Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1090 (GAU)

Nidhu Suklabaidya v. State of Assam

2015-08-27

P.K.SAIKIA, RUMI KUMARI PHUKAN

body2015
JUDGMENT : P. K. Saikia, J. This appeal is directed against the judgment and order dated 11.04.2012, passed by the learned Sessions Judge, Karimganj in Sessions Case No. 38/2008 convicting the appellant, namely, Sri Nidhu Sukla Baidya of offence u/s 302 IPC and sentencing him to suffer imprisonment for life and also to pay a fine of Rs. 2000/- (Rupees Two Thousand) i.d. R.I. for 2 (two) months for offence u/s 302/201 IPC and R.I. for 6 (six) months and a fine of Rs. 500/- (Rupees Five Hundred) i.d., R.I. for another 1 (one) month for the offence aforesaid. 2. Being aggrieved and dissatisfied with the aforesaid judgment, the accused/appellant (hereinafter referred to as ‘accused person’) has preferred this appeal from jail citing several infirmities in the judgment under challenge. 3. We have heard Mr. I.A. Hazarika, learned Amicus Curiae for the appellant and also heard Ms. S. Jahan, learned Addl. P.P., for the State. 4. The case, projected by the prosecution in the FIR and in subsequent trial, in brief, is that on 19.01.2007, five year old daughter of Bipul Suklya Biadya (PW 1) who was the informant in the case aforesaid had gone missing. Accordingly, on 20.01.2007, O/C, at Ramkrishna Nagar Police Station (in short PS) was informed who made a missing entry on the basis of such information. It was suspected that the accused, who happened to be the son of the informant, had killed the girl aforesaid. 5. Subsequently, on 24.01.2007, a formal FIR was lodged on receipt of such FIR, police registered a case vide Ramkrishna Nagar PS Case No. 9/2007 and O/C, himself took up the investigation. During the course of investigation, the accused was arrested and was interrogated. He confessed to have killed the victim and confessed that he had buried her body in a nearby hillock. Thereafter, the accused led the police to the place where the victim was buried stealthily. 6. On the discovery of the dead body, an inquest was done on the same thorough an Executive Magistrate, thereafter, the dead body was sent to hospital for post mortem examination and examined the witnesses, did other thing needful and on the conclusion of investigation, the I/O submitted charge sheet u/s 302/201 IPC against the accused person and forwarded him to the Court to stand his trial. 7. 7. The learned Magistrate before whom charge-sheet was so laid, committed the case to the court of Sessions since the offence u/s 302 IPC is exclusively triable by the court of Session. On receipt of the case on commitment, the learned Sessions Judge, was pleased to frame charges u/s 302/201 IPC against the accused person and charges, so framed, on being read over and explained to him, the accused pleaded not guilty and claimed to be tried. 8. During trial, the prosecution has examined as many as 7 (seven) witnesses including the informant, the I/O of the case and the M/O who conducted autopsy on the dead body. The statement of the accused person u/s 313 CrPC was also recorded. The accused plea was of total denial. However, on being required the accused declined to adduce any evidence in his defence. 9. On conclusion of trial, learned Sessions Judge, Karimganj was pleased to hold the accused person guilty of offences u/s 302/201 IPC and was also pleased to convict him there-under and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in the present appeal. 10. Mr. I. A. Hazarika, learned Amicus Curiae appearing for the appellant submits that the case in hand is based entirely on circumstantial evidence but circumstances, proved by the prosecution, hardly connect the accused with the crime in question, much less, such circumstances form a chain of events unbreakable anywhere leading to lone and sole conclusion that the accused, and none else, was the author of the crime in question. 11. It has also been contended that the Doctor could not ascertain the cause of death, a prime requirement in a case of murder. More importantly, the prosecution made no other effort to ascertain as to how the girl aforesaid met her death. Being so, one of the prime conditions, necessary for convicting a person accused of offence u/s 302 IPC is found conspicuously missing. 12. It has also been contended that the prosecution case suffers from vice which is commonly called as contradictions since the prime prosecution witnesses did not disclose some episodes having serious bearing on the issue in question to the IO during the course of investigation although they chose to divulge some such episodes before the Court for the first time during trial only. 13. 13. Therefore, the evidence of prime prosecution witness cannot be relied on since such evidence is riddled with contradictions. In view of the aforesaid alleged infirmities, learned Amicus Curiae urges this court to acquit the accused person of offences u/s 302/201 IPC on setting aside the judgment under challenge. 