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2017 DIGILAW 70 (GAU)

Sudesh Nayak v. State of Assam

2017-01-17

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT AND ORDER : 1. The sole appellant Sudesh Nayak 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. 2. The victim of the incident was appellant’s wife Seema Nayak. She was 35 years at the time of her death. 3. According to the prosecution case, in the morning of 15.1.2009, just next day of the Magh Bihu, a body of a female was found lying in a dry ditch of about 5/7 feet depth in a forest near the house of the appellant at No. 1 Danga Line of Borchapori Tea Garden. The local people including Parameswar Rajput (PW-4), Sudarshan Deb Majhi (PW-5), Pushpa Nayak (PW-7) and Aparna Dhar (PW-8) residing in the neighborhood of the appellant’s family identified the dead body as that of Seema Nayak (wife of appellant). The fact of discovery of the dead body spread like a fire and police was informed. Police intimated Suresh Nayak (PW-1)-the brother of the appellant and he made the First Information Report (exhibit-4) before Police Station Bokakhat. Parameswar (PW-4) wrote the same for him and also put his signature thereon as a scribe. In the First Information Report allegation was made against the appellant that he quarreled with his wife on the previous night and after committing her murder threw the body in a ditch by the side of public road near the forest. It was also alleged that after committing the murder of Seema, the appellant carried her dead body on a push-cart which he borrowed from Pranesh Adhikari (PW-9) purportedly for the purpose of carrying fire woods from the nearby jungle. 4. In the meantime, Fariruddin Ahmed (PW-11) the then attached officer at the Bokakhat Police Station on receipt of the First Information Report as well as getting information about the discovery of dead body, immediately rushed to the place of occurrence, drew sketch map (exhibit-6), got the inquest of the dead body done in presence of Mangal Nayak (PW-2) and Parameswar (PW-4) by Executive magistrate Jitu Kumar Das who submitted his report vide exhibit-1 and sent the dead body to Golaghat Hospital for post-mortem examination. Near the place of occurrence he found a push cart which belonged to Pranesh (PW-9). He therefore seized the push-cart vide exhibit-2 seizure list in presence of Mangal Nayak (PW-2) and Parameswar (PW-4). Near the place of occurrence he found a push cart which belonged to Pranesh (PW-9). He therefore seized the push-cart vide exhibit-2 seizure list in presence of Mangal Nayak (PW-2) and Parameswar (PW-4). He also recorded the statements of witnesses, arrested the appellant and on his confession of guilt sent him to the Judicial Magistrate for recording confessional statement by way of forwarding letter Exhibit-8. 5. Dr. Mohan Saikia (PW-3) conducted the post-mortem examination on the body of Seema and found one injury with hemorrhage in the left eye, one sharp cut injury of size 1.5 cm x 1 cm over left buttock, swelling over both wrist joints, scalp injuries on left size, membrane injured and brain and spinal cord injured with intracranial hemorrhage. According to his opinion, Exhibit-3 the death of Seema was caused due to shock and hemorrhage resulting from the injuries which all were ante-mortem in nature. 6. On completion of investigation Fariruddin Ahmed (PW-11) submitted charge-sheet Exhibit-9 against the appellant under section 302 of Indian Penal Code. 7. During trial, the appellant abjured his guilt and pleaded innocence. But the trial court relying upon the evidence adduced by the prosecution, convicted and sentenced him as aforesaid. 8. After hearing the learned counsel for the parties and perusing the record, we find sufficient merit in the instant appeal. This we say because there is missing link amongst the circumstances and the chain of circumstances is not complete to point the finger of guilt to the appellant alone. Besides, the circumstances themselves have not been proved beyond reasonable doubt. 9. The following three circumstances have arisen in the instant case – (i) discovery of the dead body of appellant’s wife near his house; (ii) discovery of the push cart which the appellant borrowed from Pranesh and (iii) the fact of quarrel between the appellant and his wife on the previous night of discovery of her dead body. Although, it is alleged in the First Information Report that the appellant had quarreled with his wife on the previous night, the witnesses have not proved this fact. The brother of the appellant Suresh (PW-1) has clearly deposed that he came to know about the death of his sister-in-law on the next morning only when he was intimated by the police regarding the discovery of her dead body and prior to that he had no information. The brother of the appellant Suresh (PW-1) has clearly deposed that he came to know about the death of his sister-in-law on the next morning only when he was intimated by the police regarding the discovery of her dead body and prior to that he had no information. Thereafter he made the First Information Report. But the scribe-Parameswar (PW-4) has admitted in his cross-examination that he wrote the First Information Report as per version of the police. This itself, creates a doubt regarding allegation of quarrel between the appellant and his wife and then murdering her and throwing her body in the forest as stated in the First Information Report. 