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2018 DIGILAW 1075 (GAU)

Raju Kujur v. State of Assam

2018-07-23

M.R.PATHAK, PRASANTA KUMAR DEKA

body2018
JUDGMENT : P.K. Deka, J. Heard Mr. D.K. Das, the learned Amicus Curiae and Mr. M. Phukan, the learned Public Prosecutor. 2. This appeal is directed against the judgment and order of sentence dated 30.06.2016 passed by the learned Sessions Judge, Dibrugarh in Sessions Case No.137/2012 (GR Case No.2519/2011) wherein the present appellant is convicted and sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs.5,000.00, in default Rigorous Imprisonment for 6(six) months. 3. The PW1, Vishal Lakra lodged an FIR on 11.12.2011 at 8.00 PM in the Rajgarh Police Outpost vide GD Entry No.184 dated 11.12.2011 which was subsequently registered as Tingkhong P.S. Case No.159/2011 dated 12.12.2011 under Section 302 of the IPC. In the FIR, Exhibit-1, it is stated that around 2.00 PM on 11.12.2011, the younger sister of PW1 whose name was Smti. Karishma Lakra (15 years) along with Smti. Pinki Mura went to Sec. No.39 at Kenduguri Tea Estate to collect firewood. When she did not return till dusk, she was searched and was found lying dead in Sec.39 of the tea garden. It was suspected that Raju Kujur (the appellant) was involved in the incident of killing. In course of investigation, the police also arrested another Sri Rabin Aind and arraigned him as the accused in the said GR Case No.2519/2011 arising out of said Tingkhong P.S. Case No.159/2011. 4. It is the case of the prosecution that on 11.12.2011, the deceased Karishma Lakra had gone along with two small girls Pinki and Rashmi to collect firewood from a drain inside Kenduguri Tea Estate where they encountered the accused persons who were also cutting firewood. They told the girls to leave and threatened to kill them if they did not listen to them. Pinki and Rashmi left but the deceased Karishma Lakra remained and subsequently her dead body was found with cut injuries upon her. It is the case of the prosecution that the accused persons killed the deceased after committing rape upon her. After investigation the police filed charge sheet under Section 376/302/34 of the IPC. Charges were framed both under Section 376 and 302 read with Section 34 of the IPC on 01.09.2012 by the learned Sessions Judge, Dibrugarh after committal. In the course of trial, the accused Rabin Aind absconded and declared as proclaimed offender. After investigation the police filed charge sheet under Section 376/302/34 of the IPC. Charges were framed both under Section 376 and 302 read with Section 34 of the IPC on 01.09.2012 by the learned Sessions Judge, Dibrugarh after committal. In the course of trial, the accused Rabin Aind absconded and declared as proclaimed offender. The case was split up and the same proceeded against the present appellant Sri Raju Kujur. 5. The learned trial court framed the following points for determination: (i) Whether the deceased died as a result of injuries sustained by her? (ii) Whether the accused person committed rape upon her? (iii) Whether the accused persons in furtherance of their common intention caused the death of the deceased? If so, whether such death was caused with intention or knowledge so as to amount to murder? 6. The learned trial court decided the first point for determination in the affirmative and so far the second point for determination is concerned, the same was decided in the negative as no medical investigation was carried out to ascertain the presence of injury on her private parts of the deceased and as per the inquest report there was no injury on the private parts. The forensic evidence adduced by PW15, the Senior Scientific Assistant, Serology Division, Directorate of Forensic Science Laboratory, Kahilipara, Guwahati indicates presence of blood only on the pink coloured underwear of the deceased sent for examination but no semen. No witnesses deposed about the commission of rape. As such, the same was decided in the negative. So far point for determination No.3 is concerned, the learned court below held as follows: “48. The factum probans or the circumstances established against the accused Raju Kujur may be thus summarized: (i) On the day of occurrence, the deceased was last seen together with the accused persons at an isolated place and her dead body was recovered at the same spot with cut injuries on her body shortly thereafter. The factum probans or the circumstances established against the accused Raju Kujur may be thus summarized: (i) On the day of occurrence, the deceased was last seen together with the accused persons at an isolated place and her dead body was recovered at the same spot with cut injuries on her body