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2015 DIGILAW 469 (GAU)

Sisu Ram Das v. State of Assam

2015-04-22

P.K.SAIKIA, RUMI KUMARI PHUKAN

body2015
JUDGMENT AND ORDER : P.K. Saikia, J. This appeal is directed against the judgment dated 30.09.2011, passed by learned Sessions Judge, Morigaon in Session Case No. 12 of 2010 convicting appellant Sri Sisu Ram Das (hereinafter referred to as accused person) of offence u/s 302 IPC and sentencing him to imprisonment for life and to pay fine of Rs. 3,000/- (Rupees Three Thousand), in default, to suffer R.I. for another 6 (six) months for the offence aforesaid. 2. Being aggrieved by and dis-satisfied with the judgment aforesaid, the appellant/accused person preferred this appeal from jail alleging several infirmities in the judgment under challenge. 3. We have heard Mr. I.H. Saikia, learned Amicus Curiae appearing for the appellant and Mr. K. Mazumdar, learned Addl. P.P. appearing for the State. 4. The case, projected by prosecution in the FIR dated 11.11.2009 and in subsequent trial, in short, is that on 11.11.2009, one Smti Thaumai Das lodged an FIR with O/C, Morigaon Police Station alleging that on 10.11.2009 at night the accused person called her husband Ron Das to go with him and accordingly on 10.11.2009 in the evening, her husband went out of his house in company of the accused person. However, the husband of the informant did not return home that night. Next day in the morning, the dead body of her husband was found hanging from a tree near Satanguri charialia. 5. On the basis of such an FIR, a case was registered vide Morigaon P.S. Case No. 204/2009 u/s 302 IPC and one Tarun Kalita, SI of Police, was ordered to investigate the case. Being so ordered, Sri Kalita visited the place of occurrence, got an inquest done on the dead body by an Executive Magistrate, sent the same to hospital for post mortem examination and arrested the accused person during the course of investigation. 6. As the investigation progressed from stage to stage, the I/O examined the witnesses, well acquainted with the facts and circumstances of the case, collected the post mortem examination report, did other needful and on conclusion of investigation, he submitted charge-sheet u/s 302 IPC against the accused person and forwarded him to the court to face trial. 7. It may be stated that on 11.11.2009, one Putul Das also verbally reported Officer-In-Charge, Morigaon P.S. about the husband of the informant lying dead at the place aforesaid. 7. It may be stated that on 11.11.2009, one Putul Das also verbally reported Officer-In-Charge, Morigaon P.S. about the husband of the informant lying dead at the place aforesaid. On the basis of such information too, Officer-In-Charge, Morigaon P.S. made a GD Entry vide GD Entry No. 2955 dated 11.11.2009 and directed Sri Kalita, SI of Police to do the needful. 8. As stated above, on the conclusion of investigation, the I/O has submitted charge sheet against the accused person under the aforesaid provision of law before the jurisdictional Magistrate who, in turn, committed the case to the Court of Session 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, Morigaon transferred the case to the file of learned Addl. Sessions Judge, Morigaon for disposal in accordance with law. 9. On receipt of the case on transfer and on hearing the learned counsel for the parties, learned Addl. Sessions Judge Morigaon framed charge u/s 302 IPC against the accused person and the charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. 10. During the course of trial, the prosecution had examined as many as 8 (eight) witnesses including informant, Medical Officer, who conducted autopsy on the dead body (in short, M/O) and the Investigating Officer, (in short, I/O) of the case. The statement of the accused person was recorded u/s 313 CrPC. The plea of the accused was of total denial. In his statement, recorded u/s 313 CrPC, the accused denied to have committed the offence alleged. He, however, on being required, declined to adduce any evidence in his defence. 11. On conclusion of trial and on hearing the learned counsel for the parties, the court below was pleased to convict the accused of offence u/s 302 IPC and sentenced him to punishment as aforesaid. The said judgment has been questioned in this appeal alleging that it was not rendered in accordance with the prescription of law nor was it rendered on the basis of materials on record. 12. Mr. I.H. Saikia, learned Amicus Curiae appearing for the appellant submits that the judgment in question cannot be allowed to stand. The said judgment has been questioned in this appeal alleging that it was not rendered in accordance with the prescription of law nor was it rendered on the basis of materials on record. 12. Mr. I.H. Saikia, learned Amicus Curiae appearing for the appellant submits that the judgment in question cannot be allowed to stand. In that connection, it has contended that the case in hand is based on circumstantial evidence but circumstances, established/ proved, hardly connect the accused with the crime in question, much less such circumstances establishing the guilt of the accused person beyond all reasonable doubt as required under the law. 13. In support of such contention, it has been submitted by Mr. Saikia, learned Amicus Curiae that prosecution has placed enormous reliance on the last scene theory to connect the accused with the crime in question. However, the evidence on record shows that the accused was last seen with the deceased on the fateful day at about 8 pm in the house of PW 1, Sri Kula Das. On the other hand, his dead body was found on the next day in the morning at about 6 am. 14. According to the learned Amicus Curiae, the gap between the time when the accused was seen in the company of the deceased and the time when his dead body was found next day in the morning was too big for last scene theory to operate against the accused person requiring this Court to conclude conclusively that the accused, and none else, was the author of the crime in question. 