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2016 DIGILAW 72 (GAU)

Golap Nath v. State of Assam

2016-02-02

INDIRA SHAH, RUMI KUMARI PHUKAN

body2016
JUDGMENT : Rumi Kumari Phukan, J. We have heard Mr. S.C. Biswas, learned Amicus Curie appearing for the appellant. Also heard Ms. S. Jahan, learned State Counsel appearing for the respondent State. 2. The appeal is directed against the judgment and order dated 21.12.2012, passed by the learned Sessions Judge, Udalguri in Sessions Case No. 170(D-U)/2012 whereby the appellant has been held guilty under Section 302 I.P.C. and sentenced to RI for life and also to pay a fine of Rs. 50,000/-, in default, SI for six months. 3. The prosecution case, in a nut-shell, is that one Ganesh Sonari, resident of Naharbari, P.S. – Mazbat, district – Udalguri lodged an FIR before the OC, Mazbat Police Station on 11.04.2009 to the effect that on 08.04.2009, a quarrel took place between his elder sister and brother-in-law and she has been kicked in the belly and on 11.08.2009, his sister Kalpana Nath had died. On the basis of the FIR, a case under Section 302 I.P.C. was registered against the accused person, who is the husband of the deceased and after due investigation, charge-sheet was submitted against the accused person under Section 302 I.P.C. Accordingly, the accused stood the trial as against the charge under Section 302 I.P.C. 4. The learned Session Court on receipt of the case on committal, framed the charge under Section 302 I.P.C. and explained to the accused person to which he pleaded not guilty and claimed to be tried. 5. In course of trial, the prosecution examined as many as 7 witnesses in support of the charge and defence examined none. Plea of defence is of total denial. Statement of the accused person recorded under Section 313 Cr.P.C., and at the conclusion of the trial, the learned Trial Court held the accused person guilty under Section 302 I.P.C. and convicted him as aforesaid. Being aggrieved and dissatisfied with the judgment and order rendered by the learned Sessions Judge, present appeal has been preferred assailing several infirmities in the aforesaid judgment and order. 6. It has been urged by Mr. S.C. Biswas, learned Amicus Curie that in spite of having no any eye witness to the occurrence and no any convincing evidence on record to complete the chain of circumstances so as to rely on the circumstantial evidence, the learned Trial Court has arrived its conclusion only on surmises and conjectures without any legal evidence on record. S.C. Biswas, learned Amicus Curie that in spite of having no any eye witness to the occurrence and no any convincing evidence on record to complete the chain of circumstances so as to rely on the circumstantial evidence, the learned Trial Court has arrived its conclusion only on surmises and conjectures without any legal evidence on record. It has been seriously contended by the learned counsel for the appellant that it is the case where the informant himself has not implicated the accused person and same is the matter with other witnesses, who have no any idea as to how the deceased sustained the injury, resulting her death. It is also urged by the learned counsel for the appellant that there is absolutely not evidence on record so as to speak about the fact that it was the accused who was the assailant, rather some of witnesses has stated that the deceased died of illness. Accordingly, it is submitted that order of conviction cannot be sustained in view of inappropriate evidence on record and wrong appreciation by the learned Trial Court. 7. On the other hand, Ms. S. Jahan, learned Additional Public Prosecutor, Assam has summarized her argument confining to the point that it has been brought on record that the deceased sustained some injury on her person prior to her death and attending Medical Officer also found that small intestine of the deceased was ruptured and victim died of such injury. As there was none, other than accused along with the deceased at the relevant period so it was the accused who have inflicted such injury upon the victim woman. However, the learned Additional Public Prosecutor, Assam made no serious submission on the matter of other evidence on record. 8. For proper appreciation of the matters on record and the arguments so advanced, let us appreciate the evidence on record. PW – 1, Ganesh Sonari is the brother of the deceased, who has stated that the accused married his deceased sister Kalpana Sonari about 20 years ago and he did not know how she died. He further deposed that he lodged the ejahar in connection with the incident on being informed by one Lalit Barman. He further deposed that he had made no submission before police that the accused kicked his elder sister. 9. He further deposed that he lodged the ejahar in connection with the incident on being informed by one Lalit Barman. He further deposed that he had made no submission before police that the accused kicked his elder sister. 9. The other witness, i.e. PW – 2, Lakhiram Sonari, father of the victim woman deposed that he did not know how Kalpana died. He further stated that he did not state before police that deceased Kalpana had stayed at his house prior to two weeks of the incident and she told about assault made by accused in her stomach. He further stated that he had no knowledge as to whether he stated before the police that the accused had assaulted his daughter. PW – 3, Chota Sonari, who is the cousin brother of the deceased deposed that his son Akash Sonari informed him about the incident and he further stated that deceased Kalpana died of illness. He further denied that when deceased Kalpana was able to speak she said that as a result of assault done by her husband, she had succumbed those injuries. 