14. On the other hand, Ms. S. Jahan, learned Addl. PP, arduously contends that it is not true that prosecution could not make out that the deceased died a homicidal death. The evidence of Doctor, coupled with other evidence including the discovery of body of the young girl from a place away from his house where she was buried together with other incriminating materials overwhelmingly demonstrate that the deceased died a homicidal death. 15. According to Ms. S. Jahan, there is evidence in the form of testimony of PW 6 to show that on the fateful noon, the accused came to the place where the deceased and PW 6 were playing together, took the victim to some unknown place on the promise of providing her some amlas. It is also in his evidence that the accused returned home some time thereafter but he did not notice the deceased with him. 16. Such evidence of PW 6, which remained wholly undisturbed, firmly demonstrates that the deceased was last seen with the accused and thereafter, she was never seen by anybody till her dead body was recovered from a nearby hillock on 24.01.2007 where her body was found buried. That being so, the accused is duty bound to show as to how the deceased met her death or about 19.01.2007. Since he fails to do so, in the facts and circumstances of the case in hand, it needs to be presumed that the accused, and none else, was the author of the crime in question. 17. The last seen theory gathered more and more support from the evidence of PWs including PW 1 which demonstrates that the deceased had gone missing w.e.f., 19.01.2007 presumably from the noon and her dead body was recovered next day from the nearby hill where she was buried. According to learned Addl. PP, there is evidence in the form of testimony of PW 7, the IO to show that the accused confessed that he had killed the deceased. 18. He made such confession while he was in custody. According to learned Addl. PP, there is evidence in the form of testimony of PW 7, the IO to show that the accused confessed that he had killed the deceased. 18. He made such confession while he was in custody. He also told the I/O that he could show the place where the body of the deceased was buried. On the basis of such information, furnished by the accused, police recovered the dead body of the deceased from a nearby hill where she was buried. 19. According to learned Addl. PP, such statement is a discovery statement as contemplated in Section 27 of the Evidence Act and the discovery statement lends more and more support to the claim of the prosecution that the accused, and none else, had killed the deceased on 19.01.2007 and then he buried her body at the place wherefrom it was recovered on 24.01.2007. 20. According to learned Addl. PP, PW 1, stated that days before the alleged incident the accused, who is the step brother of the deceased, quarreled with her and such quarrel turned quite violent. Such quarrel, according to learned Addl. PP, shows that the accused had a motive, an important ingredient in a case, based on circumstantial evidence which again pointed its finger to the accused person to establish that the accused had a reason to kill the deceased on 19.01.2007. She therefore, urges this court to dismiss the present appeal on affirming the judgment under challenge. 21. We have considered the rival submissions, advanced by the learned counsel for the parties having regard to the judgment under challenge and the evidence on record. Before we proceed further, we find it necessary to have a look at the evidence on record and the evidence of Doctor is taken up first for consideration. The Doctor who conducted autopsy on the dead body is one R. Das (PW 3). 22. According to Doctor, on 24.01.2007, he was working at Karimganj Civil Hospital. On that day, he conducted autopsy on the body of one Sangita Suklya Baidya aged about 5 years and found the following:--- “ On 24.01.2007. I was at Civil Hospital, Karimganj as Senior M & HO and that day I conducted post mortem examination on the dead body of Sangeeta Suklabaidya of Uttar Kalachop, R.K. Nagar on police requisition of R.K.Nagar P.S.Case No. 380 dt.20.01.2007 and found as :- I. External Appearance. I was at Civil Hospital, Karimganj as Senior M & HO and that day I conducted post mortem examination on the dead body of Sangeeta Suklabaidya of Uttar Kalachop, R.K. Nagar on police requisition of R.K.Nagar P.S.Case No. 380 dt.20.01.2007 and found as :- I. External Appearance. An average built female aged about 5 years whose rigor mortis was absent, eyes and mouth closed. Observations made are:- (1) Swelling of the left side of the face; (2) Bleeding from the nose; (3) Old abrasion mark found over the shoulder region; (4) Finger impression found n the left side of the neck. II. Cranium and spinal canal All organs in tact and plae. III. Thorax Walls, ribs and cartilages – intact, others found pale. IV. Abdomen Walls- Intact, stomach and its contents contained little faucal particles; small intestine and its contents contained mucoid secreting and large. Intestine and its contents contained little faucal matter, bladder contained little Urine, walls intact and other organs found pale. V. Muscles, Bones and Joints. As described in external appearance. More detailed description of injury or disease. As the cause of death could not be