Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 763 (GAU)

Narayan Kalita v. State of Assam

2016-08-12

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT AND ORDER : N. Chaudhury, J. The prosecution story is that one Narayan Kalita as informant lodged an ejahar with officer-in-charge of Pathshala Police Station on 19.9.2002 informing that his mother Smti Padma Kalita had gone to his maternal uncle’s house at Natun Belna. He also went to his maternal uncle’s house at the afternoon. Having returned home at 10.15 pm, he found his door closed and his father absent. Compelled, he went to the house of his co-villager, Jayanta kalita and stayed the night there. On the following day at about 7 am he came back home and found his door locked. He saw marks of blood at his verandah. There were marks of blood indicating dragging of body for about 15 meters from the verandah to the south. At the end of these signs, there was a freshly dug pit. He suspected that since his father was not to be seen anywhere, he might have been killed by someone and buried in the pit. He informed this to Pathshala Out post whereupon Police and Magistrate came and dug out the dead body of his father Hanghsa Kalita, aged about 55 years. There were cut injuries on the back side of his neck with sharp weapon. Upon receipt of the ejahar, GD entry No. 486 dated 19/9/2002 was recorded and whereupon Patacharkuchi P.S. Case No. 176 of 2002 under Section 302/201 IPC was registered. 2. In course of investigation, Police recorded the statements of witnesses, held inquest over the dead body, sent the dead body for postmortem examination and upon receipt of report of post mortem examination submitted charge sheet on 21.2.2003 against Narayan kalita under section 302/201 IPC. As many as 14 witnesses were named in the charge sheet. The learned JMFC, Bajali, Pathshala by order dated 7.6.2003 committed the case to sessions leading to registration of Sessions Case No. 63 of 2003 in the court of learned Additional Sessions Judge, FTC at Barpeta. The learned Sessions Judge framed charges against the accused under Section 302/201 IPC. After the charge was read over to him, the accused pleaded not guilty and claimed to be tried. 3. In course of trial, prosecution examined as many as 13 witnesses including medical officer Dr. Bhupesh Choudhury as PW-12 and Investigating Officer, Sri M. Barkakati, S.I. of Police as PW-13. As many as 8 documents including charge sheet were exhibited. 4. After the charge was read over to him, the accused pleaded not guilty and claimed to be tried. 3. In course of trial, prosecution examined as many as 13 witnesses including medical officer Dr. Bhupesh Choudhury as PW-12 and Investigating Officer, Sri M. Barkakati, S.I. of Police as PW-13. As many as 8 documents including charge sheet were exhibited. 4. PW-1, Sri Jayanta kalita is the person in whose house the accused had passed the previous night of occurrence. He said that at around 8/8.30 pm one day about 10 years back, he was returning from the market and visited the place where carom competition was going on. He came home from there at around 9/9.30 pm to have dinner and then prepared for sleeping. At that time, accused came to his house and requested to give him shelter for that night. On the following day, at around 8/8.30 am he left for his house which is about half km away. Sometime thereafter police came to the house of the accused and being curious, the PW-1 also went there. He found village people had already assembled there but the accused was not at home. He did not find the dead body of Hangsha Kalita as it had already been taken away by police for post mortem examination. In course of his cross examination he stated that on the previous night when he had left the place of carom competition at around 10/10.30 pm, Narayan had also left from there. Normally, it takes about 10 minutes to go to Narayan’s house from that place but Narayan took about half an hour to reach the house of PW-1 asking for shelter for the night. They shared the same bed. 5. PW-2, Sri Satyen Kalita is the cousin of the accused and nephew of the deceased. He was also present at the place of carom competition in the village on the previous night of occurrence. At about 9.15 pm, he returned home from there, took meal and then went to bed. On the following day, at about noon he came to know that his uncle Hangsha Kalita had been killed. He saw cut injury on the neck of Hangsha kalita. He was present during inquest of the dead body and signed as witness to the inquest report (Exhibit-1). He heard from the villagers that accused had murdered his father. On the following day, at about noon he came to know that his uncle Hangsha Kalita had been killed. He saw cut injury on the neck of Hangsha kalita. He was present during inquest of the dead body and signed as witness to the inquest report (Exhibit-1). He heard from the villagers that accused had murdered his father. In course of cross examination, he only added that on the previous night at around 9.15 pm, he spotted his uncle Hangsha Kalita moving towards the house in inebriated condition. He was shouting along – “Narayan, you prepare food. I can’t do it.” He was not aware as to whether there was any quarrel between the accused and his father Hangsha Kalita. He did not know who had killed Hangsha Kalita. 