15. In support of such contention, Mr. I.H. Saikia, learned Amicus Curiae, has drawn our attention to the decision of the Apex Court reported in (2005) 3 SCC 114 in the case of State of U.P. v. Satish. The relevant para is reproduced below :- "22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." 16. The learned Amicus Curiae for the appellant further submits that prosecution could not prove the motive of the accused in committing the crime aforesaid. The inability of the prosecution to prove the motive of the accused in committing the crime under consideration is fatal, more so, in a case based on circumstances. The fact that the accused and the deceased are close relatives and the fact that they had maintained cordial relationship at all the time, make such a conclusion inevitable. 17. It has also been contended that the 'gamosa' which was used in committing the crime in question was seized but same was not sent to forensic expert to establish its connection with the accused person. Nor was it established that the accused was the owner of such 'gamosa'. According to the learned Amicus Curiae, in the facts and circumstances of the present case, the prosecution was duty bound to prove that the accused was owner of the aforesaid 'gamosa.' 18. Since the ownership of such 'gamosa' which was seized by police during the course of investigation of the case aforementioned was not established, it becomes one more testimonies of prosecution case not being proved beyond all reasonable doubts as required under the law and on all those counts, the Amicus Curiae requests this Court to acquit the accused person on setting aside the judgment under challenge. 19. On the other hand, the learned Addl. P.P., K. Mazumdar submits that the submissions, advanced from the side of the appellant/accused person are not based on facts. Rather it is premised on fiction and conjectures. 19. On the other hand, the learned Addl. P.P., K. Mazumdar submits that the submissions, advanced from the side of the appellant/accused person are not based on facts. Rather it is premised on fiction and conjectures. In that regard, it has been stated that there is convincing evidence in the form of testimonies of PW 1, Sri Kula Das, PW 4, Guda Ram Das and PW 5, Sri Keshab Das to show that on the fateful night at about 8 pm, the accused was in the company of the deceased. 20. The learned Addl. P.P. further submits that the accused left the house of PW 1, Kula Das where they reportedly took alcohol. The accused and the deceased left the house of PW 1 together on that night at about 8 pm. Such evidence of extremely incriminating nature only shows that it was the accused, and none else, who had caused the death of the deceased on the night aforementioned. 21. The learned Addl. P.P. again submits that the wife of the accused Smti Thaumai Das also deposes that on the fateful night, the accused came to her house and took her husband to somewhere only to be found dead next day in the morning. Such evidence too provides more and more credence to the prosecution case that it was the accused, and none else, who caused the death of the deceased. 22. It is also the case of the prosecution that there is evidence on record of Dr. S.B. Bora to show that the death of the deceased was homicidal in nature and deceased met his death due to asphyxia which was occasioned by strangulation. When one reads the evidence of witnesses together with the evidence of the Doctor, he would find that the accused was the person responsible for killing the deceased on the night of 10.11.2009. 23. Referring to the statements of the accused person recorded u/s 313 CrPC, it has been submitted that all the incriminating circumstances were brought to the notice of the accused person giving him an opportunity to explain the incriminating circumstances which stared direct at him. Unfortunately, instead of explaining those incriminating circumstances, the accused doles out a plea that he is innocent. 24. Unfortunately, instead of explaining those incriminating circumstances, the accused doles out a plea that he is innocent. 24. Non-explanation of incriminating circumstances, which prosecution has proved beyond all reasonable doubt, comes down heavily on the plea of innocence of the accused person since it has been held again and again that failure of the accused person to offer explanation to the incriminating circumstances, which have emerged from the evidence, recorded during trial, is fatal since such a failure provides the prosecution a missing link in its case and this is what exactly happened in the present case. Therefore, the learned Addl. P.P. submits this Court to dismiss the present appeal on affirming the judgment under challenge. 