shortly thereafter. The accused were also carrying sharp cutting instruments with them, as they were cutting firewood; (ii) The accused persons compelled the PW2 and 3 (Pinki and Rashmi) to leave the place of occurrence, leaving the deceased behind; (iii) Possibility of any third person having access to the deceased during the above period can safely be excluded; (iv) The accused made disclosure statement on the basis of which the murder weapon (dao) was discovered, on being led and shown by the accused; (v) The forensic evidence confirmed the presence of human blood on the dao so recovered; (vi) As per the medical evidence, the injuries found upon the deceased were caused by sharp cutting weapon which can be dao; (vii) The accused failed to offer any acceptable explanation to the incriminating circumstances brought out against him and failed also to establish any alibi.” 7. On the basis of the said findings on the third point for determination, the present appellant was convicted with the sentence aforesaid. 8. Mr. Das, the learned Amicus Curiae, disputed the findings on the ground of applicability of the “last seen together” theory of the victim, the deceased with the accused persons. Mr. Das submits that the victim went to collect firewood along with Pinki Mura and one Rashmi Toppo, PW2 and PW3 respectively. The evidence of PW3 was not considered by the court on the ground that the said PW3, who was aged only 8 years on the date of deposition, did not attain maturity to understand the questions properly and to give answer. PW2 though stated in her examination-in-chief that while both herself and Rashmi went to collect firewood with the victim the accused persons threatened to kill them and at that relevant point of time, both were armed with ‘dao’ and ‘katari’ and they cut the victim Karishma and threw her into the drain and there were no other person except the two accused persons. But in her cross-examination she stated that she did not go to the place of occurrence and she did not see the accused assaulting the victim. From the said piece of evidence, coupled with the evidence of PW1-Vishal Lakra that the FIR was lodged on the basis of information given by Pinki and Rashmi that the said girls had seen the occurrence, Mr. Das submits that the theory of “last seen together” cannot at all be believed. In addition to that, PW4, Smti. Moriam Barak, who in her deposition stated that on the day of occurrence while she was going to the doctor (bez) she saw both the accused persons cutting firewood in the garden but upon her return she did not see the accused there. But the said fact was not stated by the said PW4 before the police and as such the said theory of “last seen together” cannot at all be pressed in order to supply the missing link of the circumstantial evidence considering the time gap of presence of accused persons and the delayed return of the said PW4 from the doctor (bez). It is the further contention of Mr. Das that the fact leading to discovery of the weapons used at the time of occurrence by the accused persons also cannot be believed inasmuch as the said statement of the present appellant who allegedly led to the discovery of the ‘dao’ from the nearby field cannot at all be believed as because there was no material to show on record about the said statement being recorded leading to discovery by the said accused person while in the police custody. Under such circumstances, Mr. Das submits that the prosecution failed to prove the guilt of the accused person beyond any reasonable doubt and as such the accused person be given the benefit of doubt thereby setting aside the judgment and the sentence. 9. The learned Public Prosecutor, on the other hand, submits that there is no point in disbelieving the fact leading to discovery of the weapon used in the commission of the offence inasmuch as the incriminating material like presence of human blood in the ‘dao’ which was discovered at the instance of the present appellant was not disproved nor there was any explanation forthcoming from the said accused/appellant. Accordingly the submission of learned Amicus Curiae about the wrong application of the theory of “last seen together” cannot be accepted inasmuch as it is not the mandate of the law that such disclosure statement shall always be put in the expressed form and required to be exhibited before the court. 