6. PW-3, Kishor Malakar is a co-villager. He came home from his place of work at around 8 pm on the previous night after playing carom in a tent house near his house. On the following day, he came to learn that Hangsha Kalita had been killed by somebody. He went to the place of occurrence and found many people were present there. He saw bleeding, cut injury on the neck of Hangsha Kalita. He came to know that accused had confessed before police and the people that he had killed his father. In course of cross examination, he could not say if there was any quarrel between the accused and his father. He was not present when the accused had made confession before the police and the public. He could not say who had killed Hangsha Kalita. The adjacent neighbors of the deceased are Atul kalita and one Sharma. 7. PW-4, Mrinal kalita is a businessman of the same village. According to him, he knew about death of Hangsha Kalita at around 1 pm on the following day of incident. Having come to the place of occurrence, he found a gathering of people there. Police recovered the dead body from a hole. Having seen the dead body, he felt dizziness and came home. Later on, he came to know that accused had confessed to have killed his father. He emphatically said in course of cross examination that there was no quarrel between the accused and his father. The deceased used to take wine. 8. PW-5, Haren Kalita is also a businessman of the village. Later on, he came to know that accused had confessed to have killed his father. He emphatically said in course of cross examination that there was no quarrel between the accused and his father. The deceased used to take wine. 8. PW-5, Haren Kalita is also a businessman of the village. He is the elder brother of the deceased. He could not say as to how Hangsha had died. On the following day, he heard that someone had killed his brother Hangsha. He found police digging out the dead body from a pit in the house of Hangsha. There was cut injury on his neck. He signed as witness of inquest. In course of his cross examination he stated that after police tortured on the accused, he confessed to have killed his father. He did not witness any quarrel between the accused and his father. He could not say as to who has killed his brother. 9. PW-6, Hiren Barua is a service holder. Having heard about the murder of Hangsha Kalita, he visited the place of occurrence and saw police digging out the dead body from a pit. There was cut injury at the neck of the deceased. An Executive Magistrate was present at the time of inquest. His signature was taken as witness in the inquest report Exhibit-1. In course of his cross examination, he could not say as to whether accused had killed his father. 10. PW-7, Smti Chitra Kalita is the daughter of the deceased and elder sister of the accused. She came to know about the incident only on the following day. The accused had gone to her house on the morning at around 9/10 am and informed that he had to spend the previous night at the house of somebody else as his parents were not at home. PW-7 gave her food that morning. Thereafter, the accused left. On being questioned, he informed her that the parents had gone to his maternal’s house. But, at around noon, she came to know from the people that her father had been killed and dead body buried. Then she came to the place of occurrence and saw the dead body. In course of cross examination, she stated that there was no quarrel between the accused and the father. But the accused used to quarrel with their step-mother who used to live with their father. Then she came to the place of occurrence and saw the dead body. In course of cross examination, she stated that there was no quarrel between the accused and the father. But the accused used to quarrel with their step-mother who used to live with their father. However, her step-mother was not present at the house on the previous night of occurrence. She could not say as to who had killed her father. 11. PW-8, Sri Purushottam Kalita is the brother-in-law of the accused. He corroborated the statement of his wife, PW-7 about coming of the accused to their house in the morning of the day, the dead body of Hangsha kalita was found. He visited the place of occurrence when police recovered the dead body. He stated in course of cross examination that his father-in-law never complained to him of having any quarrel with the accused. Both the accused and the deceased used to visit their house. He could not say who had killed his father –in-law. 12. PW-9, Roban Roy stated that he went to the place of occurrence and found the dead body lying near ditch of the house. He heard that accused had killed his father. Later police seized dao vide Exhibit-2 wherein his signature was taken as witness. He could not say what was written in Exhibit-2 Seizure list. Police did not ask the accused any question in his presence. Exhibit-2 over which he signed as witness was never read out to him. He did not see or hear any quarrel between the accused and his father. 