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2015 DIGILAW 927 (GAU)

Arjun Gowala v. State of Assam

2015-07-29

INDIRA SHAH, P.K.SAIKIA

body2015
JUDGMENT : P.K.Saikia, J. 1. s appeal is directed against the judgment dated 21.06.2012 rendered by learned Sessions Judge, Golaghat in Session Case No. 20/2011 convicting one Arjun Gowalla of offence u/s 302 IPC and sentencing him to undergo imprisonment for life and also to pay fine of Rs. 5,000/- (Rupees Five Thousand), in default, RI for another 6 (six) months for offence aforesaid. 2. Being aggrieved by and dis-satisfied with the judgment aforesaid, the appellant, Sri Arjun Gowalla (hereinafter referred to as the ‘accused person’) preferred this appeal from jail citing some serious infirmities in the judgment under challenge. 3. We have heard Mr. R.M. Choudhury, learned Amicus Curiae appearing for the appellant and Ms. S. Jahan, learned Addl. P.P. appearing for the State. 4. The case, projected by prosecution in the FIR dated 13.12.2010 and in subsequent trial, in short, is that on 12.12.2010 at about 7 pm, the accused person without any rhyme and reason inflicted blows with a dao on the neck and chest of one Kitu Gowalla (since deceased) causing severe wounds on his person for which he was taken to hospital. However, while undergoing treatment at hospital, the victim succumbed to the injuries same day. 5. In that connection, an FIR was lodged with OC, Golaghat Police Station on 13.02.2010 by one Sri Daitari Gowalla, father of the deceased. On receipt of such FIR, OC, Golaghat Police Station registered a case vide Golaghat P.S. No. 605 of 2010 u/s 302 IPC and ordered one Sri Abdul Salem, SI of Police to investigate the case. 6. Being so ordered, Sri Salem visited the place of occurrence, conducted an inquest on the dead body, sent the same to hospital for post mortem examination, examined witnesses, did other things 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. The Magistrate before whom the charge sheet was so laid committed the case to the Court of Session since the offence u/s 302 IPC is exclusively triable by the Court of Session. 7. The Magistrate before whom the charge sheet was so laid 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 and on hearing the learned counsel for the parties, learned Sessions Judge, Golaghat 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. 8. During trial, the prosecution had examined as many as 9 (nine) witnesses including informant, Medical Officer (in short, ‘MO’), who conducted autopsy and the Investigating Officer (in short, ‘I/O’) of the case. The statement of the accused person u/s 313 CrPC was recorded. The plea of the accused was that of total denial. He, however, on being required, declined to adduce any evidence in his defence. 9. On conclusion of trial and on hearing the learned counsel for the parties, the court below was pleased to convict the accused person 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. 10. Mr. R.M. Choudhury, learned Amicus Curiae appearing for the appellant submits that the judgment in question cannot be sustained for reasons more than one. First, dying declarations which were heavily relied on by the prosecution cannot be believed since such dying declarations suffer from serious infirmities. In that context, it has been argued that the victim sustained enormously huge wound on very vital part of his body which extinguished his life little thereafter. In such a situation, one cannot expect the deceased to give any statement, much less, a statement in the nature of dying declaration. 11. According to learned Amicus Curiae for some other reasons too, dying declarations aforesaid cannot be acted upon at all. In that regard, it is submitted that though PW 5, Smti Popoya @ Kokoya Gowalla stated that the deceased before his death told her that he was assaulted and injured by the accused person, yet, such a very vital information was not disclosed before police during investigation which makes the evidence of PW 5 unreliable since such evidence suffers from the vice which is commonly called “contradiction”. 12. 12. The other witnesses before whom the deceased reportedly made dying declarations are PW 1 Sri Daitari Goala, PW 2, Narah Sona, PW 7, Rukdhan Tanti and PW 8, Smti. Dhaki Gowala. However, their evidence also cannot be relied on since they are closely related to the deceased and since one of them viz. PW 7 was declared hostile. This is more so, when such dying declarations are found to be shrouded with serious doubt and suspicion inasmuch as other persons, who seemed to have been there at the PO by the time deceased reportedly made statements in the nature of dying declarations to PWs aforesaid, were not examined and that too without assigning any reason whatsoever. 13. Secondly, the circumstantial evidence relied on by the prosecution hardly form a chain of events unbreakable anywhere leading to a lone and sole conclusion that the accused, and none else, was the author of the crime in question. In support of such contention, it is submitted that barring the dying declarations which cannot be believed for reason aforementioned, there is no evidence on record implicating the accused with the crime in question. 14. It has also been alleged that prosecution has placed huge reliance on the fact of seizure of dao on the strength of Seizure List, Ext. 2. However, such claim of the seizure cannot be accepted as truthful since all the seizure witnesses spoke differently regarding the place wherefrom the aforesaid dao was seized as well as the person from whom such article was seized. Therefore, the learned trial court could not have placed any reliance on the fact of seizure of weapon allegedly used in committing the crime in question. 