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2015 DIGILAW 202 (GAU)

Kailash Orang v. State of Assam

2015-02-19

M.R.PATHAK, PRASANTA KUMAR SAIKIA

body2015
JUDGMENT Prasanta Kumar Saikia, J. 1. This appeal is directed against the judgment and order dated 22.06.2011 passed by the learned Addl. Sessions Judge, FTC No. 1, Tinsukia in Session Case No. 85 (T) of 2009 convicting the accused, namely, Sri Kailash Orang (herein after referred to as the accused person) of offence u/s. 302 IPC and sentencing him to suffer imprisonment for life and also to pay a fine of Rs. 1000/- i.d. R.I. for another 1 month for the offence aforesaid. Being aggrieved and dissatisfied with the aforesaid judgment the accused/appellant has preferred this appeal citing several infirmities in the judgment under challenge. 2. We have heard Mr. M.B.U. Ahmed, learned Amicus Curiae for the appellant and also heard Ms. S. Jahan, learned Addl. P.P., for the State. 3. The brief facts necessary for disposal of the present appeal are that on 13.02.2008, one Dr. Apurba Kr. Borthakur (PW 9) lodged an FIR with the O/C, Tinsukia PS. alleging that Bikash Orang aged about 2 years, who was the son of the accused Sri Kailash Orang, was brought to Tinsukia Civil Hospital on 13.02.2008 at about 8.45 a.m. It was stated in the FIR that said Bikash Orang was found sustaining huge cut wound on his head, which was said to be inflicted by his father Sri Kailash Orang. 4. On the basis of such FIR, O/C, Tinsukia Police registered a case vide Tinsukia P.S. Case No. 796 of 2008, u/s. 302 IPC and Sri Nanda Borah was entrusted with the investigation of the case. Sri Borah, I/O of the case, during the course of investigation visited the place of occurrence, held inquest on the dead body, sent the same to hospital for post mortem examination, examined the witnesses and did other needful and on conclusion of investigation, he submitted charge-sheet against the accused u/s. 302 and forwarded him to the court to stand his trial. 5. 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 Sessions. The learned Sessions Judge on the receipt of case on commitment transferred the same to the file of Addl. Session Judge FTC No. 1, Tinsukia for disposal in accordance with law. On receipt of the case on transfer, learned Addl. The learned Sessions Judge on the receipt of case on commitment transferred the same to the file of Addl. Session Judge FTC No. 1, Tinsukia for disposal in accordance with law. On receipt of the case on transfer, learned Addl. Session Judge FTC No. 1 and on hearing the parties, framed charge u/s. 302 IPC against the accused person and charge, so framed, on being read over explained to the accused person he pleaded not guilty and claimed to be tried. 6. During trial, prosecution has examined as many as 11 witnesses including the informant, I/O as well as the Doctor who conducted the postmortem examination on the dead body. The Statement of the accused person u/s. 313 Cr. P.C. was also recorded. Accused plea was of total denial. He, however, pleaded that he was not in his house on the day on incident since on that day he went to Tinsukia in search of work. The accused, however, did not adduce any evidence on being so required. 7. On conclusion of trial and on hearing the arguments, advanced, by the learned counsel for the parties, the learned court below was pleased to convict the accused of offence u/s. 302 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in the present appeal. 8. Mr. Ahmed, learned Amicus Curiae submits that in the present case, there was no eye witness. The entire case is based on circumstantial evidence. In that connection, it has been stated that in a case which based on circumstantial evidence, prosecution is duty bound to establish a chain of events unbreakable nowhere which leads to the sole and lone conclusion that it was the accused and none else who committed in question. Unless the prosecution is found successful in establishing a chain of events as aforesaid, the prosecution cannot be said to have proved its case as required under the law. 9. However, in the case in hand, the prosecution fails to prove the case as required under the law. In respect of such contention, learned Amicus Curiae has drawn our attention to the evidence of witnesses, more particularly, the evidence of P.W. 1, P.W. 2, PW 3, P.W. 4, P.W. 6 P.W. 7 and P.W. 8 to contend that none of those witnesses supports the prosecution case in any manner whatsoever. 10. In respect of such contention, learned Amicus Curiae has drawn our attention to the evidence of witnesses, more particularly, the evidence of P.W. 1, P.W. 2, PW 3, P.W. 4, P.W. 6 P.W. 7 and P.W. 8 to contend that none of those witnesses supports the prosecution case in any manner whatsoever. 10. Further case of the defence was that one of the important circumstances, utilized by the prosecution to connect the accused with the crime in question was the seizure of weapon (dao) allegedly used in committing the crime in question. According to the learned Amicus Curiae, the prosecution must show that the weapon, seized, was the weapon used in committing crime under scrutiny and same was used by the accused and none else. Unfortunately prosecution miserably fails to do so. In view of above, learned Amicus Curiae submits this court to acquit the accused of offence u/s. 302 IPC on setting aside the judgment under challenge. 11. On the other hand, learned Addl. P.P., submits that the evidence of Doctor who conducted the Autopsy clearly reveals that death of the child was homicidal in nature. The evidence on record further shows that such incident occurred in the house of accused and none else. Such revelation coupled with the fact that on the fateful morning the accused was in his house and he got involved in a quarrel with his mother in law, armed with dao unmistakably establish that it was the accused and none else who extinguish the life of his son in his own house, and that too, in a very brutal manner. Being so, trial court has rightly convicted the accused of offence u/s. 302 IPC. She therefore, submits this court to dismiss this appeal on affirming the judgment of the trial court. 