Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 848 (GAU)

Subhash Debnath v. State of Assam

2016-09-08

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT & ORDER : N. Chaudhury, J. This appeal is directed against the judgment and order of conviction dated 21.04.2015 passed by learned Additional Sessions Judge (FTC), Nagaon, in Sessions Case No. 287(N)/2010 under Section 302 of the Indian Penal Code sentencing the appellant to suffer rigorous imprisonment for life and to pay a fine of Rs.5000/-, in default, to undergo rigorous imprisonment for three months more. 2. The appellant Subhash Debnath and his son Subrata Debnath were tried in Sessions Case No. 287(N)/2010 for committing murder of one Sujit Debnath of Nagaon. The prosecution story is that one Niranjan Debnath lodged an ejahar on 10.08.2007 before the Officer-in-charge, Nagaon Police Station, informing that on the previous night at about 10.00 O’clock his son had gone to the house of the accused persons where he was assaulted and injured. His son came and informed him about the injury and then again went out. On the following morning at 5.30 a.m. his dead body was found lying in front of his father’s shop with face downwards. Police registered Nagaon Police Station Case No.607/2007 under Section 302/34 of the Indian Penal Code and held investigation. Inquest was done by an Executive Magistrate at the place of occurrence. The Investigating Officer recorded statements of witnesses and after getting the post mortem report submitted charge-sheet against Subhash Debnath and his son Subrata Debnath in G.R. Case No.1350/2007 of the Court of learned Judicial Magistrate (2nd Class) at Nagaon who committed the case to Sessions on 21.09.2010 and thereupon aforesaid Sessions Case No.287(N)/2010 was registered. Charges were framed against the two accused persons under Sections 302, 201 read with Section 34 of the Indian Penal Code. Both the accused persons pleaded not guilty and claimed to be tried. 3. In course of trial prosecution examined ten witnesses including the two Investigating Officers and one Medical Officer. Having considered the evidence led by the prosecution and on perusal of the statement of the accused under Section 313 of the Code of Criminal Procedure, the learned Additional Sessions Judge passed the impugned judgment on 21.04.2015 acquitting accused Subrata Debnath of all the charges but convicting accused Subhash Debnath under Section 302 of the Indian Penal Code and sentenced him as aforesaid. This judgment and order has been called in question in the present appeal. 4. We have heard Mr. This judgment and order has been called in question in the present appeal. 4. We have heard Mr. B.K. Mahajan, learned counsel for the appellant and Ms. Shamima Jahan, learned Additional Public Prosecutor, Assam for the respondents. 5. The learned Sessions Judge in his impugned judgment has relied on circumstantial evidence to hold the appellant guilty. This is because PW 1 and PW 5 stated in the witness box that on the previous night of occurrence at around 9/10 O’clock, deceased Sujit Debnath came to house and informed them that when he had gone to the house of the accused persons asking for his wage against the work done by him as a labourer in their tent house, they not only refused to give any money but also assaulted him and retained his bicycle, cap and spectacles. He claimed to have been accompanied by one Suman Debnath, who was examined as PW 6. This PW 6 deposed on oath that he had accompanied the deceased to the house of the accused persons at 9/10 O’clock at night. He stated that the appellant abused the deceased at that time and retained the bicycle and then he came back. PWs 1 and 5 are the parents of the deceased before whom the deceased had allegedly disclosed about his assault by the accused persons. He expressed his anger and declared that he would teach them a lesson. Thereafter he went out and so these witnesses doubted that he might have gone to the house of the accused persons demanding money etc. PW 7, Tripti Das, deposed that she had gone to Nagaon Police Station at around 10.45 p.m. in connection with a complaint against some two other persons when she found the deceased Sujit there. Thus, according to the prosecution story, the deceased had gone to the house of accused persons on the previous night at 9/10 p.m. asking for his money but he was assaulted by the accused persons and no money was given. They retained his bicycle, cap and spectacles. PWs 1 and 5 further claimed that this bicycle, cap and the spectacles were found on the following morning at 5.30 a.m. near the dead body of Sujit Debnath which was found in front of their shop. They retained his bicycle, cap and spectacles. PWs 1 and 5 further claimed that this bicycle, cap and the spectacles were found on the following morning at 5.30 a.m. near the dead body of Sujit Debnath which was found in front of their shop. Disclosure of the cycle, the cap and the spectacles at the place of recovery of the dead body