25. We have considered the rival submissions, having regard to the judgment under challenge and the evidence on record. However, before we could proceed further, we find it necessary to have a look at the evidence of the Doctor who conducted autopsy on the dead body of the victim on 11.11.2009 at Morigaon Civil Hospital. He is Dr. S.B. Bora and was examined as PW 8. His evidence is as follows : "External appearance :- Average built, rigor-mortis present, eye half opened, mouth half opened. 2. Multiple abrasion around the neck. 3. Minor abrasion in the backside of the body. 4. Ligature mark around the neck ; more prominent at the left side. Ligature mark encircled to the neck. No prominent mark. 5. Other organs are healthy. 6. There is no evidence of fracture, deformity, dislocation of bones. 7. Scalp, vertebrae – healthy. 8. Abdomen – healthy. 9. Intestine – healthy. Opinion :- In his opinion, the cause of death is due to asphyxia due to strangulation." 26. From the evidence of PW 8, it is found that the cause of death of the deceased was asphyxia due to strangulation. Such finding finds support from the post mortem report (Ext. 3) as well as the inquest report (Ext. 5). Being so, there cannot be any doubt that the deceased died a homicidal death on or about 10/11 November, 2009. 27. We have already found that the most important prosecution witnesses in the case in hand are PW 1, PW 4 and PW 5. We have also found that the learned Trial Court has properly reproduced the evidence of those witnesses. 27. We have already found that the most important prosecution witnesses in the case in hand are PW 1, PW 4 and PW 5. We have also found that the learned Trial Court has properly reproduced the evidence of those witnesses. We also find it necessary to re-reproduce the evidence of those witnesses from the judgment under challenge. For ready reference, their testimonies are reproduced as follows - "In his evidence, PW 1, states that the accused Sishuram Das, Rong Das, Tamkeswar Das and Tikira Das on the fateful day of the incident, took liquor at his house. After getting drunk both accused and Rong Das left the house of PW 1. On the next day, the dead body of Rong Das wrapped with a 'gamosa' around his neck was found near Chantanguri Chok. PW 1 stated before the Magistrate that accused Sishuram Das, Rong Das along with others came to his shop to consume wine and thereafter accused and Rong Das left his shop (PW 1) together. In his cross-examination PW 1 states that he does not know who wrapped a gamosa around the neck of the deceased but it is a fact that accused and the deceased left his house together and the same fact is stated before the Magistrate." "PW 4, Guda Das deposes that when he was consuming alcohol at the house of PW 1, he saw accused Shisuram Das, Rong Das and Keshab Das (PW 5) also consuming liquor and on the next day, the dead body of the deceased was found." "In his evidence PW 5, Keshab Das states that he saw the accused person and deceased Rong Das taking liquor together in the house of Kula Das (PW 1) and thereafter leaving the house of PW 1. He also deposes that the death of the victim occurred on the next day owing to asphyxia." 28. We have also found that another witness on whose evidence prosecution has placed reliance is PW 2 who happens to be the wife of the deceased. He also deposes that the death of the victim occurred on the next day owing to asphyxia." 28. We have also found that another witness on whose evidence prosecution has placed reliance is PW 2 who happens to be the wife of the deceased. For ready reference, her evidence is re-reproduced from the judgment aforesaid : "PW 2, Smti Thaumai Das has elaborately deposes that the accused Sishuram Das took her husband outside from her evidence and thereafter, dead body of her husband was found near the Charanguri Chok and from the evidence of PW 1, PW 4 and PW 5, it is found that they saw deceased Rong Das with Sishuram Das at the house of PW 1, Kula Das and PW 1 also saw them leaving his shop together after consuming alcohol. So, I have found that there is full corroboration of the evidence of PWs discussed above. They have created a circumstances - the last scene theory from the view point of wife, PW 2 and also from the view point of PW 1, they saw them leaving the shop of PW 1. 29. The other witnesses, examined from the side of the prosecution, are PW 3 and PW 6. Their testimonies are also re-reproduced from the judgment under challenge in the following manner :- PW 3, Ajamil Das also states that the deceased was his brother-in-law and he found the dead body of his brother-in-law on the following day of the incident. He also saw that one gamosa was wrapped around the neck of the deceased which was seized by police. PW 3 further deposes that the deceased died due to asphyxia. In his evidence, PW 6, Tulsi Das deposes that he was a witness to the seizure of gamosa which was wrapped around the neck of the deceased. He further states that wrapping of gamosa around the neck proves that the deceased died due to asphyxia and as such, the theory of asphyxia is proved and it was done by such gamosa, Ext. 4 and one Sri Tarun Das entered the matter in the GD vide GDE No. 2955 dated 11.11.2009. When the matter was orally informed by Sri Putul brother of the deceased to him, he entered the same in GD vide and in that connection, he prepared an inquest report, Ext. 5 and Ext. 5 (1) his signature. Ext. 4 and one Sri Tarun Das entered the matter in the GD vide GDE No. 2955 dated 11.11.2009. When the matter was orally informed by Sri Putul brother of the deceased to him, he entered the same in GD vide and in that connection, he prepared an inquest report, Ext. 5 and Ext. 5 (1) his signature. Ext. 6 if the FIR and Ext. 6 (1) is the signature of Officer-in-Charge. Ext. 4 is the seizure list of gamosa, Ext. 4(1) is his signature and Ext. 7 is the post-mortem report. 