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2015 DIGILAW 948 (GAU)

Silly Lakra v. State of Assam

2015-08-03

PRASANTA KUMAR SAIKIA, RUMI KUMARI PHUKAN

body2015
JUDGMENT : Prasanta Kumar Saikia, J. 1. This appeal is directed against the judgment dated 22.08.2012, passed by learned Sessions Judge, Udalguri in Session Case No. 5 (D-U)/2011 convicting one Silly Lakra of offence u/s. 302 IPC and sentencing him to imprisonment for life and to pay a fine of Rs. 1,00,000/- (Rupees One lakh), in default, to suffer S.I. for another 2 (two) years for the offence aforesaid. Being aggrieved by and dissatisfied with the judgment aforesaid, the appellant, Silly Lakra (hereinafter referred to as the accused person), preferred this appeal from jail citing several infirmities in the judgment under challenge. 2. We have heard Mr. S. Chauhan, learned counsel appearing for the appellant and Ms. S. Jahan, learned Addl. P.P. appearing for the State. 3. The facts projected by prosecution in the FIR dated 19.09.2011 and in subsequent trial, in short, are that on 19.11.2011 at about 8 pm, the accused person had inflicted axe blows on the head of his own son Sanjoy Lakra causing his instantaneous death. In that connection, an FIR was lodged by one Mohan Beg with OC, Mazbat Police Station same day. On receipt of such an FIR, O/C, Mazbat Police Station registered a case, vide Mazbat P.S. Case No. 16 of 2011 u/s. 302 IPC and ordered one Deepak Das, SI of Police to investigate the case. 4. Being so ordered, Sri Das visited the place of occurrence (in short PO), conducted inquest on the dead body, sent the same to hospital for post mortem examination, examined the witnesses, well acquainted with the facts and circumstances of the case. In the meantime, the accused surrendered before the police and therefore, he was taken into custody. Thereafter, IO 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. 5. The learned Magistrate, before whom 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. 5. The learned Magistrate, before whom 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, the learned Sessions Judge, Udalguri was pleased to frame 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. 6. During trial, the prosecution had examined as many as 10 (ten) witnesses including informant, Medical Officer (in short, 'MO'), who conducted autopsy on the dead body and the Investigating Officer (in short, 'I/O') of the case. The statement of the accused person u/s. 313 Cr.P.C. was also recorded. The accused plea was of total denial. The accused person also adduced the evidence of 2 (two) defence witnesses in support of his plea of innocence. 7. On hearing the arguments, advanced by the learned counsel for the parties, the learned Sessions Judge 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. S. Chauhan, learned counsel appearing for the appellant arduously submits that the judgment in question cannot be sustained since it was not rendered on the basis of materials on record nor was it rendered in accordance with the prescription of law. In that connection, it has been stated that most of the witnesses, including the witnesses on whom prosecution pinned enough hope turned hostile leaving the prosecution case in lurch. 9. It has further been contended that according to prosecution, the accused had killed his own son by planting blows with axe on his head causing his instantaneous death. Though the aforesaid weapon of offence, same being axe, was reportedly seized by the 10 during the course of investigation, such a vital item having huge bearing on the outcome of the case was not produced before the court and that too without assigning any reason which again casts a serious doubt about the authenticity of the prosecution case. 10. It has been stated that the Doctor did not give any definite finding in regard to the cause of death of the person concerned. 10. It has been stated that the Doctor did not give any definite finding in regard to the cause of death of the person concerned. Such inconclusive medical evidence comes down heavily on the prosecution case where charge of murder has been levelled against the accused person. Such infirmity coupled with inability of the prosecution to produce the weapon of offence before the court during trial makes the prosecution case more and more suspicious. 11. It is also the case of the learned counsel for the appellant that the learned Trial Court has placed huge reliance on the statement of witnesses rendered before the police during investigation in coming to the conclusion that prosecution has proved the charge against the accused person which is, however, not permissible under the law. 12. Being so, according to the learned counsel for the appellant, the prosecution cannot be said that it has proved the charge against the accused person beyond all reasonable doubt and as such, the accused is required to be acquitted of the offence he was charged with on setting aside the judgment under challenge. 13. On the other hand, Ms. S. Jahan, learned Addl. P.P., submits that though most of the witnesses examined from the side of the prosecution turned hostile, yet, their evidence cannot be discarded altogether since their evidence along with the evidence of witnesses who supported the prosecution case, make out the charge levelled against the accused person and therefore, the judgment in question cannot be set aside as prayed for by the appellant. 