13. PW-10, Khargeswar Barua had his marriage in the village where accused resides. Having heard about the incident he went to the place of occurrence and saw the dead body on the courtyard. Police was already present there who seized one dao, one shirt, jeans pant, hoe etc. Exhibit-2 and 3 are the seizure list wherein he is also a witness. But he did not say as to whether there was any blood stain on any of these seized materials. Replying to pointed question at the time of cross examination, he emphatically stated that accused had cordial relation with his father. He found the accused weeping when police went there. He could not say who had killed Hangsha kalita. 14. But he did not say as to whether there was any blood stain on any of these seized materials. Replying to pointed question at the time of cross examination, he emphatically stated that accused had cordial relation with his father. He found the accused weeping when police went there. He could not say who had killed Hangsha kalita. 14. PW-11, Sri Roman Khataniar stated that police did not allow him to go close to the dead body when he had arrived at the place of occurrence. He found the accused and his step-mother sitting near the dead body. He heard that the dead body was found out by digging. Police took his signature on Exhibit-2 seizure list. In cross examination he disclosed that police did not record his statement. He did not witness killing of Hangsha Kalita. He also emphasized that there was cordial relationship between the accused and his father. Both the accused and his step-mother were weeping after the dead body was recovered. 15. PW-12, Dr. Bhupesh Choudhury is the Senior Medical & Health Officer of Howly C.H.C.. He held the post mortem examination over the dead body of Hangsha Kalita. He found a cut injury on the backside of the neck of the deceased below the level of thyroid cartilage. It was 8cm x 2cm x 2cm causing injuries to the carotid vessels. He opined that death was due to shock and hemorrhage as a result of the injury sustained. Exhibit-4 is the post mortem report wherein his signature is Exhibit-4(1). Accused declined to cross examine this witness. 16. PW-13, Sri Mathura Barkakati is the I.O.. He deposed to have visited the place of occurrence, spotted the blood stains on the courtyard and recovered the dead body which was buried. Ejahar was lodged by accused himself which is Exhibit-5. He came to the place of occurrence at around 11 am. Exhibit-6 is the sketch map. Accused confessed before him on 22.9.2002 stating that he abhorred his father and so he killed him. The dao and hoe were seized as per his confessional statement on being shown by the accused. Exhibit-7 is the extra judicial confession. In course of cross examination, he disclosed that he had made request to the court for recording confessional statement of the accused. But he could not say as to whether any confessional statement was recorded by the magistrate. Exhibit-7 is the extra judicial confession. In course of cross examination, he disclosed that he had made request to the court for recording confessional statement of the accused. But he could not say as to whether any confessional statement was recorded by the magistrate. At the time of giving extra judicial confession, Akshay Kalita, Roben Roy, Dhireshwar Barua and Romen Khataniar were present. He did not produce the seized material to the court. Hiren Sharma resides to the adjacent to the north west to the place of occurrence whereas Atul Kalita resides at the west of Akshay Kalita. But their statements were not recorded. He arrested the accused three days after the incident on 22.9.2002 and produced him before the court on the following day at about 11 am. He admitted that there is no mention of time in Exhibit-7 extra judicial confession. 17. One Kanak Nath, S.I. of police was examined as CW who deposed that he was entrusted to execute P/A & NBW against the accused in connection with Sessions Case No. 63/03. Exhibit-1 is the proclamation attachment and Exhibit-2 is the proclamation. Exhibit-3 is his report. It appears that this witness was S.I. of Pathshala Police outpost and was entrusted only after the case was committed to Sessions for enforcing attendance of the accused who was no longer a resident of the village. The CW went to Jyotinagar Pathshala and did not find the accused there. 18. The learned Sessions Judge examined the accused under Section 313 Cr.P.C when the accused did not furnish any new fact but asserted that he was innocent. Upon consideration of these materials, the learned Sessions by his judgment and order dated 21.11.2013 convicted the accused under Section 302/201 IPC and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs.10,000/- in default, to suffer S.I for another period of six months. It is this judgment which has been called in question in the present appeal. 19. We have heard Mr. Zahangir Hussain, learned Amicus Curiae for the appellant and Ms. S Jahan, learned Additional Public Prosecutor. We have also perused the evidence on record. 