10. The submission of the learned counsel are considered by us. PW13, Dr. S. J. Deka who conducted post-mortem on the dead body of the deceased Karishma Lakra found the following injuries: “i. Incised wound of 3 cm x 1 cm muscle deep over left maxilla, vertically placed 2 cm from the left ear, reddish in colour; ii. Incised wound of 1 cm x 1 cm muscle deep over the left face 3 cm from injury No.1 obliquely placed; iii. Incised wound of 6 cm x 3 cm obliquely placed over left chin and 0.4 cm from injury No.2 reddish in colour; iv. Incised wound over left side of front of neck muscle deep of 6 cm X 4 cm, carotidsheath completely clean cut, horizontally placed 3 cm below let mandible and 2 cm from midline in the front; v. Incised wound of 10 cm x 7 cm over right of the neck 2 cm below the mandible, clean cut muscle skin, carotidsheath, nick on C³ horizontally placed, 4 cm below chin.” As per the opinion, death was due to haemorrhagic shock as a result of injuries sustained and which were ante-mortem in nature caused by sharp cutting weapon and the time since death was 24-36 hours. 11. Before taking up the applicability of the “last seen together” theory, let us consider whether the disclosure statement by the present appellant to the investigating officer, PW14, S.I.-Jibendra Brahma can be accepted without any recording of the same. As per his deposition PW14, from the statement of the accused Raju Kujur (the appellant), could come to know the involvement of the other accused person, Sri Rabin Aind. The said Raju Kujur admitted the guilt before him and thereafter on the basis of his statement he arrested the other accused person, Sri Rabin Aind and seized one ‘dao’ and one axe on being shown by them which were used for committing the offence. The said ‘dao’ was recovered from nearby paddy field from the place of occurrence at Thekeraguri. The said ‘dao’ was recovered from nearby paddy field from the place of occurrence at Thekeraguri. On the other hand, the other accused person Sri Rabin Aind led to the discovery of the axe with bamboo handle which was seized from his house. The seizure lists were exhibited and seizure witnesses were also examined. 12. The learned trial court took note of the fact that the said PW14, the investigating officer did not depose as to whether he reduced to writing the statement of the accused Raju Kujur. Considering Exhibit-6, the seizure list, the learned court below recorded the time and date of seizure as 6.30 PM on 12.12.2011 and the place of seizure as the paddy field at Thekeraguri nearby Thekeraguri Bor Bil Poth which is situated some distance towards north east of the place of occurrence as apparent from the sketch map. The learned trial court took note of the deposition of PW8, Samu Kujur, one of the witnesses of the said seizure list, Exhibit-6 and considered the evidence of the said PW8 and held that the said evidence of PW8 lends credibility to the inference that the accused Raju Kujur in fact disclosed to the PW14 about the location of ‘dao’ which led to its discovery from the said place by the said investigating officer. Further, the learned trial court held that the evidence of the PW14 that the accused led the police to the place wherefrom the ‘dao’ was recovered itself is sufficient to support the disclosure statement made by the accused/appellant. More so, there is no material to indicate that PW14 was inimical towards the accused person. 13. In Rajiv Phukan and Another vs. State of Assam, reported in 2009 (2) GLT 414, a Full Bench of this Court held as follows: “24. Thus, the recording of a statement of a person under Section 161 in writing is optional for the police officer who investigates a case. It is not, therefore, statutorily mandatory for a police officer to reduce into writing the statement made to him by a person who may be acquainted with the facts and circumstances of a given case. Such a person may be a witness to an offence; such a person, may also be the one who has committed the offence.” 14. It is not, therefore, statutorily mandatory for a police officer to reduce into writing the statement made to him by a person who may be acquainted with the facts and circumstances of a given case. Such a person may be a witness to an offence; such a person, may also be the one who has committed the offence.” 14. In the present case in hand, the learned court below, as referred hereinabove, held that PW14, the investigating officer did not depose whether he reduced to writing the above statement of the accused Raju Kujur. The learned court below taking one step further perused the case diary under Section 172 (2) of the Cr.P.C. and came to the conclusion that PW14 recorded the statement therein which was not exhibited including the written account of the disclosure statement of the accused person recorded under Section 161 of the Cr. P.C. However, the learned court below did not take it into consideration which he rightly did so. Referring to the aforesaid Full Bench decision of this Court recording of a statement of a person under Section 161 of Cr.P.C. in writing is optional for the police officer who investigates the case and as such the same is not mandatory for a police officer to reduce into writing the statement made to him by a person who may be acquainted with the facts and circumstances of the given case and such person may also be the one who has committed the offence. It is the knowledge of the Investigating Officer which is important so far the discovery is concerned and if the said discovery has any relevancy with the fact in issue the said discovery has a role to play in deciding the involvement of the accused person in the crime. 