. Though PW-2 i.e. mother of the deceased, stated that the victim was taken away by the appellant Sri Bulen Saikia, considering the delay in finding the dead body of the deceased and in view of absence of any corroborative evidence, it is not safe to hold the appellant Sri Bulen Saikia guilty of the offence under Section 302 IPC, on the basis of the said last seen theory. 29. 29. There is no evidence, on-record, to show that, during the said long intervening period i.e. from the date of taking the deceased from the house of PW-2 and till the date of recovery of the deceased, she had not fallen in the custody of some other person. 30. We have already noticed that due to want of corroboration, coupled with the unexplained delay in filing the FIR, it is not safe to rely on the evidence of PW-2 to believe that the deceased was taken by the appellant Sri Bulen Saikia. 31. The above discussed circumstances i.e. missing of the deceased from the house of the appellant and the subsequent recovery of the dead body of the deceased, do not conclusively lead to believe that none other than the appellants had caused the death of the deceased. 32. In view of what has been discussed above, we find that the prosecution failed to prove the case, beyond all reasonable doubt and as such the appellants are entitled to be acquitted. We find sufficient merit in this appeal. 33. Accordingly, the appeal is allowed. The appellants are acquitted. They be set at liberty forthwith, if not wanted in any Other case (s). 34. Before we pan with this record, we acknowledge with appreciation the service, rendered by Ms. S. Buragohain, learned Amicus Curiae and accordingly we order that an amount of Rs. 7,500/- (Rupees Seven Thousand Five Hundred) be paid to the learned Amicus Curiae by the Assam State Legal Services Authority, as her remuneration. The LCR be returned.