30. A careful perusal of the evidence of those PWs reveals that though those PWs, more particularly, PW 1, PW 3, PW 4 and PW 5 were subjected to cross-examination, yet, such cross-examination reveals nothing to come to a conclusion that the evidence of those witnesses cannot be relied on for any reason whatsoever. 31. A careful perusal of the evidence of PW 2 reveals that on the night in question, the accused came to the house of the deceased and the deceased left his house along with the accused person. The evidence of PW 1, PW 3, PW 4 and PW 5 also reveals that the accused, the deceased as well as PW 3 and PW 4 took alcohol in the house of PW 1 on the night in question. Their evidence further reveals that the accused and the deceased left the house of PW 1 around 8 pm on the all eventful night. 32. Such evidence rendered by PWs finds full support from the statements of PW 1, PW4 and PW5 which they made to the Magistrate during the course of investigation and which were proved as Ext. 1, Ext. 2 and Ext. 3 respectively. It may be stated that statements, made in Ext. 1, Ext. 2 and Ext. 3 are found to be totally in the line of evidence rendered by those PWs during trial. In their statements before the Magistrate, PW 1, PW 4 and PW 5 stated that the accused instigated the victim to take as much alcohol as possible. It is also found evident from the statements rendered in Ext. 1, Ext. 2 and Ext. 3 that a fully drunk deceased was compelled to come out of the house of Sri Kula Das (PW 1) by the accused person, much to the chagrin and annoyance. 33. It is also found evident from the statements rendered in Ext. 1, Ext. 2 and Ext. 3 that a fully drunk deceased was compelled to come out of the house of Sri Kula Das (PW 1) by the accused person, much to the chagrin and annoyance. 33. The evidence of those PWs again reveals that on the night aforesaid, the deceased did not return home. However, his dead body was found hanging from a tree near Satanguri Charialia on the next day in the morning at about 6 am. There is absolutely no evidence on record to show that any person other than the accused person had any occasion or opportunity to meet the deceased after he left the house of PW 1 in company of the accused person. 34. When all those circumstances are considered together, such circumstances, in our opinion, clearly shows that the accused was the person who was directly responsible for killing the husband of PW 2 on the night in question. That being so, the claim of the accused person that he is no way connected with the crime aforementioned is found to be without any substance. 35. We have found that all the incriminating circumstances, which starred direct at the accused person, were brought to the notice of the accused person while he being examined u/s 313 CrPC and same was done to enable the accused person to explain those incriminating circumstances. Unfortunately, the accused refused to explain those well established circumstances of enormously incriminating nature. 36. Instead, he tried to dole out a plea that he is innocent. The failure of the accused to explain those seriously incriminating circumstances, in facts and circumstances of the present case, in our opinion, provide a missing link in the prosecution case which, in turn, gives more and more credence to the prosecution case that it was the accused, and none else, who had killed the deceased on the night in question. 37. We have found that in the present case, the prosecution could not prove the motive of the accused in liquidating the life of the deceased. But then, in view of proved facts aforementioned, non-proving of motive, in our opinion, cannot overthrow the otherwise proved and established prosecution case. 38. 37. We have found that in the present case, the prosecution could not prove the motive of the accused in liquidating the life of the deceased. But then, in view of proved facts aforementioned, non-proving of motive, in our opinion, cannot overthrow the otherwise proved and established prosecution case. 38. It may be stated that the accused claims that the time-gap between the accused being seen in the company of the deceased and the discovery of his dead body was too big and as such, last seen theory cannot operate in the case in hand against the accused person. 39. However, such a plea is found to be without any substance since in the facts and circumstances of the present case, the gap aforementioned cannot be said to be too big for non-application of last seen theory, more so, when there is nothing on record to show that any person other than the accused had any opportunity or occasion to meet the deceased during the time-gap aforementioned. 40. In the result, this appeal is found devoid of merit and the same is accordingly dismissed. 41. Return the LCR. 42. We deeply appreciate the valuable assistance rendered by Mr. I.H. Saikia, learned Amicus Curiae in disposing the present appeal. We order the State Legal Service Authority to pay Rs. 7000/- (Rupees Seven Thousand) as being his professional fees within a period of 3 (three) months from today.