10. Although, Sudershan (PW-5) testified that he saw the dead body of Seema in the morning and she used to stay with the appellant, but during his cross-examination, he admitted that he could not say as to whether she was in the house of appellant on the night of occurrence or not. Aparna (PW-8) however deposed that she heard about some quarrel, but she admitted in her cross-examination that she was in her maternal uncle’s house situated about 1½ k.m. away from her house and thus could not say surely as to whether the quarrel took place between the appellant and his wife or amongst some other persons. She has also not clarified as to from whom she got the information regarding the so called quarrel. Therefore, the fact of alleged quarrel has not been proved. Even, there is no evidence to establish that Seema was in the house of appellant on the night of incident. Hence, her presence in any other place except the house of appellant cannot be ruled out too. 11. The body of Seema was discovered not in the house of the appellant but near the forest and as such he was not expected to explain the circumstances under which she died. There is every possibility of the victim being murdered outside the house of appellant by any other person. Even the police did not find any incriminating material in the house of appellant to support the prosecution case that she was murdered there and then carried on a push-cart to the forest. There is every possibility of the victim being murdered outside the house of appellant by any other person. Even the police did not find any incriminating material in the house of appellant to support the prosecution case that she was murdered there and then carried on a push-cart to the forest. Also the owner of push-cart Pranesh (PW-9) has admitted during his cross-examination that appellant used to borrow the cart on earlier occasions also for collecting and carrying woods from the jungle and as such mere seizure of the push-cart from the vicinity of the place of occurrence does not link the appellant to the offence. The fact of borrowing the push-cart by the appellant for carrying fire woods only and not for disposal of the dead body cannot be ruled out too, in its entirety. Besides, the evidence of Pranesh (PW-9) that the appellant borrowed the push-cart just before the incident is also without any corroboration. Mere discovery of the dead body of Seema near the house of appellant and the push-cart lying near it is not sufficient to point the finger of guilt to the appellant alone. If the appellant wanted to conceal the body in a pit by carrying it on a push-cart from his house, he would not have left the push-cart there. Also no one has seen the appellant pushing the cart at or near the place from where the body was discovered. 12. Dr. Mohan Saikia (PW-3) during his cross-examination admitted that he did not mention the nature of object by which the cut on the buttock of the victim could be made. Foriruddin (PW-11) also could not seize any such offensive object from the house of the appellant and there is no confessional statement recorded by the Magistrate also available in the records although the appellant was sent for recording the same. Mere statement that the appellant confessed his guilt before Fariruddin is not admissible in evidence as the same was allegedly made before a police officer under his custody. 13. For these reasons, we are of the considered opinion that the conviction and sentence of the appellant is not proper and hence liable to be interfered with. There is hardly any evidence against the appellant to prove that he alone was the perpetrator of the crime. It is well settled that suspicion however grave cannot form the basis of conviction. For these reasons, we are of the considered opinion that the conviction and sentence of the appellant is not proper and hence liable to be interfered with. There is hardly any evidence against the appellant to prove that he alone was the perpetrator of the crime. It is well settled that suspicion however grave cannot form the basis of conviction. As such, considering the missing link in the circumstances, the chain being not complete and the circumstances themselves not being proved beyond reasonable doubt, we are of the view that the appellant is entitled for the benefit of doubt. 14. We, therefore, having regard to the above find ourselves in complete disagreement with the finding of the trial court that appellant alone was the perpetrator of the crime and accordingly, the appeal is allowed. The appellant is acquitted of the charge and he be released forthwith, if not wanted in any other case.