15. Even one assumes for the sake of argument for a moment that police seized the weapon of offence, yet, prosecution has miserably failed to connect such dao with the crime in question to show that the aforesaid dao was used in assaulting the victim on the night in question. Since the connection of seized dao has not been established with the crime in question, mere seizure of dao, even if from the accused person gives no strength to the prosecution case. 16. It is also the case of learned Amicus Curiae that one witness on whom the prosecution placed heavy reliance was PW 3. Since the connection of seized dao has not been established with the crime in question, mere seizure of dao, even if from the accused person gives no strength to the prosecution case. 16. It is also the case of learned Amicus Curiae that one witness on whom the prosecution placed heavy reliance was PW 3. However, she turned hostile for which one of the pillars of the prosecution case got damaged beyond any repair which makes the entire prosecution case enormously doubtful. On this count also, learned Amicus Curiae urges this Court to acquit the accused of offence u/s 302 IPC on setting aside the judgment under challenge. 17. On the other hand, learned Addl. P.P., Ms. S. Jahan submits that the prosecution case is based not only on circumstantial evidence but also on dying declarations as well. According to her, all dying declarations relied on by the prosecution are found to be free from any infirmity whatsoever. Therefore, there cannot be any difficulty in concluding that dying declarations are truthful and such dying declarations are voluntary as well which can very well be relied on by the court, and that too, without any hesitation. 18. More importantly, such dying declarations find corroboration on material points from the testimony rendered by Doctor on one side and some other circumstances which emerge through the evidence of the prosecution witnesses on the other side. Therefore, such evidence can be relied on in ascertaining the allegation against the accused person...........................argues learned Addl. P.P. 19. It has also been contended that in his evidence, the IO (PW9) has stated that the accused had concealed himself soon after the incident and as such, the accused had to be apprehended with the help of villagers. The escaping of the accused soon after the alleged incident and his arrest by police with the help of villagers, in the facts and circumstances, lend more and more support to the prosecution case. She, therefore, urges this Court to dismiss this appeal affirming the judgment under challenge. 20. We have considered the rival submissions, having regard to the judgment under challenge and the evidence on record. But before we proceed further, we find it necessary to have a look at the evidence of Doctor who conducted autopsy on the body of the deceased at KK Civil Hospital on 13.12.2010. He was Dr. Pankaj Kr. 20. We have considered the rival submissions, having regard to the judgment under challenge and the evidence on record. But before we proceed further, we find it necessary to have a look at the evidence of Doctor who conducted autopsy on the body of the deceased at KK Civil Hospital on 13.12.2010. He was Dr. Pankaj Kr. Bhattacharjee and was examined as PW 6. According to him, on 13.12.2010, he examined the body of one Kitu Gowalla and found the following:- “A male dead body of sound built, with eyes closed. Rigor mortis present. Cut injury (10 m. X 2 cm x 3cm) from right upper cheek upto middle part of the neck in the right side. Lampry and fresher transmitted and blood clot found. Fracture of right and blood into inter conclusion of 2nd inter and neck near of right side severed. Right leg confume. Haematoma in right leg. Deep cut injury (10 cm x 2 cm x 3cm.) from right middle part of the neck extended downward upto right chest upper part severed, intercanal muscle of 2nd intersper. Trapa of right 2nd/3rd sides. Severed interestal muscle 2nd spu (right) place congested (right) hemothorax. All the above injuries are ante mortem in nature. Opinion: In my opinion, the cause of death is due to shock and haemorrhage sustained by the deceased. ” 21. The evidence of Doctor coupled with the post mortem report and inquest report (Ext. 7) reveals that the deceased died a homicidal death on sustaining 2 (two) huge deep cut injuries affecting the cheek, head, neck and chest. 22. So situated, let us see who occasioned the death of the victim on the night of 12.10.2010. We have already found that the case in hand is basically based on dying declarations and some circumstantial evidence as well. We have found that the deceased reportedly made statements in the nature of dying declarations to PW 1, PW 5, PW 7 and PW 8 which implicate the accused with the crime in question. These PWs are found saying that the deceased told them that the accused had planted dao blows inflicting injuries on his person. 23. On the perusal of the evidence of the Doctor it is found that the deceased sustained two huge cut blows, and that too, on some of his vital parts, same being cheek, head, neck and chest. These PWs are found saying that the deceased told them that the accused had planted dao blows inflicting injuries on his person. 23. On the perusal of the evidence of the Doctor it is found that the deceased sustained two huge cut blows, and that too, on some of his vital parts, same being cheek, head, neck and chest. We have also found that such injuries are enormously huge as is evident from the testimony of the Doctor. For ready reference, same is again reproduced below:- Cut injury (10 cm X 2 cm x 3cm) from right upper cheek upto middle part of the neck in the right side. Lampry and fresher transmitted and blood clot found. Fracture of right and blood into inter conclusion of 2nd inter and neck near of right side severed. Right leg confume. Haematoma in right leg. Deep cut injury (10 cm x 2 cm x 3cm.) from right middle part of the neck extended downward upto right chest upper part severed, intercanal muscle of 2nd intersper. Trapa of right 2nd/3rd sides. Severed interestal muscle 2nd spu (right) place congested (right) hemothorax. 