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2016 DIGILAW 713 (GAU)

Pranab Nath S/o Sri Uttam Nath v. State of Assam

2016-08-02

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT & ORDER (N. Chaudhury, J) Prosecution story is that one Ananta Kumar Roy, as informant, lodged an ejahar before Howly out-post of Sarthebari Police Station on 13.12.2006 informing that on 12.12.2006 in between 10.15 a.m. to 11.00 a.m. unknown miscreants trespassed in his house during absence of him and his wife and not only took away one bag from Godrej almirah containing Rs. 2,000/- and gold ring and ornament of silver but also murdered his only son named Pranab Jyoti Roy with the help of sharp weapon. G.D. Entry No. 380/2006 was immediately registered and thereafter Barpeta Police Station Case No. 882/2006 under Section 448/380/302 of the IPC was initiated. I/O visited the place of occurrence and recorded statements of witnesses and arrested some suspects. Ultimately, police submitted charge-sheet against Pranab Nath and sent him for trial. 2. On being committed to sessions, learned District and Sessions Judge, Barpeta framed 3 charges against Pranab Nath under the aforesaid provisions of law. 3. In course of trial, prosecution examined as many as 36 witnesses whereas defence examined 3 witnesses in his behalf. There was no eye witness. But relying on circumstantial evidence, the learned Additional Sessions Judge (FTC), Barpeta by his judgment and order dated 06.07.2009 in Sessions Case No. 73/2007 convicted the accused under section 448/380/302 of the IPC. The accused was sentenced to undergo R.I. for 3 months under section 448 of the IPC, R.I. for 6 months under section 380 of the IPC and a fine of Rs. 500/-, in default for S.I. of further 15 days and life imprisonment under section 302 of the IPC. This judgment and order dated 06.07.2009 has been called in question in the present criminal appeal preferred under section 374 of the Code of Criminal Procedure. 4. We have heard Mr. H Das, learned counsel for the appellant and Ms. S Jahan, learned Additional Public Prosecutor. We have also perused the lower court records including the depositions of the witnesses and the documents adduced by them. 5. 4. We have heard Mr. H Das, learned counsel for the appellant and Ms. S Jahan, learned Additional Public Prosecutor. We have also perused the lower court records including the depositions of the witnesses and the documents adduced by them. 5. It is to be noted that on previous occasion when this appeal came up for consideration before another Division Bench, it came to notice that there was probability of the accused being a juvenile at the time of commission of offence and accordingly an order was passed directing the learned District and Sessions Judge, Barpeta to hold an enquiry about the age of the accused. The learned District and Sessions Judge accordingly held the enquiry, considered the evidence of CW 1 and CW 2 and documents like birth certificate, horoscope and other documents and thereupon held that the accused Pranab Nath was born on 18.11.1990 and he was only 16 years 24 days as on the date of occurrence i.e. 12.12.2006. Thus, it came to light that the accused was a juvenile in conflict with law within the meaning of Section 2(l) of the Juvenile Justice (Care and Protection of Children) Act, 2000 and so the judgment of conviction and sentence passed against him shall be deemed to have no effect under Section 7(A)(2) of the aforesaid Act. 6. A perusal of the order sheet in Criminal Misc. Case No. 523/2012 arising out of the present appeal does not go to show that the accused was granted bail by this court and this means that he has been in custody till date and he has already served sentence for not less than 4 years. 7. Be that as it may, we have perused the impugned judgment of conviction and sentence. There is no eye witness in this case and the conviction is based on circumstantial evidence. PW 3 being the minor sister of the victim, stated that on returning home along with her mother she found that the back door of the house was open and the front door was closed. PW 4 being another minor sister of the victim, claimed to have entered through the back door and opened the front door. Thereafter her mother entered the house. She found that her elder brother was lying on the floor and there was blood all around. PW 4 being another minor sister of the victim, claimed to have entered through the back door and opened the front door. Thereafter her mother entered the house. She found that her elder brother was lying on the floor and there was blood all around. Her mother called the people nearby and thereafter her brother was taken to hospital where he was declared dead. She says that dacoit killed her elder brother. PW 4 also made similar statement but she added that the day before the day of occurrence accused had come to their house and repaired the C.D. Player which had been out of order. The accused had come and left the house upon climbing over a wall. Relying on this piece of evidence, prosecution wanted to make out a case that accused used to visit the place of occurrence whenever PWs 1 and 2 were absent. But no evidence has been led by any of the 36 witnesses examined by the prosecution to show that on the fateful day the accused person had come to the house or in the vicinity of the place of occurrence. 