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2016 DIGILAW 599 (GAU)

Suraj Seria v. State of Assam

2016-07-11

AJIT SINGH, SUMAN SHYAM

body2016
ORDER : Ajit Singh, C.J. Appellant Suraj Seria has been convicted under Section 302 of Indian Penal Code and sentenced to imprisonment for life and fine of Rs.3000/- with default stipulation for committing the murder of Lakhiram Rajput. 2. Lakhiram Pather was an employee in Duamara Tea Estate. On the morning of 13.3.2009, his body was found in a 5 feet Nalla by Sectional Chowkidars, Anil Lasmon and Ramdas Ramchandra. Both of them, immediately, gave this information to Karam Singh Tanti (PW 2), who, in turn, lodged the ejahar (Exhibit 2) at Police Station Pangree, District Tinsukia. 3. Md. Rahimuddin Ahmed (PW-10) was In-charge of the Police Station at that time. He rushed to the place of occurrence and prepared the Inquest. He then also sent the body of Lakhiram for post mortem examination. 4. Dr. Apurba Kumar Borthakur (PW-1) conducted the post mortem examination on the dead body of Lakhiram. He found deep cut injury through neck 1 inch below thyroid cartilage and that all the soft tissues and cervical spine were cut, as a result of which, the neck was attached by a mere piece of skin and soft tissues. He also found deep cut injuries through occipital regions on the scalp. Dr. Borthakur, in his post mortem report (Exhibit P1), opined that death was homicidal due to shock and hemorrhage because of multiple cut injuries which were ante mortem in nature. 5. Md. Rahimuddin arrested the appellant on 13.3.2009 from the house of his Aunt. Thereafter, pursuant to the memorandum statement (Exhibit 6) of appellant, Md. Rahimuddin seized dao from his house in the presence of witnesses –Bircha Orang (PW 8) and Ananta Seria (PW 9). The seizure memo of dao is Exhibit P5. Md. Rahimuddin also recorded the statement of witnesses - Birbal Rajput (PW 3) and Sauiaro Rajput (PW 7), who claimed themselves to have last seen the appellant with Lakhiram. 6. As there is no direct evidence, the entire case of prosecution is based on circumstantial evidence. And the trial court convicted the appellant on the following circumstances: (i) Recovery of dao from the house of appellant pursuant to his memorandum statement; (ii) Last seen; (iii) Absconding of appellant; 7. It is pertinent to note that appellant had abjured his guilt at the stage of framing of charge and during his examination as an accused. 8. And the trial court convicted the appellant on the following circumstances: (i) Recovery of dao from the house of appellant pursuant to his memorandum statement; (ii) Last seen; (iii) Absconding of appellant; 7. It is pertinent to note that appellant had abjured his guilt at the stage of framing of charge and during his examination as an accused. 8. It is well settled that in a case of circumstantial evidence, the prosecution must establish all the circumstances by independent evidence and the circumstances so established must form a complete chain in proof of guilt of the accused beyond all reasonable doubts. The circumstances so proved must also be consistent only with the guilt of the accused. 9. According to the evidence of Md. Rahimuddin, he had recovered the dao from the house of appellant pursuant to his memorandum statement. And that recovery was made in the presence of witnesses - Bircha Orang and Ananta Seria. But, both these witnesses turned hostile and did not support the prosecution case. They have also, in their cross examination by the prosecution, categorically denied that appellant had made any disclosure statement before them and that dao was seized in their presence by the police. It is important to note that although dao was allegedly seized on the date of incident, it was not sent to Forensic Science Laboratory to prove that it was stained with blood. This is a serious lapse on the part of prosecution. Also, in this part of the Country, people normally keep dao in their house, because it is used for cutting bamboo. Thus, in view of the aforesaid, the evidence of recovery of dao does not help the prosecution in proving the guilt of appellant. 10. Regarding the evidence of last seen, Birbal Rajput says that while he was sitting at a small shop in front of the house of Lakhiram, the appellant came to him and asked about Lakhiram. Birbal further says that, on his replying that Lakhiram was in the house, the appellant went there and talked to him. According to the evidence of this witness, Lakhiram and appellant although went out together, Lakhiram did not return home. But, Birbal Rajput has not alleged that appellant was carrying dao with him. There is also absolutely no evidence to show that appellant was seen with Lakhiram at or near the place from where his body was recovered. According to the evidence of this witness, Lakhiram and appellant although went out together, Lakhiram did not return home. But, Birbal Rajput has not alleged that appellant was carrying dao with him. There is also absolutely no evidence to show that appellant was seen with Lakhiram at or near the place from where his body was recovered. Thus, it cannot be said with certainty that there was no possibility of someone else being responsible in causing the death of Lakhiram. Another witness examined by the prosecution to prove the evidence of last seen is Sauiaro Rajput. She, in her entire evidence, has no where stated that she herself saw the appellant with Lakhiram. According to the evidence of Sauiaro, people had told her that appellant had taken away Lakhiram to his house and therefore, she presumed that appellant must have killed him. Thus, in view of the aforesaid, the evidence of Sauiaro also does not inspire any confidence to us to warrant the conviction of appellant in causing the death of Lakhiram. 11. Even the last circumstance regarding absconding of appellant does not help the prosecution in any manner. The appellant was arrested by Md. Rahimuddin from the house of his Aunt on the very day when the body of Lakhiram was discovered. If the appellant was found staying in the house of his Aunt, this conduct cannot be held as unusual and also it cannot lead to a conclusion that he had absconded after committing the murder of Lakhiram. 12. It is true that the trial court when declared the appellant that he had been found guilty of committing the murder of Lakhiram and what he had to say on sentence, the appellant admitted to have committed the crime because Lakhiram had teased him. But for this admission on the part of appellant alone, he cannot be held guilty for committing the murder of Lakhiram. The possibility of appellant making this admission under stress because of his having held guilty by the trial court cannot be ruled out. As already seen above, the appellant had earlier categorically denied his guilt at the stage of framing of charge and during his examination as an accused under Section 313 of the Code of Criminal Procedure. 13. For the above reasons, we allow the appeal and set aside the conviction and sentence of appellant under Section 302 of the Indian Penal Code. 13. For the above reasons, we allow the appeal and set aside the conviction and sentence of appellant under Section 302 of the Indian Penal Code. He is reported to be in Jail and therefore he be released forthwith, if not wanted in any other case.