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2015 DIGILAW 135 (GAU)

Siman Paharia v. State of Assam

2015-02-06

C.R.SARMA, M.R.PATHAK

body2015
Judgment M.R. Pathak, J. 1. This Criminal Appeal has been preferred by the accused appellant Sri Siman Paharia from jail against the Judgment of conviction dated 30.09.2011 passed by learned Sessions Judge, Morigaon in Sessions Case No. 75/2009 arising out of GR Case No. 1436/2008 in Jagiroad Police Station case No. 239/2008 under Section 302 of the Indian Penal Code (IPC, in short) and sentencing him to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 3,000, in default, rigorous imprisonment for 6 months. We have heard Mr. Debasis Nandi, learned Amicus Curiae for the accused appellant and Mr. Dhanesh Das, learned Additional Public Prosecutor, Assam representing the State. 2. It is seen from the records that one Smti. Ramani Murmu on 16.12.2008 lodged an FIR around 03:30 PM before the Officer-in-Charge of Nellie Out Post under Morigaon District stating that in the evening of 14.12.2008 her 16 years old son Krishna Murmu went to the house of Sri Simon Paharia at village Agrakuchi to pay back an amount of Rs. 5.00 to Simon's wife and he did not return honie on that day and came home around 05.00 AM on the next day morning in an unwell condition. Seeing him groaning on the bed when she enquired he replied that he is having severe pain in his stomach and chest and thereafter she took him to Nellie Hospital, for his treatment and thereafter brought him back to home and around 03.00 a.m., on the said date he intended to go to toilet and while she was taking him out and was holding him, he fell down on the door way and died on the spot. At the time of his death, his stomach was swollen up. It is Smti. Binita Paharia and Smti. Palikar of village Agrakuchi when came to know about the death of her son, they visited her house and from them she came to know that about 06.00 p.m. on 14.12.2008 said Krishna Murmu came to their house in an unwell condition and stayed overnight and from the those two girls she learnt that when Krishna Murmu fell down on the ground after being slapped by Sri Siman Paharia, S/o Badul Paharia, he injured Krishna by stepping and kicking him on his body, consequent to which her son died. 3. 3. On the receipt of the said FIR, Nelli out post registered it as GD Entry No. 302 dated 16.12.2008 at 02.00 PM and forwarded it to the Officer-in-charge of Jagiroad Police Station for registering it. Accordingly, on receipt of the same a GD Entry vide No. 551 dated 16.12.2008 was Made I the Jagiroad Police Station and also registered Jagiroad Police Station Case No. 239/2008 corresponding to GR Case No. 1436/2008 under Section 302 of the IPC. 4. During investigation, police visited the place of occurrence, drawn its sketch map, conducted the inquest on the dead body and prepared the Inquest Report, sent the dead body for post mortem examination, recorded the statements under Section 161 Cr.P.C. of the persons who are acquainted with the facts of the case and arrested the accused appellant. On receipt of the Post Mortem Report of the deceased Krishna Murmu and on completion of the investigation, police filed the Charge-Sheet vide No. 38/2009 dated 31.03.2009 in said Jagiroad P.S. Case No. 239/2008 under Sections 302 of the IPC against the accused/appellant finding sufficient evidence against him. 5. On receipt of said Charge-Sheet along with the Post Mortem Report/Sketch Map etc., learned Additional Chief Judicial Magistrate, Morigaon vide his order dated 28.07.2009 committed the case records of said GR Case No. 1436/2008 to the Court of learned Sessions Judge, Morigaon as the offence under Section 302 IPC is exclusively triable by the Court of Sessions. After the receipt of the said case records it was duly registered and numbered as Sessions Case No. 75/2009. 6. On 14.08.2009, learned Sessions Judge, Morigaon in sessions case No. 75/2009 framed charge against the accused appellant under Section 302 IPC, which was read over and explained to him, against which the accused pleaded not guilty and claimed for trial of the case and accordingly the trial commenced. 7. The prosecution in order to bring home the charges has examined 12 (twelve) witnesses including the Investigating Officer of the case, the Autopsy Doctor who conducted the Post Mortem on the deceased and the informant of the case amongst others. The defence side did not examine any witness. 8. On completion of recording of the evidence of the prosecution, Section 313 Cr.P.C. statement of the accused appellant was recorded on 22.09.2011. The defence side did not examine any witness. 