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2016 DIGILAW 60 (GAU)

Basanti Dutta v. State of Assam

2016-01-28

B.K.SHARMA, PARAN KUMAR PHUKAN

body2016
JUDGMENT AND ORDER Paran Kumar Phukan, J. - The judgment of conviction of the accused appellants under Section 302 of the IPC by the learned Sessions, Lakhimpur, North Lakhimpur, in Sessions Case No. 43(NL)/2005 is the subject matter of challenge in this appeal. 2. The informant of the case, Lalit Dutta, on 22.01.2003 lodged an FIR with the O/C, North Lakhimpur Police Station stating therein that some unknown persons killed his elder brother, Suren Dutta, on the previous night and his dead body was left near the gate of the house of the deceased. Police registered the FIR and on completion of investigation, submitted Charge-Sheet against the accused appellant Torit Dutta and other two accused, namely, Basanti Dutta and Satyavati Saikia under Section 302 read with Section 34 of the IPC. 3. The case was committed to the Court of Sessions. Charge under Sections 302/34 IPC having been framed against the accused and read over and explained to them, they pleaded not guilty. Thereafter, trial commenced. To prove the charge, the prosecution examined as many as 20 witnesses including the officials. The defence plea is of total denial. 4. On conclusion of the trial, the learned Sessions Judge found the accused appellants, Torit Dutta and Basanti Dutta guilty under Section 302 read with Section 34 of the IPC and accordingly, convicted them under the said Sections. The third accused Satyavati Saikia was acquitted of the charge for lack of evidence against her. 5. Being highly aggrieved and dissatisfied with the judgment passed by the learned Sessions Judge, the accused appellants have preferred this appeal. 6. In the instant case, the prosecution, as it appears, does not have a very specific narrative of the occurrence which is evident from the FIR, Ext. 1, which was lodged by the younger brother of the deceased on the next day of the occurrence. None of the accused appellants have been named in the FIR, which disclosed that some unknown persons killed the deceased Suren Dutta and his dead body was left near the gate of his house. For the first time in Court, the informant Lalit Dutta, who has been examined as PW1 stated that on the morning of 22.01.2003, his niece Pranita Dutta came and informed him that his elder brother Suren Dutta had been killed and his dead body was on the road near the gate of the house of the deceased. For the first time in Court, the informant Lalit Dutta, who has been examined as PW1 stated that on the morning of 22.01.2003, his niece Pranita Dutta came and informed him that his elder brother Suren Dutta had been killed and his dead body was on the road near the gate of the house of the deceased. Evidence of PW1 is that he immediately proceeded to the spot and saw the dead body lying on the road side and he also saw the accused appellant Basanti Dutta, wife of the deceased sitting near the dead body. On being asked, the accused appellant Basanti Dutta informed that on the previous evening, the deceased returned from his work early and at about 10/10.30 pm, he again went out and had not returned and in the following morning, she had found the dead body near the gate of her house. She also disclosed before him that at the time of going out, the deceased was wearing a pair of sandals. But PW1 neither noticed any sandal on the feet of the deceased nor near the dead body. PW1 immediately came to his elder brother Phani Dutta who was staying at Milan Nagar and informed him that Suren Dutta had been killed and both of them went to the police station and lodged the FIR. 7. His evidence further reveals that when police visited the place of occurrence, he was present and he noticed mark of injury on the face of the deceased. PW1 even put his signature in the inquest report, Ext. 2. When police inspected the interior of the house of the deceased, he was present along with his brother Phani Dutta and other persons of the village. The bed sheet was not found on the bed of the deceased. He noticed blood sticking to the mattress and also noticed trickle of blood flowing to the ground from the mattress over which sand was spread, obviously, to conceal the trail of blood. He also noticed the pair of sandals of the deceased under the bed. 8. During the process of investigation, he was present and samples of blood was collected by police from the bed and other spots in his presence. When police interrogated the son of the deceased, he disclosed that the accused appellant Torit Dutta visited the house on the previous night. 8. During the process of investigation, he was present and samples of blood was collected by police from the bed and other spots in his presence. When police interrogated the son of the deceased, he disclosed that the accused appellant Torit Dutta visited the house on the previous night. Police having come to know about it, conducted search in the house of Torit Dutta and recovered blood stained jacket and a pair of trousers from his house which were seized. According to him, the accused appellant Torit Dutta was not present at that time. 9. The evidence of PW1 is corroborated to some extent by PW2 Ratul Dutta, a cousin of the deceased who also arrived at the spot after the occurrence and saw the dead body lying near the gate of the house. He was also present when police collected samples of blood from the bedroom of the deceased and his evidence also reveals that blood was sticking to the mattress and also there was blood spots on the walls and the ground below and police collected samples of blood in his presence. PW2 has been declared hostile by the prosecution and he denied the defence suggestion that the deceased had informed him that the accused appellant Torit Dutta was having sexual relationship with his wife Basanti Dutta. He resiled from his earlier version only in this regard and regarding the other aspect, he fully corroborated the evidence of PW1. 