15. It is the knowledge of the Investigating Officer which is important so far the discovery is concerned and if the said discovery has any relevancy with the fact in issue the said discovery has a role to play in deciding the involvement of the accused person in the crime. 15. In S.C. Bahri vs. State of Bihar, reported in AIR 1994 SC 2420 , a similar issue was faced by the Hon’ble Apex Court wherein no disclosure statement of one of the accused persons Gurbachan Singh, who gave the information about the dumping of the dead body under the hillock of Khadgraha dumping ground was recorded but there was assertive statement of one Rajeswar Singh, PW59, Station House Officer of Chutia Police Station who deposed that during the course of investigation, Gurbachan Singh led him to the said hillock along with an inspector where after on pointing out the place by the said accused Gurbachan Singh, he got that place unearthed by labourers and recovered incriminating materials which were seized as per Seizure Memo, Exhibit-5. The Hon’ble Apex Court while discussing the evidentiary value of the said discovery on the basis of the unrecorded disclosure statement of one of the accused persons held as follows: “71. The two essential requirements for the application of Section 27 of the Evidence Act are that (1) the person giving information must be an accused of any offence, and (2) he must also be in police custody. In the present case it cannot be disputed that although these essential requirements existed on the date when Gurbachan Singh led PW59 and others to the hillock where according to him he had thrown the dead body of Urshia but instead of the dead body the articles by which her body was wrapped were found. The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmed by the discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the articles of crime cannot be false. In the present case as discussed above the confessional statement of the disclosure made by the appellant Gurbachan Singh is confirmed by the recovery of the incriminating articles as said above and, therefore, there is reason to believe that the disclosure statement was true and the evidence led in that behalf is also worthy of credence.” 16. Similar is the situation in hand. The PW14, the investigating officer, in presence of witnesses, recovered the ‘dao’ as per the statement of the accused person who is the present appellant while he was in the police custody and the same was seized as per the Exhibit-6 in presence of witnesses out of which the PW8 is one of them who supported the fact of such leading to discovery by the said accused person. As recording of the statement made under Section 161 of the Cr.P.C. is not mandatory, under such situation, keeping in view the aforesaid ratio of the Hon’ble Apex Court, in our opinion, the submission of Mr. Das, the learned Amicus Curiae cannot be accepted. On the other hand, consideration of the said material piece of evidence leading to the discovery of the ‘dao’ can be accepted and considered which the learned trial court correctly did so and the requirement of Section 27 of the Indian Evidence Act are also fulfilled. From the said ratio of the Hon’ble Apex Court, statement under Section 27 of the Indian Evidence Act, 1872 need not be required to put down in the written form. Suffice it to say that information leading to discovery must however be made by the accused person while he was in the police custody. 