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2015 DIGILAW 547 (GAU)

Biswajit Dey S/o Sri Tapan Dey v. State of Assam

2015-05-11

RUMI KUMARI PHUKAN

body2015
JUDGMENT AND ORDER : Rumi Kumari Phukan, J. This appeal is directed against the judgment and order dated 07.04.2014 passed by the learned Sessions Judge, Bongaigaon in Sessions Case No.17(BGN)/2012 convicting the accused/appellant (hereinafter referred to as accused person) for the offence u/s 304 Part-II IPC and sentenced him to undergo rigorous imprisonment for 07(seven) years and also to pay a fine of Rs. 3000/- (Rupees three thousand) and in default of payment of fine, further rigorous imprisonment for 06(six) months. 2. Being aggrieved and dissatisfied with the judgment aforesaid, the accused/appellant preferred this appeal alleging several infirmities in the impugned judgment. Various grounds raised in the appeal is that the learned Court below erred in law as well as in fact while assessing the evidence on records, that although the learned trial Court has held that prosecution had not been able to establish any motive strong enough to kill the deceased and also the enmity between the deceased and the appellant being not proved, but the learned trial Court had come to the conclusion that the appellant is guilty for committing the offence u/s 304 Part-II IPC. That the learned Trial Court failed to appreciate the facts that had there been any intention of the appellant to kill the deceased, he definitely would not have kept the dead body lying open on the back side of his house. That there was no eye witness to the incident in question and the presence of the appellant in his house at the time of occurrence and also immediately before and after was not proved. 3. The brief fact of the prosecution case is that the informant Sri Sujit Ch. Dey lodged an ejahar before the Officer-in-Charge, Bongaigaon Police Station stating inter-alia that on 29.06.2008 at night, his brother Arup Dey went to the house of the accused Biswajit Dey to watch Television, but the accused Biswajit Dey with a view to kill his brother, implanted some electric wires on the wall of his room. As a result, when his brother went to watch T.V. by touching the electric wire, died following electrical shock. 4. On receipt of the ejahar, police registered a case and after completion of investigation, submitted charge sheet against the accused/appellant u/s 302 IPC. As a result, when his brother went to watch T.V. by touching the electric wire, died following electrical shock. 4. On receipt of the ejahar, police registered a case and after completion of investigation, submitted charge sheet against the accused/appellant u/s 302 IPC. The accused person faced the trial and after furnishing him necessary copy and after hearing both sides, charge u/s 302 IPC was framed and explained to the accused/appellant, to which he pleaded not guilty and claimed to be tried. 5. To substantiate the charge, prosecution examined as many as 11(eleven) witnesses and defence examined none. Plea of the defence is of total denial. On conclusion of the trial, the trial Court found the accused persons guilty u/s 304 Part-II IPC and convicted and sentenced the accused/appellant as mentioned above. 6. I have heard Mr. S.C. Biswas, learned counsel for the accused/appellant and Mr. K. Munir, learned Additional Public Prosecutor, Assam as well as considered the grounds of appeal. 7. In pursuance of the arguments so advanced by the learned counsels, I have also considered the entire evidence on record. The prosecution case relied upon only one circumstance that the deceased was found dead by electrocution at the back side of the house of the accused/appellant and it is a case no eye witness to prove the fact as to under what circumstances the deceased was died. After appreciation of the evidence on record, it is found that PW-1 (Sujit Ch. Dey) is the informant and PW-2 (Usha Rani Das), PW-3 (Kamal Ch. Dey), PW-4 (Pratima Ch. Chakladar), PW-5 (Gopal Guha), PW-6 (Karuna Mandal), Pw-7 (Gopal Dey) all are being resident of the locality has arrived at the house of the accused/appellant on being informed that Arup Dey (brother of the PW-1) was found lying dead at the back side of the house of the accused/appellant. All of them stated totally similar evidence that they found that the electrical wire was folded in the hand of the deceased and at that time the accused/appellant was not in his house. 8. In his evidence, the PW-1 has stated that there was huge electrical wire in the room of the accused/appellant and it was a rainy day. The same is also admitted by the other witnesses and it is in their evidence that the accused died of electrical shock. 