ascertained, so following viscera’s were preserved for forensic & chemical analysis. Part of stomach and its contents, part of liver, lung, spleen kidneys, heard and ribs. Opinion As the cause of death could not be ascertained, so following viscera’s were kept preserved for forensic & chemical analysis Part of stomach and its contents, part of liver, lung, spleen, kidney, heart and ribs. Ext. 2 is the post mortem report and Ext.2(1) is my signature” 23. The evidence of doctor demonstrates that the death of the victim could not be ascertain for which he preserved the vicera for Forensic and Chemical test. 24. So situated, let us examined the evidence of star prosecution witness who is none other than PW 6. He is Rahul Das, a boy of about 8 years of age. In his evidence, he is found saying that on the day of incident, he was playing with Sangita (since deceased) in the courtyard of informant house. At that time, the accused came there and asked Sangita to go with him to somewhere on the promise that he would give her amla, if she accompanied him to such place. 25. Being promised, he took the victim to some place towards the hill side. At that time, the accused came there and asked Sangita to go with him to somewhere on the promise that he would give her amla, if she accompanied him to such place. 25. Being promised, he took the victim to some place towards the hill side. It is also in his evidence that the accused told him to go home and promised him that he would bring amla for him as well. Thereafter, he did not see the deceased but later he heard that the deceased had died. Though this witness was subjected to cross examination, nothing did emerge there-from to show that what he had stated before the court during trial cannot be relied on although he appeared to be boy of about 8 years of age on the date of incident in question. 26. In his evidence, PW 1, Bipul Sukly Baidya, had stated that the accused is his son from his first wife whereas the deceased is her daughter from the second wife. According to him, about 4/5 days prior to the date of incident, the accused had an altercation with PW 1. On that day at about noon, her daughter was playing in his courtyard with one Rahul Das (PW6). Mother of the victim was not in the house at that time since she went to nearby place to fetch water. 27. When she returned home she did not find Sangita, their daughter in the house for which she made a query and came to know from Rahul that the accused had taken Sangita to some place towards the hill with the promise that he would give her amla. Wife of PW 1 made a search for her but same yield no result. On coming home, he got all those information and he too made a search for his daughter but once again in vain. 28. Since they could not trace out their daughter, he reported the matter to O/C Ramkrishna Nagar Police Station suspecting the accused to be the person responsible for disappearance of his daughter. On the basis of such information, a missing entry was made next day of the incident. Thereafter, he lodged an FIR with Ramkrishan Nagar PS on 24.01.2007 which he proved as Exbt. 1. 29. On the basis of such information, a missing entry was made next day of the incident. Thereafter, he lodged an FIR with Ramkrishan Nagar PS on 24.01.2007 which he proved as Exbt. 1. 29. In the meantime, the accused was arrested and some time thereafter, police had recovered the dead body of his daughter from the jungle on the basis of information furnished by the accused person while he was in custody. Police caused an inquest to be done on the body of the victim by a Magistrate. The suggestion that the deceased died due to fall from tree was denied by PW 1. 30. PW 2, Smti. Jayanti Sukla Baidya is mother of the victim girl. According to her, on the date of occurrence at about 10.30 am, her daughter was playing in the courtyard with one Rahul Das (PW 6) although she was not there in her house at that time since she went to nearby place to fetch water. When she returned home, she did not find her daughter there for which she enquired Rahul as to where Sangita had gone in the meantime. 31. Rahul told her that the accused took her to some place promising her to give her some amlas. Though she made a search for her daughter for some time, she could not find her. The accused came back at about 3 pm and when she asked him where Sangita had gone, he denied his going with Sangita to some place on that day. Since her daughter could not be traced out, information was given to police verbally following day her husband. 32. In due course, her husband lodged an FIR with police and thereafter, the accused was arrested and on being shown by the accused person, the dead body of the deceased was recovered from a place where it was buried. In her cross examination, she stated that she did not go with the police to the place wherefrom the dead body of her daughter was retrieved. 33. PW 4, Sri Mantu Das, a next door neighbor of the informant, deposed that few days before the alleged incident, one day in the morning, he heard hue and cry in the house of the accused person. Then he went there and found that a quarrel was going on between the informant and the accused person. 