17. Evidence of Sri Arup Manta, PW15 who is the Junior Scientific Officer, Serology, Directorate of Forensic Science Laboratory, Kahilipara, Guwahati proved the opinion after the forensic examination of the materials seized including the undergarments of the victim Karishma and weapons used in commission of the said offence by the accused persons and the report is Exhibit-11 and the findings are reproduced below: “i. Exhibit No. Sero-2932/D and, Sero 2932/E gave positive test for human blood of “B” group. ii. Exhibit No. Sero-2932/A gave positive test for human blood only but its group could not be ascertained due to rusting of the Dao. iii. Exhibit No. Sero-2932/C and, Sero 2932/F gave positive test for blood only. iv. ii. Exhibit No. Sero-2932/A gave positive test for human blood only but its group could not be ascertained due to rusting of the Dao. iii. Exhibit No. Sero-2932/C and, Sero 2932/F gave positive test for blood only. iv. Exhibit No. Sero-2932/C, Sero 2932/G, Sero 2932/H, Sero 2932/I and, Sero 2932/J gave negative test for presence of semen. v. Exhibit No. Sero-2932/B, Sero 2932/G, Sero 2932/H, Sero 2932/I and, Sero 2932/J gave negative test for presence of blood. vi. Since Exhibit No. Sero-2932/G, Sero 2932/H, Sero 2932/I, and, Sero 2932/J gave negative test for presence of blood therefore its comparison with Exh. Sero 2932/D, Sero 2932/E and Sero 2932/F does not arise. vii. Since Exhibit No. Sero-2932/A gave positive test for human blood only and Sero 2932/B gave negative test for blood therefore its comparison with Exh. Sero 2932/D, Sero 2932/E and Sero 2932/F does not arise.” 18. The ‘dao’ is the Exh. No. Sero 2932/A and from the result of examination it is seen that there is presence of human blood and the group of blood could not be ascertained due to rusting of the ‘dao’. Sero 2932/C, Sero 2932/D and Sero 2932/E are the underwear, top (T shirt) and sweater respectively which are the apparels of the victim which gave positive test for human blood of B group. Sero 2932/B which is the axe gave negative test for presence of blood. The learned court below upon consideration of the said evidence of PW15, Sri Arup Manta came to the conclusion that the ‘dao’ was found with human blood upon it. Thereafter on perusal of the record it is seen that the accused/appellant was specifically informed about the findings of the blood stain in the ‘dao’ as per question No.17 of the learned Sessions Judge while recording the statement of the accused/appellant under Section 313 of the Cr.P.C. and his reply is total denial. 19. The present case is devoid of any eye witness having seen the commission of the offence by the accused persons. Under such circumstances the principle of circumstantial evidence will come into play. The PW2 who accompanied the deceased Karishma along with Rashmi to collect firewood deposed that the said two accused persons threatened them and asked them to leave the said place. Under such circumstances the principle of circumstantial evidence will come into play. The PW2 who accompanied the deceased Karishma along with Rashmi to collect firewood deposed that the said two accused persons threatened them and asked them to leave the said place. Both the PW2 and PW3 left the place but the victim Karishma remained there and after having awaited for long and there being no sign of Karishma returning back to their company, PW2 informed the PW1, the elder brother of Karishma about the killing of the said Karishma by the said two accused persons. However, in the cross-examination she denied having seen of any commission of offence on the said deceased. PW4, on the other hand though deposed that she saw the two accused persons at the place of occurrence while going to the doctor (bez) and on her return she did not find the said two accused persons there in the place of occurrence. The said fact was not stated in her 161 Cr.P.C. statement before the police. Under such circumstances, the learned court below opted not to consider the said piece of evidence. 20. Now, the only missing link is whether the said two accused persons were present and committed the offence. As per the post-mortem report and the nature of the injuries it clearly indicates that the said injuries can be caused by the nature of weapon like ‘dao’. The fact that the said ‘dao’ was used in commission of the said offence is established by the result of the forensic examination proved by the said PW15, Sri Arup Manta which shows that human blood stain was found on the ‘dao’. The said ‘dao’ was seized from a nearby field and the said discovery was on the basis of the statement made to the investigating officer by the present appellant. The present appellant was explained and sought for his explanation as to the findings of the blood stain on the ‘dao’ as per the report of the forensic laboratory test. The accused person (the appellant) simply denied and no explanation was forthcoming which are the evidence on record to decide the culpability of the accused/appellant. The nature of injuries are incised as seen from the post-mortem report which can very well be caused by a ‘dao’. The said ‘dao’ is stained with human blood. The said fact is proved beyond any reasonable doubt. The nature of injuries are incised as seen from the post-mortem report which can very well be caused by a ‘dao’. The said ‘dao’ is stained with human blood. The said fact is proved beyond any reasonable doubt. This established fact is consistent only with the hypothesis of the guilt of the accused person. 