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2016 DIGILAW 982 (GAU)

Bhadreswar Das v. State of Assam

2016-11-07

AJIT SINGH, N.CHAUDHURY

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JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Bhadreswar Das has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5000/- with default stipulation. He has also been convicted under Section 201 of the Indian Penal Code and sentenced to rigorous imprisonment for 4 years and fine of Rs.4000/- with default stipulation. The jail sentences have been ordered to run concurrently. The trial court has, however, acquitted co-accused Tapeswar Das of the same charges. 2. The victims of the incident were Nagen Kalita, aged 34 years and Golak Kalita, aged 37 years. 3. According to the prosecution case, on the night of 21.3.2000, Nagen and Golak had dinner in the house of Arun Kalita (PW-2). The dinner was served by his mother because at that time he was not at home. Arun Kalita is also cousin of Nagen. After dinner, around 9 p.m., both Nagen and Golak walked towards their home through forest. But on way, they were intercepted by some persons including the appellant and thereafter hacked to death. Since Nagen and Golak did not reach home, their family members launched a search for them. On the following morning, dead bodies of Nagen and Golak were found floating in the water of nearby river. Arun Kalita then made the ejahar exhibit 1 at Tamulpur Police Station and named 11 persons therein on suspicion. Investigating Officer- Sunil Kumar Das (PW-14) along with the staff, soon reached the place of occurrence and seized various articles including two axes. The seizure memo of axes is exhibit 2. Dr. Prabin Chandra Choudhury (PW-11) conducted the post mortem examination on the bodies of Nagen and Golak and found multiple injuries on them. He in his post mortem examination reports exhibit 6 and 7 has opined that both died due to multiple injuries which were ante mortem in nature. Sunil Kumar Das after investigation filed charge sheet against five persons including the appellant for their prosecution under Sections 302 and 201 of the Indian Penal Code. But the trial court framed charges only against Tapeswar Das, Ajay Deka and the appellant. 4. During trial, all the three accused persons abjured their guilt and pleaded false implication. Also before the trial could be completed, Ajay Deka absconded. But the trial court framed charges only against Tapeswar Das, Ajay Deka and the appellant. 4. During trial, all the three accused persons abjured their guilt and pleaded false implication. Also before the trial could be completed, Ajay Deka absconded. The trial court however mainly relying upon the evidence of Jogeswar Kalita (PW-10) convicted and sentenced the appellant as aforesaid but acquitted Tapeswar Das of the charges. It is in this background, the aggrieved appellant has filed the present appeal. 5. It is argued on behalf of the appellant that the trial court committed an illegality in believing the evidence of Jogeswar Kalita for convicting him. The learned Additional Public Prosecutor, on the other hand, defended the conviction and sentence of the appellant. 6. Witnesses – Daibaki Kalita (PW-1), Arun Kalita (PW-2), Prasanna Ram Kalita (PW-3), Babul Kalita (PW-4), Gautam Kalita (PW-5) and Keshab Kalita (PW-6) are closely related to victims Nagen and Golak. These witnesses do not claim to have seen the incident. They are, therefore, not eye witnesses. They have mainly deposed how after difficult search, they could find the injured dead bodies of Nagen and Golak floating in the river water. They have however attributed suspicion against some persons including the appellant due to alleged harassment of their family members by them. But it is well settled that suspicion howsoever strong cannot be the basis for convicting an accused. 7. Biren Das (PW-7) was Village Headman during the relevant period. He has not stated anything against the appellant. He in his evidence has admitted that two axes were seized by the police from the place of occurrence vide exhibit 2. Similar is the evidence of Nagen Das (PW-9). He too has testified that axes were seized from the place of occurrence. Thus, apparently no axe was seized from the possession of appellant. 8. Witnesses-Ananta Boro (PW-8) and Prakash Patowary (PW-12) have testified that during interrogation by the police at the Police Station co-accused persons - Tapeswar Das and Ajay Deka had made extra judicial confession of committing the crime. Since such a confession is not admissible, the trial court has acquitted Tapeswar Das. (Ajay Deka is absconding). Nareswar Deka (PW-13) was also a witness of extra judicial confession, but he too did not support the prosecution and turned hostile. 9. Jogeswar Kalita (PW-10) is the sole eye witness. Since such a confession is not admissible, the trial court has acquitted Tapeswar Das. (Ajay Deka is absconding). Nareswar Deka (PW-13) was also a witness of extra judicial confession, but he too did not support the prosecution and turned hostile. 9. Jogeswar Kalita (PW-10) is the sole eye witness. He has testified that on the night of incident, he had gone to attend ‘Naam Party’ at Jokmari, but the performers did not come. He, therefore, lost interest and was returning home. On way, there was jungle on both the sides. He first saw two persons (victims) going by the same road and then five persons coming out from the jungle. The five persons who came out from the jungle intercepted the two persons, who screamed. According to the evidence of Jogeswar Kalita, he out of fear hid himself in the nearby jungle, but saw five persons assaulting and dragging two persons separately. This witness has further testified that out of five persons, he could identify the appellant because one of his sons is married to a girl who lived in the neighbourhood of appellant and they were having visiting terms. According to the evidence of Jogeswar Kalita, he then left for his house and on the following morning, came to know that Nagen and Golak were killed and their dead bodies were thrown in the river. However, in the cross examination, Jogeswar Kalita has clearly admitted that on the following morning, he himself along with the public saw the dead bodies. He has also admitted that he even saw the Village Headman and the police questioning the public and yet he did not tell the police or the public anything about the incident. He further admitted that he narrated the incident to Arun Kalita after three days, who took him to the Police Station. The record reveals that police case diary statement of Jogeswar Kalita was recorded on 27.3.2000 i.e. after five days from the date of incident. According to his own admission, he saw the incident in the night and on the following morning, he also saw the dead bodies and police questioning the public but he did not disclose even a word about the incident either to police or the public. According to his own admission, he saw the incident in the night and on the following morning, he also saw the dead bodies and police questioning the public but he did not disclose even a word about the incident either to police or the public. No reason or justification has been given by him for keeping silent for five days despite he being present at the time when police was questioning the public. We find this conduct of Jogeswar Kalita wholly unnatural. He does not say that he was threatened by the accused persons for naming them. If after five days of the incident, he could gather courage to disclose the incident first to Arun Kalita and then to the police, he could have very well gathered courage to disclose it on the following day. We are, therefore, of the view that had he actually seen the incident which took place in the jungle and that too in the night he would have surely disclosed everything either to police or public on the following morning. For this reason we find his evidence utterly unsafe to convict the appellant. It is also seen that Arun Kalita in his ejahar had named as many as 15 persons as suspects but he did not name the appellant. Arun Kalita has nowhere stated that he was informed about the incident by Jogeswar Kalita. 10. We accordingly set aside the impugned conviction and sentences of the appellant and acquit him of the charges. If he is in jail, he be set at liberty forthwith. The appeal is allowed.