8. On completion of recording of the evidence of the prosecution, Section 313 Cr.P.C. statement of the accused appellant was recorded on 22.09.2011. The learned Sessions Judge, Morigaon upon appreciation of the evidence, adduced by the prosecution, has recorded the Judgment of conviction based on the available evidence. 9. Mr. Nandi, learned amicus curie, appearing for the accused appellant submitted that there being no eye witness to the occurrence and the case is based on circumstantial evidence, which are in favour of the appellant. Referring to the judgment of conviction passed by the learned Trial Court, he submitted that though the prosecution case is based on the circumstantial evidence, the prosecution, however, could not prove any incriminating circumstances against the appellant and hence, the trial Court ought not to have convicted the appellant. 10. The learned amicus has submitted that the accused appellant in his Section 313 Cr.P.C. denied the allegations against him, stated that he did not kill Krishna, According to Mr. Nandi, as the prosecution has failed to bring home the charges levelled against the appellant beyond all reasonable doubt and there being no incriminating circumstantial evidence against the appellant, the Judgment of conviction and sentence imposed by the trial Court upon the appellant needs to be set aside. 11. On the other hand, Mr. Dhanesh Das, learned Additional Public Prosecutor, Assam supporting the Judgment of conviction has submitted that it is evident from the deposition of the witness examined that it is the accused who is instrumental in killing the deceased Krishna. The Additional Public Prosecutor submitted that the Trial Court has rightly recorded the Judgment of conviction. 12. We have considered the submissions advanced by the learned counsels appearing for the parties and also perused the evidence on record, apart from the Judgment of conviction recorded by the trial Court. 13. In order to appreciate the arguments, advanced by the learned counsels appearing for both the parties and to examine the correctness of the impugned Judgment and Order of conviction, it will be appropriate to briefly scrutinize the evidence on record. 14. 13. In order to appreciate the arguments, advanced by the learned counsels appearing for both the parties and to examine the correctness of the impugned Judgment and Order of conviction, it will be appropriate to briefly scrutinize the evidence on record. 14. The PW-1, namely, Khudiram Mirdha in his evidence deposed that the accused appellant is his son-in-law as he has been married to his niece, daughter of his elder brother and he does not know who killed the deceased Krishna Murmu and on the morning he could learn from villagers that Simon assaulted Krishna. In his cross examination he stated that someone told him that Simon assaulted Krishna, but he do not know about the truth of the fact. 15. P.W. 2, Smti. Binita Paharia, in her evidence submitted that Simon Paharia is her cousin, son of her mother's elder sister and Krishna was his brother as he tied 'Rakhi' on his hand who leaves in Ulukuchi and that Simon lives in front of their house. Krishna came to Jayanti Paharia's house and on enquiry, seeing him in road; he replied that he will be going to the wife of Simon to give her five rupees. She also stated that when Krishna offered said five rupees to Simon's wife, namely, Chori, Simon was present at his house and suspecting them, Simon slapped Krishna, due to which Krishna fell on the Courtyard in Simon's house and then Simon kicked him on his chest and thereafter, Krishna came to their house around 07.00 p.m. and Krishna told them that Simon assaulted him. Krishna complained of severe pain in his abdomen and a choorni was tied on his abdomen. Krishna stayed in their house over night She and her cousin, during the night applied massage in the injuries of Krishna, who left for his home in next morning and narrated the incident to his mother and others and died after reaching his home on the same day. Krishna stayed in their house over night She and her cousin, during the night applied massage in the injuries of Krishna, who left for his home in next morning and narrated the incident to his mother and others and died after reaching his home on the same day. In her cross examination, P.W. 2 stated that when Krishna reached their Courtyard, people from their neighboring houses did not come there and as Krishna's house was at a distance of 1 Km away from their house