12. We have considered the rival submitted having regard to the evidence on record as well as the judgment under challenge. 13. Before we proceed further, we find it necessary to have a look at the evidence of Doctor, namely Dr. Apurba Kr. Borthakur (P.W. 9) who conducted the autopsy on the body of the deceased at Tinsukia Civil Hospital on 13.08.2008. For ready reference is evidence is reproduced below:- "External appearance:-Male dead body 2 1/2" in length, dark completion, wearing read colour sweater, red shirt, eyes and mouth closed of average built. Body was wrapped with black brown showal. Rigor-mortis complete. Borthakur (P.W. 9) who conducted the autopsy on the body of the deceased at Tinsukia Civil Hospital on 13.08.2008. For ready reference is evidence is reproduced below:- "External appearance:-Male dead body 2 1/2" in length, dark completion, wearing read colour sweater, red shirt, eyes and mouth closed of average built. Body was wrapped with black brown showal. Rigor-mortis complete. Injuries:-15 c.m. long bone deep cut of left parietal region of scalp. Blood and blood clot present. On examination of Scalp there was 2 long black scalp hair. It is bone deep cut and sharp cut sizes 10 x .5 x .5 c.m. 3 c.m. length sharp cut injury through left parietal region. On examination of Brain and spinal court Membrane is ruptured on left parietal area. Cut injury thorough left parietal lob of brain. Bold and blood clot present. Ventricles are filled with bold. Other bones are healthy. In my opinion death was due to coma as a result of intracranial haemorrhage due to ante mortem sharp cut injury homicidal in nature. Time since death is approximately 24-36 hours. Ext. 3 is the post mortem report and Ext. 3(1) is my signature. Ext. 4 is the command certificate and 4(1) is my signature. Ext. 5 is the forwarding and 5(1) is my signature. Ext. 6 is die inquest report and 6(1) is my signature. Ext. 7 is the dead body challan and 7(1) is my signature." 14. The evidence of Doctor unambiguously shows that the deceased died a homicidal death on or about 13.12.2008 and he met his death sustain huge cut wound on his head. Now the question we have to answer is who the assailant of the person aforesaid is. 15. So situated, we find it necessary to have a look at the evidence of other PWs and the evidence of PW 2 is taken up first for consideration. PW 2, Smt. Nuri Orang, aged about 10 years, is the sister of the deceased. According to her, on the fateful day, her father was at home and had a quarrel with her aunt. Owing to such quarrel, he got angry and started chasing her aunt with a dao in his hand. At some point of time, he attempted to plant a dao blow on her aunt. 16. However, the blow missed the target and landed on the head of her young brother. Owing to such quarrel, he got angry and started chasing her aunt with a dao in his hand. At some point of time, he attempted to plant a dao blow on her aunt. 16. However, the blow missed the target and landed on the head of her young brother. However, in her cross examination, she admitted that she did not witness the incident under consideration. Such evidence rendered in her cross examination clearly shows that she was not a witness to the incident in question and being so, in our opinion, her evidence cannot be relied on, more so, since it is a settled law that evidence of child witness needs to be considered with enormous caution and care. 17. We have found that the prosecution had also relied on the evidence of PW 1, Smt. Sunita Orang, (mother of the deceased), PW 4 Smt. Juli Orang, (sister of the deceased), PW 6, Smt. Muni Gogoi, P.W. 7, Rangta Orang and P.W. 8, Ghana Gogoi. On perusal of their evidence, it is found that they were reported witnesses and did not have any direct knowledge as to how the deceased met his death on the fateful morning. 18. The I/O, PW 11, Sri Nanda Bora who deposes that during the course of investigation a dao, reportedly used in committing the crime in question was seized by him on being produced by P.W. 3. However, such evidence alone could not establish that the dao, aforesaid, was used in committing the crime reportedly committed by the accused person. 19. It may be stated that PW 5 Dr. Apurba Kr. Borthakur is also found to be a reported witness since he had no knowledge as to how the incident in question occurred. Situation being such, we are constrained to hold that prosecution could not make out the allegation against the accused and as such, in our view, the learned trial court could not have convicted the accused person of offence u/s. 302IPC, instead it ought to have acquitted him on benefit of doubt. 20. Resultantly, we have no other option but to allow this appeal quashing the judgment under challenge which we accordingly do. 21. Consequently, the accused is acquitted of offence u/s. 302 IPC and we set him at liberty forthwith and is ordered to be released if he is not required in any other case. 22. Return the LCR forthwith. 20. Resultantly, we have no other option but to allow this appeal quashing the judgment under challenge which we accordingly do. 21. Consequently, the accused is acquitted of offence u/s. 302 IPC and we set him at liberty forthwith and is ordered to be released if he is not required in any other case. 22. Return the LCR forthwith. We deeply appreciate the assistance rendered by Mr. M.B.U. Ahmed, learned Amicus Curiae. We, therefore, direct the State to pay him an amount of Rs. 7,000/- as being his professional fee. Same needs to be paid within a period of 3 months from the date of receipt of a certified copy of this judgment. Appeal Allowed.