8. In his evidence, the PW-1 has stated that there was huge electrical wire in the room of the accused/appellant and it was a rainy day. The same is also admitted by the other witnesses and it is in their evidence that the accused died of electrical shock. The evidence of PW-8 who conducted the inquest also reveals that the there was some electrical wire lying near the dead body. On the other hand, the Medical Officer who conducted the postmortem examination on the dead body of the deceased, found three burn injuries on the body of the deceased and has opined that cause of death is cardiac arrest following electric current shock which is ante mortem in nature and death is due to electrocution. 9. Admittedly in this case, there is absolutely no other evidence other than the factum of recovery of dead body from behind the house of the accused/appellant. There is absolutely no evidence to hold that it is a case of homicidal death to prove the charge u/s 302 IPC and the learned Court below has hold the accused guilty u/s 304 Part-II of IPC. 10. After careful observation of the impugned judgment and order, it has been found that the learned Court below has appreciated certain other facts that the plea of alibi is not proved by the defence, that the huge quantity of wire was recovered from the house of the accused and there is no explanation for having such electrical wire stored in his house, that deceased was wrapped with electrical wire connected from the house of the accused and the accused died of electrocution. But after due consideration of evidence, it is found that the plea of alibi was not taken by the defence, instead the witnesses themselves have admitted that the accused was working in the hotel at the relevant time and he used to reside in the said line hotel and he comes home after 1½ months casually. Equally there is dearth of evidence that the accused intentionally or negligently kept such electrical wire in his house so as to cause endanger resulting death of a person. Equally there is dearth of evidence that the accused intentionally or negligently kept such electrical wire in his house so as to cause endanger resulting death of a person. Further from the seizure list, it reveals that the Investigating Officer has simply recovered one wire 16 feet approx and one Plus from the place of occurrence and there is nothing to show that huge amount of electrical wire was stored in the house of the accused/appellant as has been averred in the FIR. So the finding of the learned trial Court is not supported by the matters on record. 11. It has also come into evidence that on the fateful day it was raining and there is possibility of electrical shock for touching such electrical loose wire on such rainy day. It is also an admitted position that the deceased went to the house of the accused/appellant in his absence and he might have tried to enter his house by some tactful manner which is evident that he had a plus in his hand and in the process he might be affected by the electrocution. It is not proved in this case by prosecution that the accused/appellant stored/kept the electrical wire in a negligent manner to cause death of the deceased. 12. To bring home an offence u/s 304 Part-II IPC, prosecution is obliged to prove that it is a case of culpable homicide not amounting to murder and Part-II of the Section will come into play when such culpable homicide is made with an intention to cause death. What is culpable homicide has been explained by Section 300 IPC, explanation-1 as below:- Culpable homicide is not murder if the offender whilst deprive of the power of self control by grave and sudden provocation, causes death of a person who gave the provocation or causes death of any other person by mistake or accident. Before an accused is held guilty and punished under first part or second part of section 304 a death must have been caused by the assailant under any of the circumstances mentioned in the five exceptions to section 300, which is not found in this case. 13. Obviously in this case, in the given facts and circumstances and inadequate evidence on record, the ingredient of the Section 304 Part-II IPC is not attracted and proved. 13. Obviously in this case, in the given facts and circumstances and inadequate evidence on record, the ingredient of the Section 304 Part-II IPC is not attracted and proved. The conclusion so arrived by the learned Court below is found to be on surmises and conjecture without any valid legal evidence. Holding of accused guilty only one circumstance that the dead body was found behind the house of the accused/appellant without having further evidence that there was deliberate intention of the accused to kill such a person while admittedly accused/appellant was not in his house since long. There is absolutely no evidence that accused/appellant connected electric line towards the boundary/wall of the house etc endangering human life and as such, even the offence u/s 304(A) IPC cannot be attributed to the accused/appellant. 14. In the result, the impugned judgment and order so passed in Sessions Case No. 17 (BGN)/2012 dated 07.04.2014 by the learned Court below is not maintainable and hence set aside. The accused/appellant be set at liberty forthwith. 15. Registry shall send down the LCR along with a copy of this judgment and order to the learned Court below.