8. PWs 5 and 6 were examined to prove that the dead body was taken to Howly C.H.C on 12.12.2006 by PW 1 and others. PW 7, on the other hand, is dog master of CID Branch, Guwahati who stated that he along with dog squad reported to Howly Police Station and went to the place of occurrence. He found blood-stains on the wall and he made the dog to climb over the wall. The dog went to the nearby betel nut orchard. Then it went near a pond and moved around it and then it proceeded by the side of the hospital and reached the Highway. This shows that the accused might have boarded on a vehicle and left the place. Thus, the sniffer dog could not find out any clue. 9. PW 8, Khanin Nath, hails from Pub Khagrachar, a place under Patacharkuchi Police Station away from the place of occurrence. He said that on 13.12.2006 her paternal aunt took the accused to their house at around 11/11.30 a.m. He asked both of them to have food but accused took only a small amount of rice and did not eat much. PW 8, Khanin Nath, hails from Pub Khagrachar, a place under Patacharkuchi Police Station away from the place of occurrence. He said that on 13.12.2006 her paternal aunt took the accused to their house at around 11/11.30 a.m. He asked both of them to have food but accused took only a small amount of rice and did not eat much. His paternal aunt is Dharitri who was also examined as PW 16 but from her statement it does not appear as to how any circumstance for connecting the accused with the offence could be made out. If accused had gone to the house of PW 8 along with PW 16 on the next day of occurrence and could not take much food, it is not clear as to how it becomes a circumstance against the accused for committing the alleged offence. PW 9 is also from the family of PW 8 and she also stated the same fact about coming of the accused person to their house on 13.12.2006 at Pub Khagrachar under the Patacharkuchi Police Station. PW 10 is yet another witness to depose about the visit of the accused to Pub Khagrachar along with PW 16. They did not say anything to connect the accused with the offence committed. PW 11 deposed that accused belongs to his village. On 12.12.2006, he was engaged in construction works. He saw PW 1 crying and found an injured boy. He brought the boy to C.H.C., Howly and doctor declared him dead. Having gone through all the depositions it appears that prosecution examined 36 witnesses but none of these witnesses deposed to the effect that on the date of occurrence accused was seen in the locality. They could not furnish any other clue to establish any chain of circumstances. The prosecution made endeavour to create another circumstance against the accused by saying that a chain was found from the aunt’s house of the accused and according to PW 3 and 1, the chain was theirs. Now if the chain was stolen and it was found in the house of PW 16 or anybody else, the prosecution sought to urge that it is the accused who might have taken the chain because he had visited the house of the victim on the preceding day of occurrence. The defence, on the other hand, examined 3 witnesses. The accused was examined as DW 1. The defence, on the other hand, examined 3 witnesses. The accused was examined as DW 1. He said that on 12.12.2006, when he returned home from Pathsala at about 3 O’clock then his mother told him that a boy was killed. He went to the hospital but he did not find him as the dead body had already been taken from the hospital. He reached the courtyard of Banamali Das when sniffer dog was there and then he returned home. 4/5 days thereafter police arrived and he was taken to Howly Police Station. He denied to have killed the victim. His mother was examined as DW 2 and she deposed on oath that her son was at Pathsala on the fateful day. DW 3 is one Padumi Nath. She is also a neighbour of the accused. 10. Having restated the aforesaid depositions of 36 PWs and 3 DWs, the learned trial court held the accused to be guilty under Section 448/380/302 of the IPC on circumstantial evidence but no chain of circumstances have been specifically narrated upon apprisal of the prosecution evidence. 11. The learned trial court after considering the evidence of PW 16, observed that PW 16 described the seized golden chain to be the chain of her sister Anjali, purchased from Howly Rash Mela. But since defence did not examine Anjali Nath as their witness, the learned trial court held that defence did not discharge its burden. It is the case of the prosecution that golden chain of PW 1 was recovered from the house of PW 16. PW 16 being the witness of the prosecution side, came to the witness box and stated that the golden chain seized from her house does not belong to PW 1. That being the position, the prosecution story of recovery of golden chain fails. The learned trial court wrongly shifted the burden to the defence in this regard. Similarly, one more golden chain was seized from the house of PW 21 and she claimed to have purchased the same from Rash Mela and these golden chains seized as M. Ext. 1 and M. Ext. 2 were claimed by PW 3 to be theirs. Thus, there is apparent contradiction in the evidence of the prosecution side itself about identity and recovery of golden chain. 1 and M. Ext. 2 were claimed by PW 3 to be theirs. Thus, there is apparent contradiction in the evidence of the prosecution side itself about identity and recovery of golden chain. The prosecution witnesses being PW 16 and PW 21 did not support the prosecution story that golden chain of PW 1 was stolen from the place of occurrence at the time of committing murder of the victim. This circumstance is also not established by the prosecution and thus, there is no circumstance, whatsoever, which can prove beyond reasonable doubt that the accused had trespassed into the house of PWs 1, 2 and 3 on the day and time of occurrence and had either stolen the golden chain or had committed the ghastly murder of the minor victim. Prosecution has miserably failed to establish any of the charges against the accused beyond reasonable doubt. 12. In view of what has been stated above, the judgment of conviction and sentence is hereby set aside and the accused is acquitted of all the charges. The appellant be released forthwith from jail provided he is not required in any other case.