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2017 DIGILAW 68 (GAU)

Pranab Kalita v. State of Assam

2017-01-17

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT AND ORDER : 1. The sole appellant Pranab Kalita has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/- with default stipulation. He has further been convicted under Section 201 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for 1 (one) year and fine of Rs.1,000/- with default stipulation. Both the sentences have been ordered to run concurrently. 2. The victim of the incident was Kundan Das, a minor boy aged about 10 years. 3. According to the prosecution case, on 13/7/2010 around 3:30 p.m. Kundan was playing near his house at Dharapur (Konchpara). The house of Bipin Kalita was adjacent to the house of Kundan. The appellant Pranab Kalita is son of Bipin Kalita. When Kundan did not return home and was found missing, a search was launched for him. Many villagers including the family members of Bipin Kalita, namely, Anil, Baroda, Ratna and the appellant also joined the family members of Kundan in the search. At that time, some caller made a call in the landline phone no. 2843047 of one Khagen Chandra Kalita-a neighbour of Kundan and claimed that Kundan had been kidnapped and he would make another call on the next day again in morning hours. Being armed and panicked, father Karuna Kanta Das (PW-1) of Kundan made the First Information Report Exhibit-1 in police station Azara of District Kamrup. 4. Sri Prabin Bora (PW-15) the then second officer at Azara Police station immediately went to the house of Khagen in whose phone the call was made and questioned his wife Mamoni Kalita (PW-2) and searched for the phone from where the call was made. He traced it to a P.C.O of Hitesh Kalita (PW-4) at Dharapur Chariali. He then met Hitesh and enquired as to whether some call was made to the phone number and checked the call details list of the P.C.O. when it was found that some call was made. Then Hitesh was asked to identify the person making the call. But since, he was not present on that particular date and his employee Hemanta Medhi (PW-11) was there, so Hemanta was called and he told police that the appellant and one Sonmani made the call that day. Then Hitesh was asked to identify the person making the call. But since, he was not present on that particular date and his employee Hemanta Medhi (PW-11) was there, so Hemanta was called and he told police that the appellant and one Sonmani made the call that day. Mrinal Kalita (PW-3) was also present in the said P.C.O. on that day and he also met and saw both the appellant and Sonmani making the call from a small room attached to the P.C.O. but he could not hear the talks. Hemanta and Hitesh then led the police to the appellant and Sonmani and on being identified, police interrogated them. During interrogation, both of them confessed of committing the murder of Kundan before the police as well as other villagers. At that time, Sonmani was found to be hiding in the house of his uncle Anil Kalita. Police seized the reel of the call details list vide Exhibit-3 in presence of Hitesh (PW-4) and his nephew Mrinal (PW-3). 5. Appellant and Sonmani confessed that both of them had murdered Kundan inside the house of the appellant while he was playing cricket and kept the dead body for the night inside the house of Pranab under a bed and on the next day, they kept the body near the sty at the backside of their house and on the second day they kept the body at the backyard of their house in a pond of Bhadreswar Kalita covering it under water hyacinth. They led the Magistrate Sri Tankeswar Das (PW-13) to that place and the dead body was found to had been kept in a gunny bag and a wire was found to be wrapped around the neck of Kundan. Tankeswar (PW-13) then conducted inquest over the dead body of Kundan in presence of Karuna (PW-1), Dhiren Chandra Das (PW-5), Amiya Baishya (PW-6), Dilip Das (PW-8) and Gauri Das (PW-9). He submitted his report vide Exhibit-2. 6. Prabin (PW-15) also prepared the sketch map and seized the wire and the gunny bag vide Exhibit-4 in presence of Giridhar Baishya (PW-10). The body of Kundan was sent for Post-mortem examination and witnesses were sent for recording statements under section 164 of the Code of Criminal Procedure. 7. Dr. He submitted his report vide Exhibit-2. 6. Prabin (PW-15) also prepared the sketch map and seized the wire and the gunny bag vide Exhibit-4 in presence of Giridhar Baishya (PW-10). The body of Kundan was sent for Post-mortem examination and witnesses were sent for recording statements under section 164 of the Code of Criminal Procedure. 7. Dr. Dipak Das (PW-14) conducted post-mortem examination over the dead body of Kundan and found one continuous ligature mark on the neck at the level of upper border of thyroid cartilage (ligature materials being metallic wire found on the neck with a twist of the wire in front of the neck) size of ligature mark 28 cm x 8 cm x 1 cm depth. On dissection, it was found that the tissues of the neck were diffusedly confused and Thyroid cartilage and hyoid bones being fractured. Vide his Post-mortem examination report Exhibit-5 he opined that the cause of death was due to asphyxia resulting from ante-mortem manual strangulation which was homicidal in nature. 