24. We have considered such injuries in the light of commentaries on injuries found available in the Modis’ Medical Jurisprudence. When one considers the types of injuries which the victim sustained on the night in question and which occasioned his death same night, he would find that though it is not always impossible for a person sustaining injuries of the kind which the deceased sustained on the eventful night, yet, unless there is extremely reliable evidence to show that the victim was in a position to speak despite sustaining wounds of the aforesaid nature, it cannot be accepted without a good amount of doubt that the victim did make statements in the nature of dying declarations implicating the accused with the crime in question. 25. Unfortunately, the evidence of the nature as indicated above is not found forth coming in the case in hand. This is because of the fact that though PW 5 claims that she heard the deceased telling her that the accused inflicted dao blows on him on the night in question, yet, she admitted that she did not divulge such a vital information to the IO during the course of investigation which in turn make her evidence unreliable. 26. This is because of the fact that though PW 5 claims that she heard the deceased telling her that the accused inflicted dao blows on him on the night in question, yet, she admitted that she did not divulge such a vital information to the IO during the course of investigation which in turn make her evidence unreliable. 26. We have also found that other PWs, namely, PW 1, PW 7 and PW 8 claims that they heard the deceased making statements implicating the accused with the crime in question. However, their evidence on that count cannot be accepted without a large grain of salt since there is evidence on record to show that some other neutral persons had arrived at the PO by the time the victim reportedly made statements in the nature of dying declarations to those witnesses who are some way or other related to the victim. 27. Since there is evidence on record to show that some neutral persons must have heard the deceased making statements in the nature of dying declarations to the aforesaid PWs, those persons ought to have been examined as witnesses to give credibility to the prosecution case. However, those neutral persons were not examined as witnesses and that too without assigning any reason whatsoever and instead the prosecution places enormous reliance on the witnesses who are found to be related to the deceased. This again casts a serious doubt about the credibility of aforesaid dying declarations or for that matter on the entire prosecution case. 28. We have found that PW 7 was declared hostile meaning thereby that he is a witness who cannot be fully trusted. This, to a great extent, affects the credibility of PW 7. Similarly, PW 3, who was expected to support the prosecution case to a great extent, turned hostile. The PW 3 turning hostile coupled with the fact that PW 7 too turned hostile to the prosecution administers a lethal blow to the prosecution case. Being so, none of the dying declarations, in our considered opinion, can be relied on without any hesitation. 29. It is found that prosecution also places some reliance on the fact of alleged seizure of dao on being produced by the accused person. Being so, none of the dying declarations, in our considered opinion, can be relied on without any hesitation. 29. It is found that prosecution also places some reliance on the fact of alleged seizure of dao on being produced by the accused person. However, a scrutiny of the evidence tendered on this count reveals that evidence rendered on the point of seizure of dao is riddled with inconsistencies and contradictions and as such, no reliance can be placed on the alleged fact of seizure of dao on being produced by the accused person. 30. It is worth noting that the prosecution side tries to prop up its case from the fact that the accused went underground soon after the incident in question and was apprehended subsequently with the help of villagers. Though there is evidence on record to show that accused had absconded after the incident and was apprehended subsequently by the villagers, such facts alone cannot require the Court to conclude that the accused was the author of the crime in question. 31. Situation being such, on the materials on record, it cannot be safely concluded that the accused had inflicted fatal blows on the victim on the night in question which occasioned his death on the same night. 32. That being so, we are of the opinion that the learned Trial Court was not right in convicting the accused person of the offence he was charged with. Rather he ought to have been acquitted by the learned Trial Court giving him the benefit of doubt. 33. In the result, the appeal is allowed and the judgment under challenge is set aside and quashed. 34. The accused is, accordingly, acquitted of offence u/s 302 IPC and he is ordered to be released forthwith if he is not required in connection with any other case. 35. We deeply appreciate the valuable assistance rendered by Mr. R.M. Choudhury, learned Amicus Curiae in disposing the present appeal. We, therefore, direct the State Legal Service 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 a certified copy of this judgment. 36. Return the LCR.