10. PW – 4, Smti Moni Nath is the daughter of the deceased has simply stated that on being informed about the death of her mother, she returned and found that Doctor as well as Quack who provided treatment to her mother and in cross-examination, she has stated that her mother was suffering from illness and she was a heavy drunker. She has denied any statement before police to the fact that there was quarrel between her father (accused) and mother (deceased) and as her father assaulted her mother so she fell ill and thereafter she died. 11. Thus, we found form all the evidence on record right from the brother, father of the victim as well as the own daughter of the deceased that they have not disclosed about the fact as to how the deceased sustained injury on her stomach. Though they have stated about the injury so sustained by the deceased but they have no way implicated the accused. 12. The other witnesses i.e. PW – 5, Kendra Baghat is the Quack, who provided treatment to the deceased prior to that day and he has specifically stated that he provided treatment to Kalpana (since deceased) for her mental disease and she died for consuming liquor. 12. The other witnesses i.e. PW – 5, Kendra Baghat is the Quack, who provided treatment to the deceased prior to that day and he has specifically stated that he provided treatment to Kalpana (since deceased) for her mental disease and she died for consuming liquor. His evidence apparently no way supporting the prosecution case and in view of such mattes on record, the evidence of Medical Officer/PW – 6, Dr. Moni Deep Rai Deka who had testified all the fact that deceased died out of injury sustained in abdomen, small intestine is of no help to the prosecution. The medical evidence is used to support and corroborate the oral evidence on records to prove the genuineness of the allegation. Here in the case as we found that there is no iota of evidence on record as against the accused person to embrace within the purview of charge of murder under Section 302 I.P.C. 13. Though the evidence of IO/PW – 7, Nabin Boro, the statement of the PW – 1, PW – 2, PW – 3 and PW – 4 has been proved that they make certain statement before the IO about the assault made by the accused to his wife/the deceased but none of the witnesses has admitted about such statement before the IO. In view of the matter, the evidence of the IO cannot develop the case, which otherwise not supported by the relevant witnesses as discussed about. 14. On the next, the accused has denied all the allegations in his statement under Section 313 Cr.P.C. and in such eventuality, it can be arrived at, this is a case of no eye witness to the occurrence nor there appears any chain of circumstances so as to rope the accused with the offence charged. The learned Court below has discussed the evidence on a quite different yard-stick which is not permissible in law. Until and unless an offence is proved by legal evidence either oral or circumstantial evidence, the Court cannot plunge into some other area to make out an offence persuaded by own assumption. No doubt the offence under Section 302 I.P.C. is a serious offence and a mother of three children has died but the Court being a Court of law not of emotion, cannot arrive its conclusion mainly on the basis of surmises and conjectures. 15. No doubt the offence under Section 302 I.P.C. is a serious offence and a mother of three children has died but the Court being a Court of law not of emotion, cannot arrive its conclusion mainly on the basis of surmises and conjectures. 15. All the circumstances relied upon by the Court in paragraph 35 of the judgment and order is not at all enough to prove the offence under Section 302 I.P.C. The evidence on record apparently reflect that there is no evidence as to who had seen that at the particular time, on the fateful day, accused had a quarrel with the deceased, that the accused assaulted his wife, that for the assault made by the accused, the wife fell ill. In absence of such requisite evidence, it is not permissible to draw the presumption of guilt of the accused only on the evidence of Medical Officer, who found one injury on the body of the deceased as has been mentioned earlier. The Court has to play an impartial role while adjudicating a case and can only base upon the evidence brought on record. Here in the case while there is no any eye witness to the occurrence nor any circumstances (not to speak of chain of circumstances) is proved by the prosecution so as to arrived at the guilt of accused. 16. All the witnesses have turned hostile and nothing discernable from their evidence so as to implicate the accused with the offence alleged. The evidence of the brother of the deceased/PW – 3 and evidence of daughter of the deceased/PW – 4 and the Quack, who treated the deceased/PW – 5 is very crucial while it is stated that the deceased died of illness. In view of such matter on record, findings of the Court is perverse and liable to be interfered into. 17. In view of the foregoing discussions and findings about, we are of the opinion that the prosecution has measurably failed to prove the charge under Section 302 I.P.C. beyond all reasonable doubt and the findings of the Court below cannot sustain. Accordingly, the impugned judgment and order dated 21.12.2012 passed by the learned Sessions Judge, Udalguri in Case No. 170(D-U)/2012 is hereby set aside and accused/appellant is acquitted from the charge. 18. We appreciate the service rendered by Mr. Accordingly, the impugned judgment and order dated 21.12.2012 passed by the learned Sessions Judge, Udalguri in Case No. 170(D-U)/2012 is hereby set aside and accused/appellant is acquitted from the charge. 18. We appreciate the service rendered by Mr. S.C. Biswas, learned Amicus Curie, who assisted the Court by representing the appellant, who however, refused to accept any fees against his service. 19. The accused be released forthwith, if he is behind the bar. Return the L.C.R.