8. On completion of investigation Prabin Bora (PW-15) submitted chargesheet-Exhibit-6 under section 365(A)/302/201/34 of Indian Penal Code against the appellant and his father Bipin, mother Ratna as the appellant told them after committing the crime and they remained silent in spite of having knowledge, Baroda mother of Sonmani as she was also told about the incident by Sonmani and his uncle Anil for hiding him in his house having knowledge of his involvements. Charge-sheet was also filed against Sonmani, Mitul Kalita and Hiran Kalita. But they were sent to Juvenile Board being found as juveniles-in-conflict with law. 9. During trial, all the accused abjured their guilt and pleaded innocence. But the trial court relying upon the evidence adduced by the prosecution, convicted and sentenced the appellant as aforesaid and acquitted Bipin, Anil, Baroda and Ratna of the charges. 10. After hearing the learned counsel for the appellant and on perusing the record, we do not find sufficient merit in the instant appeal. This we say because the prosecution has been able to prove the case against the appellant beyond reasonable doubt and the chain of circumstances is complete to point the finger of guilt to the appellant alone. Besides, the circumstances themselves have also been proved beyond reasonable doubt. 11. This we say because the prosecution has been able to prove the case against the appellant beyond reasonable doubt and the chain of circumstances is complete to point the finger of guilt to the appellant alone. Besides, the circumstances themselves have also been proved beyond reasonable doubt. 11. It is the evidence of Karuna (PW-1) and Mamoni (PW-2) that a call was made immediately after the disappearance of Kundan in the landline phone of Khagen and Mamoni deposed that she answered the call. The unidentified caller told her that Kundan had been kidnapped and he would call later again. This call was made from the P.C.O. of Hitesh Kalita on 13/7/2010. The call details Exhibit-3 and material Exhibit-1 have proved that fact. 12. Again it is the evidence of Mrinal (PW-3) that he met both the appellant and Sonmani on that date and time when he was sitting in his uncle Hitesh Kalita’s P.C.O. He has categorically deposed that he saw both the appellant and Sonmani coming to the P.C.O and making a phone call from a small room adjacent to it. This piece of evidence is corroborated by Hemanta (PW-11). Hemanta deposed that both the appellant and Sonmani came to the P.C.O. on 13/7/2010 and made a cal. He heard them saying that they had the boy and they would call on the following day. Although he was declared hostile by the prosecution, this piece of evidence cannot be thrown away entirely for that reason only as it is found to be reliable and corroborated by other evidence. Even during his cross-examination by the defense, he maintained the same and thus has attracted the confidence of the court. On the other hand, Hitesh (PW-4) has also testified that Hemanta was there in the P.C.O. on the date and time when the call was made and Hemanta also identified the appellant being one of the two who had made the call. He also led the police to the appellant and Hitesh (PW-4) has testified to that effect. The evidence of Hitesh, Mrinal and Hemanta are reliable and corroborative of one another on material particulars to prove that the appellant was one of the two persons who made the call from the P.C.O. to intimate about the kidnapping of Kundan. 13. He also led the police to the appellant and Hitesh (PW-4) has testified to that effect. The evidence of Hitesh, Mrinal and Hemanta are reliable and corroborative of one another on material particulars to prove that the appellant was one of the two persons who made the call from the P.C.O. to intimate about the kidnapping of Kundan. 13. It is the evidence of Karuna (PW-1), Dhiren (PW-5), Amiya (PW-6), Gauri (PW-9), Giridhar (W-10) and Tankeswar (PW-13) that the appellant led them to the pond where the dead body of Kundan was concealed and police recovered the same. This is a conduct of the appellant which is admissible in evidence under section 8 of The Evidence Act. 14. In A.N. Venkatesh vs. State of Karnataka, reported in (2005) 7 SCC 714 , when a minor boy was kidnapped and the appellants made phone call from public call booths, tracing which, the police apprehended the appellants and on their interrogation, they disclosed the place where the dead body was kept and later on the dead body was exhumed from the same place, it was held by the Hon’ble Supreme Court that “By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand vs. State (Delhi Administration), (1979) 3 SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400 . Even if we hold that the disclosure statement made by the accused-appellants (Exts.P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. Even if we hold that the disclosure statement made by the accused-appellants (Exts.P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the investigating officer and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused.” 15. In view of the aforesaid, it can be safely held that the prosecution has been able to prove the circumstances against the appellant beyond reasonable doubt. It has been proved that the appellant made a phone call from the P.C.O. of Hitesh immediately after the kidnapping of Kundan and he was identified. He also led the police and the villagers to the place where the dead body was kept concealed and the same was thus recovered. Therefore, the chain of circumstances has been complete and the circumstances have been also proved. Therefore, we have no hesitation but to hold that the appellant was one of the perpetrators of the crime. 16. We, therefore, having regard to the above find ourselves in complete agreement with the finding of the trial court that appellant was one of the perpetrators of the crime and accordingly, the appeal is dismissed.