and as she had injuries on her legs and that only lady members were present in their house, no one could go to the house of Krishna to inform the same and Krishna could not go home as he was unable to move. She stated that earlier Krishna did not suffer like that as he use to visit their house and that the Krishna on reaching her house was unable to talk for about half an hour She denied the suggestions that Krishna did not state that Simon slapped him and kicked him. 16. P.W. 3, namely, Sumi Panika, in her evidence stated that on the night of the incident she stayed in the house of Binita (P.W. 2) and at night around 03.00 a.m., Krishna came to the house of Binita and when he was asked, he stated that he went to pay Rupees five to Simon's wife which he had to pay her for an adjustment in payment at Tea Estate and while he was coming out from the Simon's house, he assaulted Krishna. She also deposed that on reaching the house of Binita Krishna vomited blood and he tied a urni around his. abdomen as he had pain in it and slept for the remaining part of the night and was groaning out of pain. They massaged mustard oil on his legs and in the morning he left for his house at Uluguchi. In her cross examination, she denied the suggestion that injured Krishna did not vomit blood but she stated that she may not have stated to the Investigating Officer about it. In cross she also stated that that Krishna on reaching Binita's house called them and then they woke up. In her further cross examination she stated that Binita's Aunt stayed in the house with her and the other family members were absent. In cross she also stated that that Krishna on reaching Binita's house called them and then they woke up. In her further cross examination she stated that Binita's Aunt stayed in the house with her and the other family members were absent. She denied that due to their torture, Krishna sustained injuries and consequently died and she also denied the suggestion that the Krishna did not tell him about the assault on him by Simon. 17. P.W. 4, namely, Salma Mula, in her evidence deposed that Krishna stayed in their house and he was absent on Sunday and on Monday around 05.00 a.m. he reached home. She stated that he complained abdominal pain, but he did not state anything to them. It is Binita and Sumi who informed that Simon assaulted Krishna During her cross examination, P.W.4 stated that she talked with Krishna but he did not state about the assault on him by anyone and he was not suffering from any ailment to her knowledge. She denied the suggestion that she deposed falsely that Binita and Sumi informed her about the assault on Krishna by Simon. She stated that Krishna was not in a position to talk when he reached home and he was simply stating about pain. 18. P.W. 5, namely, Smti. Soni Paharia, in her evidence deposed that the accused is her husband and Krishna Murmu went to their home around 06.00 p.m. while her husband was sitting and she was sleeping inside the house. She stated that Krishna pushed her blouse, she cried and then her husband slept Krishna for once and Krishna went away, returned to his house and died two days thereafter. Since the said P.W. 5 supported her statement made before the Investigating Officer, the concerned Public Prosecutor sought permission from the Court to cross examine the said witness and the learned Trial Court on considering the statement made by said P.W. 5 before the Investigating Officer and her deposition, before the Court, it allowed the Public Prosecutor to cross examine the said P.W. 5. When the Public Prosecutor read over the statement that she made before the Investigating Officer and cross examined her, P.W. 5 denied making any such statements as recorded by the I.O. on 14.11.2008 and also stated that she does not know why the I.O. has recorded such statement and further stated that she does not have any enmity with the said I.O. In her cross, by the defence, she stated that she told the I.O. that when Krishna pushed her clothes and her husband slapped Krishna on his cheek. 19. P.W. 6, namely, Arun Deka, in his evidence deposed that he heard from the villagers about the death of Krishna but he stated that he do not know who injured him or how he died and only heard from the villagers that Simon and Krishna had a quarrel. 