33. PW 4, Sri Mantu Das, a next door neighbor of the informant, deposed that few days before the alleged incident, one day in the morning, he heard hue and cry in the house of the accused person. Then he went there and found that a quarrel was going on between the informant and the accused person. 4/5 days thereafter, one day, at about 11 am, his son and the deceased were playing in the house of PW. He learnt that the accused came there and then took Sangita to some place asking PW 6 to go home. 34. According to PW 4, he also learnt that Sangita went with the accused since the accused promised her to give amla if she accompanied her. At about 1 pm, accused returned home but the deceased was not with him. A search was made for her but she could not be found. Thereafter, an FIR was lodged by the father of the victim girl and thereafter, the accused was arrested. 35. He also learnt that after the arrest of the accused person, the body of the deceased was recovered from a place where it was buried on being shown by the accused person. The place wherefrom the body was recovered is situated in a nearby hillock. It is also in his evidence that while in custody, the accused confessed that he killed the deceased and then buried her dead body in the place aforementioned. The wearing apparels of the deceased were recovered on the strength of seizure list Exbt. 3. 36. PW 5, Sri Paresh, a co-villager of the informant, deposes that the daughter of the informant went missing one day. All suspected the accused to be the person responsible for disappearance of the daughter of the informant. Thereafter, the accused was arrested by police and during his detention, he confessed his guilt and on the basis of confession and on being led by the accused person, the dead body of the deceased was recovered from the place where it was buried. 37. According to him he was present when the dead body of the aforesaid girl was recovered by police on being shown by the accused person from the place aforesaid. The suggestion that the dead body was not recovered from the place aforesaid where it was buried on being shown by the accused person was denied by PW 5. 38. 37. According to him he was present when the dead body of the aforesaid girl was recovered by police on being shown by the accused person from the place aforesaid. The suggestion that the dead body was not recovered from the place aforesaid where it was buried on being shown by the accused person was denied by PW 5. 38. Above being the evidence on record, let us see how far such evidence makes out the allegation leveled against the accused person. We have also found from the testimony of Doctor who conducted autopsy on the dead body that he could not render opinion regarding the death of the deceased. So situated, let us consider the other evidence on record. We have also found that the prime prosecution witness is PW 6, Rahul Das, a boy of 8 years of age. It is found from the record that such a witness was not administered oath as he was found to be boy of 8 years of age only. 39. On perusal of the evidence of PW 6, it is found that on the fateful day in the noon, he along with the hapless child was playing in the courtyard of the accused/complainant. When they were playing, the accused came there and took his step sister with him on the plea that he would give her amla, a kind of nutritious fruit. The accused also asked PW 6 to go home on the promise that he would also bring amla for him as well. However, he did not see the victim girl thereafter. 40. It may be stated that oath was not administered to PW 6. However, from his examination, it appears that this child witness could give very rational and reasonable answers to questions which were put to him during cross-examination. That apart, despite he being put to cross-examination nothing could be elicited there-from to show that he is a witness who cannot be relied on for any reason whatsoever. Being so, we have found his evidence to be reliable. 41. The other witnesses on whom prosecution placed heavy reliance are PW 1, Bipul Suklabaidhya and PW 2, Smti. Jayanti Suklabaidya who were examined as PW 1 and PW 2 respectively. In her evidence, PW 2 deposes that one day at about 10-10.30 am, she went out to fetch water. Being so, we have found his evidence to be reliable. 41. The other witnesses on whom prosecution placed heavy reliance are PW 1, Bipul Suklabaidhya and PW 2, Smti. Jayanti Suklabaidya who were examined as PW 1 and PW 2 respectively. In her evidence, PW 2 deposes that one day at about 10-10.30 am, she went out to fetch water. Returning home, she did not find Sangita in their house and therefore, she asked Rahul Das with whom she was playing little before. PW 6 told her that the accused took her daughter with him stating that he would give her some amlas. On being so informed, she waited for the accused to come home. 42. When the accused came home sometime thereafter, he enquired him about her daughter whereupon he told her (PW2) that he did not know where her daughter had gone. In that connection, a missing entry was given verbally to the concerned police officer next day of the incident. Following day, her husband (PW 1) lodged an FIR. Police arrested the accused person and while in custody and on being shown by him the police retrieved the body of the victim from nearby hillock where it was buried PW 1, the father of the deceased girl supports, said claims of PW 2. 