14. The learned Addl. P.P. further contends that testimonies of PW 4, Sukhdew and P W 7, Brijenia Lakra are very reliable and such evidence firmly implicate the accused person with the crime in question. Their evidence draws more and more support from other evidence, documentary and oral found on record. 15. The learned Addl. P.P. again contends that there is evidence on record to show that the accused had surrendered before the police after the incident in question. His surrendering before the police, in the facts and circumstances of the present case clearly supports the claim of prosecution that accused, and none else, was the author of the crime in question. 16. Being so, according to the learned Addl. P.P. the learned Trial Court has rightly convicted the accused person of offence u/s. 302 IPC and sentenced him to punishment as aforesaid. 16. Being so, according to the learned Addl. P.P. the learned Trial Court has rightly convicted the accused person of offence u/s. 302 IPC and sentenced him to punishment as aforesaid. The learned P.P., therefore, urges this Court to dismiss the appeal on affirming the judgment under challenge. 17. We have considered the rival submissions, having regard to the judgment under challenge and the evidence on record. 18. Before we proceed further, we find it necessary to have a look at the evidence of Doctor who conducted autopsy on the dead body. He was Dr. Anil Lalung and was examined as PW 9. According to him, on 20.09.2011, he was posted as SDM & HO at Udalguri Civil Hospital. On that day, he conducted post mortem examination on the body of one Sanjay Lakra and found the following:-- "1. Three cut wounds on the head (one in mid (1 1/2 x 1) 2. One at right side (2 x 1) 3. One at left side(1 x 1)" Bleeding heavily from all the wounds. Scalp bone underneath was fractured. Ext. 8 is my report. Ext. 8 (10 is my signature. The cause of death was due to haemorrhage and shock due to heavy bleeding and sharp weapon wound." 19. The Doctor opined that the death of the victim was homicidal in nature. The evidence on record also supports such an opinion. So situated, let us see if the accused can be connected with the death of his own son which occurred at his own house on 19.09.2011. To get an answer, we have very carefully gone through the evidence on record. 20. On the perusal of the evidence on record, it is found that PW 1, Mohan Beg, PW 2, Kailash Tanti, PW 3, Joypal Beg, PW 4, Sukhdev, PW 5, Binod Lakra and PW 6, Dharmendra Nayak did not support the prosecution claim that the accused was the person responsible for the death of the deceased, his own son, at his own house on the date aforementioned. It is worth noting here that all those witnesses except PW 1, PW 2 and PW 5 were declared hostile to the prosecution. 21. Equally importantly, the PW 1, PW 2 and P W 5 too could render no valuable support to the prosecution case. It is worth noting here that all those witnesses except PW 1, PW 2 and PW 5 were declared hostile to the prosecution. 21. Equally importantly, the PW 1, PW 2 and P W 5 too could render no valuable support to the prosecution case. Our forgoing discussion now reveals that the witnesses on whom the prosecution had placed enormous reliance did not support the prosecution case that the accused had killed his own son on the night of 19.09.2011. 22. It needs to be stated here that in his evidence, IO stated that the accused had surrendered before the police immediately after the incident in question. This claim was not seriously disputed by the accused person. However, such evidence alone, in the facts and circumstances of the present case, cannot establish that the accused had caused the death of his son and then surrendered before the police. 23. The defence has examined 2 (two) witnesses, namely, Eliage Ekka (DW 1) and Rajesh Tuti (DW 2). In their evidence, they have stated that the deceased had been suffering from epilepsy and he had the history of falling quite often injuring himself severely. Such evidence of D.W. s has been used to contend that the deceased died due to reason aforementioned. In our opinion, the facts and circumstances, such evidence fortifies more and more the plea of the innocence of the accused/appellant. 24. Though the materials on record reveals that the death of the victim was homicidal in nature, yet, as stated above, the prosecution miserably fails to show that such death was caused by the appellant herein. That being the position, we are of the opinion that it needs to be held that prosecution could not prove the charge levelled against the accused person beyond all reasonable doubt as required under the law and as such, the judgment, under challenge, becomes unsustainable in law. 25. Consequently, the appeal is allowed and the judgment in question is quashed and set aside. 26. Accordingly, the accused person stands acquitted of the offence he was charged with. He is ordered to be released forthwith, if he is not required in connection with any other case. Return the LCR.