20. P.W. 7, namely, Smti. Ramoni Mura, the informant, and mother of the deceased in her evidence deposed that in the evening of Sunday Krishna went to the house of Simon to pay Rs. 5/- to his wife and return home on the next morning are informed that Simon had assaulted him. She stated that he complaint with his abdominal pain and was taken to Nelli Public Health Centre where he was administered two injections and saline and thereafter she took him back to home. P.W.7 also stated that he was unable to move and could not pass urine. She further deposed that Krishna told her that Simon assaulted him and that later he died at night. She also stated that she put her right thumb impression on the FIR filed by her and also a witness to the inquest, where she put her signature. In her cross examination P.W. 7 stated that Krishna was in a position to talk when he reached home around 06.00 a.m. and he did not suffer from any problem, ailment etc. She denied the suggestion that Simon did not assault Krishna. She also denied the suggestion that she did not state the I.O. that Krishna told her that Simon assaulted him. 21. P.W. 8, namely, Sri Dinesh Gour, a signatory to the inquest report of the deceased, deposed that he know the accused Simon Paharia and that Krishna Murmu was killed about a year back and that police and magistrate came to the house Krishna Murmu and held inquest on his dead body. 21. P.W. 8, namely, Sri Dinesh Gour, a signatory to the inquest report of the deceased, deposed that he know the accused Simon Paharia and that Krishna Murmu was killed about a year back and that police and magistrate came to the house Krishna Murmu and held inquest on his dead body. In his cross examination he stated that he do not know who killed Krishna 22. P.W. 9 Sri Sankar Paharia is another signatory to the inquest conducted on the dead body of the Krishna and he dows not know anything about the incident. 23. P.W. 10, Dr. Dhrien Chandra Nath, the Autopsy Doctor, who conducted Post Mortem on the dead body of Krishna Murmu, in his evidence deposed that on 16.12.2008 while he was me Medical & Health Officer at Morigabn Civil Hospital, he performed post mortem examination on the dead body of Krishna Murmu identified by two accompanied constables and found the following:-- "A male and stout with average built, blood stain and froth seen in the mouth, swollen eye balls, fracture of the parietal bone, tear of tentorium cerebri, large amount of blood collection stayed in the cranium and found other organs healthy intact. The said Doctor, P.W. 10 opined that the death of the deceased was due to injury of the vital organ (Brain), which is ante-mortem in nature. During his cross examination, the said P.W. 10 stated that the injury of the deceased may be caused due to falling on hard substance." 24. PW 11, Tinku Moni Bordoloi, Investigating Officer of the case, in his evidence deposed that on 16.12.2008 around 09.45 in the morning on the basis of an information that one Krishna Murmu expired at Uluguchi Tea Garden due to assault on him by one Simon Paharia a resident of Village Aguruguchi. Accordingly GD Entry No. 297 date3d 16.12.2008 was entered and then he went to the place of occurrence and on reaching the same, he witnessed the dead body, conducted inquest on it, sent the dead body to Morigaon Civil Hospital for Post Mortem Examination and recorded the statement of the witnesses. The wife of the accused gave statement before him and as he was transferred from Nelli Out Post before completion of the investigation, he submitted the Diary in the concerned Police Station. The wife of the accused gave statement before him and as he was transferred from Nelli Out Post before completion of the investigation, he submitted the Diary in the concerned Police Station. In his cross examination, he denied the suggestion that he did not investigate the case properly, he stated that P.W. 3 Sumi Panika did not state before him that Krishna vomited Blood. He also stated that the house of P.W.7, Ramoni Murmu, mother of the deceased is about 2 KMs. away from the place of occurrence and the said P.W.7 in her statement before him did not tell that Krishna told her that Simon Paharia assaulted him. 25. P.W. 12, Sri Mohendra Bora, in his evidence, deposed that he started the investigation at the later part and the previous I.O. already started the investigation and that he only collected the Post Mortem Report and filed the Charge-Sheet in the case under Section 302 IPC against the accused Simon Paharia. In his cross examination, he stated that he studied the papers and statement of the witnesses and filed the Charge-Sheet thereafter. 26. The accused, in his 313 Cr.P.C., statement denied all the allegations against him stating that he do not know how the deceased sustained the injury and also denied to adduce any evidence for his defence. 