43. The evidence of PW 4 and PW 5 further demonstrates that they heard that the accused had taken the victim to the nearby jungle on the fateful noon on the plea of giving her amlas and since then she remained missing till her dead body was recovered from the place in the nearby jungle, where it was buried on 24.01.2007 44. PW 7, IO too deposes that after the lodging of the FIR by PW 1, the accused was arrested. After his arrest, he confessed his guilt and on the basis of information furnished by him while he was in police custody, PW 7 retrieved the dead body from the nearby jungle where the dead body was buried. Such evidence of PW 7 stands fully corroborated in view of evidence rendered by other PWs, PW 1, PW 2, PW 4 and PW 5 in particular. 45. From the above discussion, we have found that the prosecution has proved the following circumstances. Such evidence of PW 7 stands fully corroborated in view of evidence rendered by other PWs, PW 1, PW 2, PW 4 and PW 5 in particular. 45. From the above discussion, we have found that the prosecution has proved the following circumstances. They are:- (i) On 19.01.2007, around the noon, the victim and PW 6 were playing in the courtyard of the PW 1; (ii) The accused came there around the same time and took the victim somewhere on the plea that he would give her amla; (iii) The accused was seen taking the victim towards the jungle nearby, (iv) The victim remained missing from such date, (v) Nobody knew the whereabouts of the victim once she got disappeared on 19.01.2007; (vi) All suspected the accused to be the person responsible for disappearance of the girl aforesaid (vii) The accused was arrested following the lodging of the FIR on 24.01.2007; (viii) While in custody, the accused confessed before police to have killed the deceased and on the basis of information, he furnished while in custody, the body of the victim was recovered from the nearby jungle where it was buried. 46. When all these circumstances are read together, they invariably lead to an irresistible conclusion that the accused, and none else, was the person responsible for killing the deceased on 19.01.2007 and that he was the person who having killed the victim buried her body in the nearby jungle in order to save himself from punishment. 47. We have found that few days prior to the alleged incident, the accused got involved in a fierce quarrel with the father of the deceased which attracted the attention of neighbors including PW 4. Such incident in the fact and circumstances of the case in hand shows that the accused had a motive in killing the victim who happened to be his step sister. 48. Such incident in the fact and circumstances of the case in hand shows that the accused had a motive in killing the victim who happened to be his step sister. 48. We have also found that all incriminating circumstances including (i) the accused taking the victim from her house to the nearby jungle, (ii) her remaining missing from that point of time till the discovery of her body from the place where it was found buried and (iii) the discover of the body of the aforesaid luckless girl on the basis of information furnished by the accused while he was in custody, were notified to the accused person seeking his explanation thereto but he failed to offer any plausible explanation to those incriminating circumstances. 49. In view of law laid down in (2000) 1 SCC 471 (State of Maharastra vs. Suresh), it needs to be held that such failure on the part of the accused to explain incriminating circumstances staring direct at him provides missing link, if any, in the prosecution case. 50. We have already found that the Doctor could not give a definite finding regarding the death of the deceased. But then, in view of facts and circumstances proved by prosecution, there remains no doubt that the death of the victim was homicidal in nature and the accused was the person responsible for causing the death of his step sister. 51. In view of what we have discussed hereinbefore and what have emerged there-from, we are of the opinion that the prosecution has proved the charge under Section 302 IPC against the accused person beyond all reasonable doubt and as such, the learned trial court has rightly convicted him there-under and sentenced him to punishment as aforesaid. 52. Being so, the judgment under challenge invites no interference from this Court of Appeal. 53. Consequently, the present appeal, being found devoid of merit, is dismissed. 54. We deeply appreciate the assistance rendered by the learned Amicus Curiae, Mr. I. A. Hazarika in disposing this appeal. Accordingly, we direct the State Legal Services Authority to pay him Rs. 7,500/- (Rupees Seven Thousand Five Hundred) only as being his professional fees within a period of 3 (three) months from the date of receipt of copy of this judgment. 55. Return the LCR.