20. There is no eye witness in this case. The learned Sessions Judge relied on the evidence of PW-1 and PW-2 to observe that they were present with the accused on the previous night at the place of carom competition. S Jahan, learned Additional Public Prosecutor. We have also perused the evidence on record. 20. There is no eye witness in this case. The learned Sessions Judge relied on the evidence of PW-1 and PW-2 to observe that they were present with the accused on the previous night at the place of carom competition. Accused left the place for going to his house but later on came to the house of PW-1 and asked for sharing bed with him as his parents were not at home. According to learned Sessions Judge, PW-13 disclosed bitter relationship between the accused and his father. There was recovery of weapon used in the crime at the instance of the accused. The defence did not deny the recovery of the seized articles and thus according to the learned Sessions Judge, the chain of circumstances was complete. Having gone through the deposition of PWs-1, 2 and 13 as referred to above, we have failed to find out any circumstances whatsoever so as to connect the accused with the allegation of murder. PWs-1, 2 and the accused were present at the place of carom competition on the previous night. According to PW-1, both of them left the place of competition at the same time and so the accused was supposed to reach his house within about 10 minutes but he came back to the house of PW-1 after about half an hour and asked for shelter at night as his doors were closed and parents were not at home. Prosecution wanted to establish that within this period, the accused might have committed the murder of his father and buried the dead body. If 10 minutes time was required for going to the house of the accused from the place of carom competition an equal amount of time shall also be required for coming back and so even if the suspicion of the prosecution is accepted for the time being, there was hardly an extra 10 minutes in the hand of the accused. This time cannot be sufficient to commit murder and to bury the dead body by digging a pit. Having found his doors closed, he might have called his parents or waited for sometime expecting that the door would be opened. Even in that event, this extra 10 minutes would have been spent. This time cannot be sufficient to commit murder and to bury the dead body by digging a pit. Having found his doors closed, he might have called his parents or waited for sometime expecting that the door would be opened. Even in that event, this extra 10 minutes would have been spent. It is established law that even strongest suspicion cannot take place of proof and the prosecution is duty bound to prove the commission of offence by the accused beyond reasonable doubt. In the instant case, except for a delay of 10 minutes, there is no other basis for such suspicion. All the witnesses except PW-13 have categorically stated that there was no quarrel between the father and the son. Some of the witnesses emphasized that there was good relationship between them. The deposition of PW-13 about bad blood between the father and the son is also based on extra judicial confession allegedly made by the accused before police which is not admissible in evidence. Prosecution failed to explain as to why there is no judicial confession. The PW-13 indicated in course of cross examination that he had made a prayer for recording confession by Magistrate but he was not aware as to what happened thereafter. This only goes to show that the accused never volunteered to make any confession and Exhibit-7 is the outcome of torture by police while he was in custody. PW-13 has proved himself to be unreliable on yet another point. He claimed that seizure of some articles including weapon was made on 22.9.2002 at the lead of the accused but the witnesses of Exhibit-2 and 3 stated that dao, apparels and hoe were recovered from the house of the deceased but they did not say that accused led to the discovery. They were present on 19.9.2002 at the place of occurrence which means that the recovery was not on the basis of so-called confessional statement before police. The witnesses have nowhere stated that the seized dao or the wearing apparels had any blood stain. PW-13 did not claim to have found blood on these seized items. Even if there was any, admittedly the same were not sent to FSL for ascertaining as to whether the stain was of human blood and if so whether the blood group thereof tallied with that of the deceased. PW-13 did not claim to have found blood on these seized items. Even if there was any, admittedly the same were not sent to FSL for ascertaining as to whether the stain was of human blood and if so whether the blood group thereof tallied with that of the deceased. Thus there is no evidence whatsoever to hold the view that the accused had committed murder of his father. The impugned judgment of conviction, therefore, cannot be sustained. It is accordingly set aside and the accused is acquitted from the charges. Issue release warrant for release of the accused forthwith provided he is not required in connection with any other case. 21. Appeal stands allowed. Send down the records.