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2016 DIGILAW 710 (GAU)

Sukul Das v. State of Assam

2016-08-02

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT AND ORDER (Ajit Singh, C.J.) The sole appellant Sukul Das has been convicted under Section 302 of Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/- with default stipulation. Two coaccused persons namely (i) Pradip Das and (ii) Ashok Das were also tried for an offence under Section 302 of the Indian Penal Code, but they have been acquitted by the same impugned judgment. 2. On the morning of 16.2.2009, dead body of Pabitra Das, aged 30 years, was found lying in a hut near the fishery, commonly called “Kharikhang Beel”. The hut was erected by the village fishermen to keep watch in the fishery. Immediately, parents and brother of Prabitra Das, namely, Amulya Das (PW-3), Bipula Das (PW-1) and Anitra Das (PW-2) were informed by one of the villagers and they rushed to the place of occurrence from their house. Likewise, Ranjan Das (PW-7), on instruction from the villagers, informed the police of Police Station Lanka about the discovery of dead body. 3. Bipin Chandra Nath (PW-12), Officer-in-charge of Police Station Lanka came to the place of occurrence and prepared sketch map, exhibit 6, dated 16.2.2009. He also seized one yellow T-shirt (sporting) which was found floating in the water at some distance from the dead body. The seizure memo of yellow T-shirt is dated 16.2.2009 and marked as exhibit 2. Around the same time, the Executive Magistrate, Bubul Bora prepared the inquest report Exhibit 4 on the dead body of Pabitra. The inquest report is also dated 16.2.2009 and was prepared in the presence of Amulya Das and Anitra Das (father and brother of Pabitra Das). The inquest report even bears the signature of Anitra Das. In the inquest report, the Executive Magistrate mentioned that on examination of Anitra Das, brother of the deceased and the witnesses, it was learnt that at about 6.30 PM, on 15.2.2009, Pabitra Das had gone to village Kharikhang to see a girl for his matrimonial purpose, but upon finding his dead body inside the hut situated on the southern bank of the Kharikhang Beel at about 7 AM, on the following morning, the news had spread. Admittedly, the name of appellant was no where mentioned even as suspect in the inquest report. He was also not stated to have accompanied Pabitra Das when the latter left his house. Admittedly, the name of appellant was no where mentioned even as suspect in the inquest report. He was also not stated to have accompanied Pabitra Das when the latter left his house. After the inquest report was made, dead body of Pabitra Das was sent for post mortem examination. 4. Dr. Durgeswar Das (PW-4) conducted the post mortem examination on the dead body of Pabitra on 16.2.2009, around 4.30 PM. He found crushed injuries on the right side of face and head of Pabitra Das. The doctor, in his post mortem examination report, exhibit 3, opined that Pabitra Das died due to injuries sustained. 5. Mother Bipula Das (PW-1) lodged the ejahar after two days on 18.2.2009 at Lanka Police Station, wherein she alleged that on the evening of 15.2.2009, at about 6.30 PM, Pabitra Das had left the house along with the appellant by saying that he has to see a girl for his match and at that time, she also gave him Rs.110/- for expenses. Bipula further alleged in the ejahar that on 15.2.2009, the appellant had even visited her house at about 7.30 AM, and at that time, he was wearing a yellow T-shirt, which was found lying smeared with blood near the dead body of Pabitra. 6. The police, on suspicion, arrested the appellant about one month after the date of incident and seized a rod from the Beel on his disclosure. The police on suspicion also arrested Pradip and Ashok. 7. The appellant was tried for committing the murder of Pabitra Das with a rod. As mentioned above, Pradip and Ashok were also tried along with the appellant for the same offence, but they have been acquitted. 8. According to the prosecution case, the appellant and Pabitra were childhood friends. On 15.2.2009, the appellant visited the house of Pabitra Das, in which, Amulya Das, Bipula Das and Anitra Das also lived. And in the evening around 6.30 PM, Pabitra left the house along with appellant on the pretext of finding a match for himself. But both of them went to hut where the appellant committed the murder of Pabitra Das by causing injuries to him with a rod and run away from the village. 9. During the trial, the appellant abjured his guilt and pleaded false implication. 10. As there is no direct evidence, the entire case of the prosecution is based on circumstantial evidence. 9. During the trial, the appellant abjured his guilt and pleaded false implication. 10. As there is no direct evidence, the entire case of the prosecution is based on circumstantial evidence. The trial court convicted the appellant on the following circumstances:- (i) Last seen; (ii) Seizure of yellow T-shirt; and (iii) Absconding of appellant. 11. 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. 