10. Close on the heels of PW1 and PW2, PW3 Babul Chandra Das, PW4, Indreswar Dutta, PW5 Phani Dutta, PW6 Chandra Kanta Medhi, PW8 Ramesh Dutta, PW9 Jogananda Dutta also corroborated the evidence of PW1 and PW2 regarding the dead body found near the gate of the house of the deceased and seizure of blood stained cloths from the house of the accused appellant Torit Dutta and also collection of blood samples from the room of the deceased which was found on the mattress and the floor as well as adjoining walls of the room. 11. None of the witnesses saw the accused appellant causing the death of the deceased and none of the above named witnesses saw the accused appellant Torit Dutta visiting the house of the deceased on the previous evening. Prosecution is mainly relying on the evidence of PW10 Biswajit Dutta, son of the deceased. At the relevant time, he was aged about 10/11 years. Prosecution is mainly relying on the evidence of PW10 Biswajit Dutta, son of the deceased. At the relevant time, he was aged about 10/11 years. His evidence is that on the night of the occurrence, he had fallen asleep and before that he saw his father going out of his house to visit the neighbour, namely, Deep Dutta. His mother was looking for his father in the next morning and one Durga Dutta informed that a person was lying on the road near a bamboo groove about 10 ft. away from the gate of their house. He immediately proceeded to that place with his mother and saw the dead body of his father lying there. He immediately went to the house of Lalit Dutta and informed him about the incident, they came, police was informed, he could not say how his father died. 12. PW10 has been declared hostile by the prosecution as he resiled from his earlier version given before police. In cross-examination by prosecution, he admitted that his father had forbidden the accused appellant Torit Dutta to come to their house. He admitted having stated before police that on the night when he came out to attend to the call for nature, he noticed the accused appellant Torit Dutta going out of their house with a bundle. He also stated that Torit Dutta had love affair with his mahi Satyvati Saikia. His statement has been recorded under Section 164 of the Cr.P.C. by the Magistrate which has been marked as Ext. 7 and in his statement also he claims to have seen Torit Dutta going out of their house at night with a bundle. But he stated that on being tutored by Indreswar Dutta, Lalit Dutta and Phani Dutta, he had given the statement before police as well as before the Magistrate. His evidence also reveals that after the death of his father and after arrest of his mother and mahi till their release on bail, he was staying with his paternal uncle Phani Dutta and during that period, his statement was recorded by police as well as by the Magistrate and according to him, he was tutored to give the statements by his paternal uncles Indreswar Dutta, Lalit Dutta and Phani Dutta and at their instance, he made the statement implicating the accused Torit Dutta in the case. In cross-examination by defence, he was very specific to say that Torit Dutta did not go to his house on the previous night and he never saw him going out of the house with a bundle. 13. PW10 was just a child at that time and he claimed that he was tutored to give the statements before police and the Magistrate implicating accused Torit Dutta in the case. His evidence further reveals that the relationship between his father and paternal uncle was not cordial. PW10 is found to be totally unreliable and unworthy of credence and on the basis of his evidence, it cannot be held with certainty that the accused appellant Torit Dutta visited the house of the deceased on the previous night and he was seen going out with a bundle. 14. Let me now focus my attention to the evidence of the other witnesses examined by the prosecution. PW11, Dr. Manik Mohan Baruah conducted autopsy on the dead body of the deceased in the North Lakhimpur Civil Hospital. On examination, he found the following injuries:- 1. Lacerated wound on left eye brow-two in number size 3 X 1 X ½ cm and 2 X 1 X ½ cm. Contusion on lateral to the left eye brow and in left maxillary area. 2. Two abrasions with bruise on left side of the nose on face. Size- 1½ X 1½ cm of abrasion. 15. According to the doctor, the injuries were ante-mortem in nature and caused by blunt weapon. The doctor opined that the deceased died due to shock and hemorrhage as a result of the injuries sustained on the temporal region of the head and he proved his report, Ext. 8. He also opined that injuries found on the head of the deceased are sufficient in the ordinary course of nature to cause death. According to the doctor due to falling on hard substance internal hemorrhage may be caused and if proper treatment is provided, there is chance of survival. 16. The evidence of the doctor, coupled with the evidence of post occurrence witnesses established that the deceased died due to injuries sustained by him on his head and those were ante-mortem injuries. There is no direct evidence to connect the accused with the commission of the crime and the prosecution is mainly relying on the circumstantial evidence. 