raised suspicion in the minds of PWs 1 and 5 that the accused persons might have killed their son. The learned Sessions Judge proceeded on these circumstances. Thus, the circumstances relied on by the learned Sessions Judge are as follows:- (i) Sujit Debnath went to the house of the accused persons at 9/10 p.m. asking for his money in presence of PW 6, Suman Debnath. (ii) Accused persons abused Sujit Debnath and retained his bicycle. (iii) Sujit Debnath reported his parents at around 10 O’clock at night that he was assaulted by the accused persons when he had gone there for demanding his money. The accused persons also retained the bicycle, cap and spectacles. (iv) On the following morning at 5.30 a.m. the dead body of Sujit Debnath was found with his face downwards in front of the shop of his parents. There was bicycle, cap and his spectacles near the dead body. 6. It is to be seen as to whether the aforesaid circumstances are duly established and as to whether they form a chain of circumstances unfailingly pointing towards the only conclusion that the accused persons committed murder of Sujit Debnath. Although PWs 1 and 5 claimed that the accused retained the bicycle, cap and spectacles of Sujit Debnath on the previous night and the same were found near the dead body on the following morning in front of the shop but these articles were neither mentioned in the inquest report (Exhibit-2) nor were they seized by police. The inquest was made by Executive Magistrate at the place of recovery of the dead body. Had the bicycle, the cap and the spectacles been found there the same would have been mentioned in the inquest report. The police also would have seized the same but prosecution is silent in this regard. The inquest was made by Executive Magistrate at the place of recovery of the dead body. Had the bicycle, the cap and the spectacles been found there the same would have been mentioned in the inquest report. The police also would have seized the same but prosecution is silent in this regard. Strangely enough, even in their statements under Section 161 of the Code of Criminal Procedure, PWs 1 and 5 did not make any statement before police that they had noticed the bicycle, the cap and the spectacles near the dead body at 5.30 a.m. on 10.08.2007 in front of the shop. This gives rise to a doubt that such version was subsequently developed in course of trial. The circumstance as to discovery of cycle, cap and spectacles, therefore, as projected by the prosecution, has not been proved. Once these articles are claimed to have been retained by the accused persons and are not found near the dead body as claimed by the prosecution, in that event, the only link to connect the accused persons with the dead body of Sujit Debnath disappears. Even if we accept for the time being that Sujit Debnath was assaulted by the accused persons on the previous night but there was no fatal injury which could have caused his death. He returned from there to his house and then even went to the Police Station for lodging a complaint which ultimately was not accepted by the police. The assault, if there be any, by the accused persons at 9/10 O’clock in the night of 09.08.2007, therefore, cannot be the cause of death of Sujit Debnath. After the dead body was recovered there were marks of violence on his face which apparently were not the result of assault on the previous night. Prosecution has miserably failed to explain as to how the accused persons were connected with the subsequent injuries found on the person of Sujit Debnath. Even it is not proved beyond reasonable doubt that Sujit Debnath had visited the house of accused persons again. Prosecution has miserably failed to explain as to how the accused persons were connected with the subsequent injuries found on the person of Sujit Debnath. Even it is not proved beyond reasonable doubt that Sujit Debnath had visited the house of accused persons again. Nobody had seen the accused persons after 10 O’clock at night near the place of recovery or along with the deceased and so virtually there is no evidence on record to hold the view that Sujit Debnath subsequently went to the house of the accused persons and that he was beaten up again or that he was killed by the accused persons and then his body was left in front of the shop of his father. In the absence of any material whatsoever, merely because there is suspicion of the informant against the accused persons, it cannot be held that the accused persons committed murder of Sujit Debnath. The prosecution in the present case has virtually failed to find out the cause of death of Sujit Debnath and for such failure on the part of the prosecution benefit must go in favour of the accused. 7. Accordingly, the appeal stands allowed. The impugned judgment and order is hereby set aside. Accused Subhash Debnath is acquitted of the charge under Section 302 of the Indian Penal Code. He be released from Jail forthwith unless required in connection with any other case. Send down the records.