12. Regarding the evidence of last seen, Anitra Das, Bipula Das and Amulya Das have testified in one voice that on the evening of 15.2.2009, Pabitra Das had left the house along with the appellant to find a match for himself and when both of them left, Bipula Das gave Pabitra Rs.110/- for expenses. But, on the next morning, these witnesses were informed about dead body of Pabitra having been found in a hut near Kharikhang Beel. Bipula Das has admitted in her cross-examination that appellant and Pabitra were very close childhood friends and there was no quarrel between them. According to Bipula Das appellant had even told her that if they got late then Pabitra would stay in his house. Anitra Das has testified that he saw Pabitra leaving the house with appellant on the evening of 15.2.2009. Similar is the testimony of Amulya Das. We however do not find the evidence of last seen as narrated by Amulya, Bipula and Anitra truthful and reliable. This we say so because had Pabitra left his house with the appellant on the evening of 15.2.2009, this important fact would have definitely been mentioned in the inquest report exhibit 4 dated 16.2.2009 prepared by the Executive Magistrate in the presence of Anitra Das and Amulya Das. The inquest report clearly mentions that it was prepared in the presence of father (Amulya) and brother (Anitra) of Pabitra and upon examination of Anitra and the witnesses, it was learnt that at about 6.30 PM on 15.2.2009, Pabitra went to Kharikhang village to see a girl for his matrimonial purpose. This specific narration in the inquest report completely belies the evidence of last seen. This specific narration in the inquest report completely belies the evidence of last seen. There is not even a whisper against the appellant that he was ever seen with Pabitra by anyone what to speak of Amulya and Anitra on the previous day. There is also no evidence to show that appellant was seen with Pabitra at or near the place from where his dead body was found. Thus, it cannot be said with certainty that there was no possibility of someone else being responsible for causing the death of Pabitra. 13. The seizure of T-shirt also does not connect the appellant with the commission of crime. There is absolutely no evidence to establish that the seized T-shirt actually belonged to the appellant. It was seized on 16.2.2009. There is no evidence to show that it had any blood stain. At the time of seizure, T-shirt was found floating on the bank of pond. Nilamoni Das (PW-5) is a seizure witness. He has testified that people washed clothes in the fishery from where T-shirt was found. It is also to be noted that Bipula Das, after two days of the seizure, in her ejahar (First Information Report) mentioned that appellant had worn the same T-shirt on 15.2.2009, when he had come to her house. Apparently, her this statement cannot be relied upon because it is afterthought and has been made to somehow connect the appellant with the murder of Pabitra. 14. The last circumstance regarding absconding of appellant does not help the prosecution in any manner. It is well settled that absconding by itself does not prove the guilt of a person. A person may run away due to fear of false implication or arrest. [see S.K.Yusuk vs. State of West Bengal, (2011) 11 SCC 754 ]. 15. Finally, we also deem it proper to mention that normally the investigation in criminal case commences after registration of First Information Report. But, in the case at hand, the First Information Report was lodged after substantial completion of investigation like preparation of sketch map of place of occurrence, making of inquest on the dead body, seizure of T-shirt, post mortem examination etc. The ejahar was made by Bipula Das against the appellant on 18.2.2009 and the same was registered as First Information Report on that date. And as seen above, the police had already completed the investigation substantially on 16.2.2009. The ejahar was made by Bipula Das against the appellant on 18.2.2009 and the same was registered as First Information Report on that date. And as seen above, the police had already completed the investigation substantially on 16.2.2009. This itself creates a serious doubt in the entire prosecution case against the appellant. Not only this, the Investigating Officer Bipin Chandra Das (PW-12) has admitted in his cross examination that First Information Report was lodged on 16.2.2009 at 11 AM, but the said First Information Report has not been produced by the prosecution. An attempt has been made by Bipula Das to explain the delay in lodging the First Information Report by saying that she was busy with the cremation of Pabitra. But, as seen above, Amulya and Anitra had actively participated in the investigation on 16.2.2009. They were also present at the time of making of the inquest. Therefore, why no ejahar was made by them on 16.2.2009 is a mystery. Apparently, the ejahar was made when no evidence could be collected against anyone during investigation and the name of appellant was mentioned therein merely on suspicion because he was not present in the village during the investigation on 16.2.2009. 16. 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.