16. The evidence of the doctor, coupled with the evidence of post occurrence witnesses established that the deceased died due to injuries sustained by him on his head and those were ante-mortem injuries. There is no direct evidence to connect the accused with the commission of the crime and the prosecution is mainly relying on the circumstantial evidence. The circumstances relied on are that the accused appellant Torit Dutta had love affair with Satyavati Saikia, sister-in-law of the deceased and he used to visit the house of the deceased but it is not established that he had any such love affair with Satyavati Saikia. Prosecution also relied on the evidence of PW10 to establish that the accused appellant visited the house of the deceased on the night of the occurrence but PW10 has been declared hostile by the prosecution and his evidence is that on being tutored by his paternal uncles, he implicated the accused Torit Dutta in the case and he denied that he had seen the accused appellant in his house on the night of the occurrence and saw him going out with a bundle. 17. The evidence on record satisfactorily established that there were blood stains on the mattress as well as on the floor and the adjoining walls of the room of the deceased. Sample of the blood was sent to Serologist, who on examination of the same opined that it was human blood. The pair of trousers and the jacket recovered and seized from the house of the accused also contained human blood. But from mere presence of blood stains on the wall and floor and the mattress, it cannot be held with certainty that the accused appellant caused the death of the deceased. From the blood stains, at best, it could be said that the occurrence might have taken place inside the bedroom of the deceased. After sustaining the injuries, the deceased might have gone towards the gate and he might have fallen down near the gate but the chain of circumstances is missing here. It is not established that the accused appellant brought him near the gate of the house. The prosecution is also relying on the evidence of recovery of the blood stained cloths from the house of the accused appellant Torit Dutta but it is not established that the cloths belonged to him. It is not established that the accused appellant brought him near the gate of the house. The prosecution is also relying on the evidence of recovery of the blood stained cloths from the house of the accused appellant Torit Dutta but it is not established that the cloths belonged to him. He was not present at the time of recovery and seizure and ownership of the cloths cannot be solely attributed to him. 18. That apart, mere recovery of the blood stain cloths would not prove that he caused the death of the deceased or he inflicted the injuries on the deceased. His very presence in the house of the deceased on the night of the occurrence is doubtful as the vital witness PW10 who claims to have seen him in the house resiled and denied while adducing evidence in Court that he had seen him in the house and he had also seen him leaving the house with a bundle. His evidence that he was tutored by his paternal uncles to implicate the accused Torit Dutta cannot be ruled out. At the relevant time, he was just a child aged about 10/11 years and he could have been easily tutored by the elder brothers of the deceased who admittedly did not have good relationship with the deceased and his wife. 19. The other prosecution witnesses, PW11 to PW17 could not throw much light on the incident. They were post occurrence witnesses and the evidence of these witnesses only proved that the dead body was lying near the gate and there were blood spots on the walls and mattress and floor of the house of the deceased. It is also established that the blood stained cloths were recovered from the house of the accused. 20. Delving into the depositions of all the witnesses examined by the prosecution, we have found that the presence of the accused appellant Torit Dutta in the house of the deceased has not been established and there is no evidence either direct or circumstantial to connect him with the commission of the crime. The involvement of the accused appellant Basanti Dutta, wife of the deceased has also not been established and there is no evidence that she assaulted her husband causing his death. 21. The involvement of the accused appellant Basanti Dutta, wife of the deceased has also not been established and there is no evidence that she assaulted her husband causing his death. 21. From the evidence, it appears that the deceased was a drunkard and his death due to falling cannot be ruled out, more particularly, when the doctor deposed that the injuries sustained by the deceased could have been caused due to falling on hard substance. 22. In view of our above discussion and having regard to the evidence on record, we find and hold that the prosecution has failed to prove beyond doubt that the accused appellant caused the death of the deceased. The Charge under Section 302 IPC has not been established. Consequently, the appeal is allowed. The judgment of the learned Sessions Judge, Lakhimpur, North Lakhimpur convicting the accused appellants is set aside. The accused are ordered to be released forthwith, if they are not required in connection with any other case. Send down the LCR along with a copy of the judgment for information and necessary action.