27. From the records and deposition of the prosecution witnesses various discrepancies have been seen. P.W. 10, the Autopsy Doctor in his evidence stated that the deceased died of injury on vital organ, Brain. But from the evidence of PWs 2 & 3 it is seen that the deceased complained about abdominal pain only. The P.W.7, mother of the deceased also stated that the deceased complained about abdominal pain, could not pass urine etc. and she took him to Nellie Civil Hospital where, two injections and saline was given to him and then she took him back to their house. Further, with regard to the arrival of the deceased Krishna at night in the house of P.W. 2, where P.W. 3 was also available, both the witnesses stated two different times of his arrival. P.W. 2 stated it is around 7 p.m. Krishna complained about abdominal pain in presence of Sumi, P.W.3; whereas P.W.3 stated that at night around 3 a.m. Krishna called upon them in the house of P.W.2, Binita. P.W. 2 stated it is around 7 p.m. Krishna complained about abdominal pain in presence of Sumi, P.W.3; whereas P.W.3 stated that at night around 3 a.m. Krishna called upon them in the house of P.W.2, Binita. P.W. 11, the first I.O. of the case clearly stated that P.W.7 did not state before him that deceased told her that accused Simon assaulted him. Further said P.W. in her cross examination stated that the deceased was able to talk when he reached her house at 6 a.m. Said P.W. 7 in her FIR dated 16.12.2008 specified that she from PWs. 2 & 3 Binita and Sumi cane to know that accused Simon slapped deceased Krishna due to which he fee down and the said accused then kicked Krishna and stepped over him causing injury on him due to which Krishna died. But from the Post Mortem Examination Report of the deceased and the from the evidence of the autopsy doctor P.W.10 no such external or internal injury on the other part of the body of the deceased Krishna could be found. The P.W.5, wife of the accused stated that her husband slapped Krishna as she cried when Krishna pushed her blouse when she was sleeping. 28. The prosecution tried to prove the guilt of the accused from circumstantial evidence in absence of any eye witness in the case. But, from the above, we have seen that that from the evidence adduced by the prosecution, it failed to lead a cogent and reliable evidence with regard to the guilt of the accused Simon Paharia which could prove the complete chain of evidence and the circumstances beyond all reasonable doubt, that it is the accused appellant Siman Paharia, on whose assault, Krishna Murmu died subsequently. 29. In view of the aforesaid discussion, we are of the considered view that the accused appellant should be given the benefit of doubt. 29. In view of the aforesaid discussion, we are of the considered view that the accused appellant should be given the benefit of doubt. As such the impugned judgment of conviction and sentence dated 30.09.2011 passed by learned Sessions Judge, Morigaon in Sessions Case No. 75/2009 arising out of GR Case No. 1436/2008 in Jagiroad Police Station Case No. 239/2008 under Section302 of the Indian Penal Code (IPC, in short) with regard to the accused appellant Simon Paharia is hereby set aside and quashed and he is acquitted from the charge leveled against him in the aforesaid case and is directed to be released forthwith if not required in any other case. 30. Registry shall inform the Superintendent of District Jail, Morigaon to release the accused appellant forthwith in the above noted case with a copy of the Judgment. 31. The Government of Assam is directed to deposit an amount of Rs. 1,00,000/- with the Sessions Judge, Morigaon within 3(three) months from the dale of receipt of the copy of this Judgment, towards compensation under Section 357-A of the Cr.P.C. payable to the mother of the deceased, namely, Smti. Ramani Mura, wife of Late Chandra Mura. On receipt of the said amount, learned Sessions Judge, Morigaon shall disburse the said amount to Smti. Ramani Mura, mother of the decease Krishna Murmu, on her proper identification and on obtaining necessary receipt from her. 32. We appreciate the valuable assistance rendered by both Mr. Debasis Nandi learned Amicus Curiae, appearing on behalf of the accused appellant and Mr. Dhanesh Das, learned Additional Public Prosecutor, Assam representing the State. The learned Amicus Curiae Mr. Debasish Nandi is entitled to Rs. 7,000/- towards his hearing fees. 33. Hence this appeal stands allowed. Registry shall send down the records along with a copy of the Judgment. Appeal Allowed.