21. In Jagsir Singh vs. State of Punjab, AIR 2012 SC 2600 , on a similar factual matrix wherein the accused came to the house of the complainant and asked his son to accompany him for plucking flowers from the field, the son who was about 10 years old boy accompanied him. The boy did not return home till the evening. On the next day, the complainant reached the field of one Santosh Singh and found some freshly dug earth near a heap of sticks. Being suspicious all of them dug out the earth and found the dead body of Jagjit Singh lying buried having injury marks on the head. The accused person denied the charge of Section 302 read with section 34 and 201 of the IPC. The reports of forensic science laboratory and many other documents, leaving aside the prosecution witnesses, were placed by the prosecution side to prove its case. As per the forensic science laboratory report the weapon used i.e. the spade was found stained with human blood. The circumstance which was weighed by the courts were last seen with the deceased and the extra-judicial confession made by the accused before one of the witnesses. Similar plea was taken as that of the present one so far the “last seen together” theory is concerned as the time gap between the point of time when the accused was last seen with the deceased and when the deceased was found dead is of long duration and as such the circumstances is to be ignored. The Hon’ble Apex Court while discarding the said stand held as follows: “30. Another aspect is to be taken note of. Though the incriminating circumstances which point to the guilt of the accused had been put to the accused, yet he could not give any explanation under Section 313 of the Code of Criminal Procedure except choosing the mode of denial. Another aspect is to be taken note of. Though the incriminating circumstances which point to the guilt of the accused had been put to the accused, yet he could not give any explanation under Section 313 of the Code of Criminal Procedure except choosing the mode of denial. In State of Maharashtra v. Suresh[23], it has been held that when the attention of the accused is drawn to such circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for completing the chain of circumstances. We may hasten to add that we have referred to the said decision only to highlight that the accused has not given any explanation whatsoever as regards the circumstances put to him under Section 313 of the Code of Criminal Procedure.” 22. In the present case in hand, the weapon used is stained with human blood and the said weapon was discovered as per information provided by the present accused/appellant to the investigating officer. The appellant was asked about such incriminating materials including the blood stain in the ‘dao’ and to explain about such incriminating materials against him. There was no explanation, rather it was mere denial by the present accused/appellant. Under such circumstances as the attention of the accused was drawn to such circumstances which inculpate him in the crime who failed to offer a proper explanation, the same can be counted as providing a missing link for completing the chain of circumstances. Thus, the presence of the accused/appellant at the place of occurrence is proved who committed the murder of Karishma Lakra by the ‘dao’ on that fateful day. The learned trial court rightly held that possibility of any third party having access to the deceased during the said period can safely be excluded. The submission of the learned Amicus Curiae against the “last seen together” theory cannot be accepted. Accordingly the appeal stands dismissed. 23. We express our gratitude to the learned Amicus Curiae, Mr. Deba Kumar Das in assisting this Court in conducting the appeal and a sum of Rs.7,500.00 (Seven thousand, five hundred) only be paid to the learned Amicus Curiae for rendering his valuable service in assisting this Court in this appeal as his professional fee. 24. 23. We express our gratitude to the learned Amicus Curiae, Mr. Deba Kumar Das in assisting this Court in conducting the appeal and a sum of Rs.7,500.00 (Seven thousand, five hundred) only be paid to the learned Amicus Curiae for rendering his valuable service in assisting this Court in this appeal as his professional fee. 24. The judgment and order of sentence passed by the learned Sessions Judge, Dibrugarh is upheld and affirmed. 25. A copy of this judgment and order be furnished to the appellant through the superintendent of Central Jail, Dibrugarh. 26. Send back the LCR.