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2018 DIGILAW 1148 (GAU)

Kiran Brahma v. State of Assam

2018-08-06

AJIT SINGH, MANOJIT BHUYAN

body2018
JUDGMENT : Ajit Singh, J. The sole appellant Kiron Brahma 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. 2. The victim of the incident was Doshi Brahma, aged about 50 years. 3. According to the prosecution case, Doshi Brahma lived in Muwria Gaon in Udalguri district of Assam with her sons - Bijoy Brahma (PW-8) and Ajoy Brahma (PW-9) besides her two daughters Rewati Brahma and Renu Brahma. At about 10:30 AM on 02.07.2005, Doshi Brahma was found lying dead on the road with injuries on her head. Coming to know about the same, Ajoy Brahma lodged the Exhibit-5 First Information Report in the Udalguri Police Station stating that someone had killed Doshi Brahma on the road by beating her and as such some action may be taken in this regard. Ajoy Brahma also told the police that on 12.06.2005 some persons of his village tied Doshi Brahma and her two daughters and assaulted them. He named those persons too, which were reduced into writing at the bottom of First Information Report. 4. At the time of lodging the First Information Report, appellant surrendered before the police and confessed before Sub-Inspector Subhas Kachari (PW-5) that he had committed the murder of Doshi Brahma by assaulting her with a spade. Subhas Kachari visited the place of occurrence. He got the inquest done and sent the body of Doshi Brahmato Mangaldoi Civil Hospital for post-mortem examination. He also seized the spade, vide Exhibit -2 seizure list, from the house of the appellant in presence of Thaneswar Brahma (PW-3) and Bijoy Brahma as led by the appellant and arrested him. 5. Dr. Nirmal Chandra Sarma (PW-4) conducted post mortem examination on the dead body of Doshi Brahma. He found one depressed lacerated wound in front of face involving left eye, forehead, nose and upper jaw, causing fracture of the maxillary bone, frontal bone, upper jaw and teeth. Left eye was found to be completely damaged and an incised wound 6 cms x 2 cms was found on right fore-mar interiorly. According to the doctor, death was due to shock and hemorrhage due to the injuries sustained, which were ante-mortem and homicidal in nature. His post mortem examination report is Exhibit-3. After completing the investigation, Sub-Inspector Subhas Kachari submitted Exhibit-4 charge-sheet against the appellant. 6. According to the doctor, death was due to shock and hemorrhage due to the injuries sustained, which were ante-mortem and homicidal in nature. His post mortem examination report is Exhibit-3. After completing the investigation, Sub-Inspector Subhas Kachari submitted Exhibit-4 charge-sheet against the appellant. 6. During trial, appellant abjured his guilt. But the trial court relying upon the evidence adduced by the prosecution especially eye witnesses Milan Basumatary (PW-1), Dandeswar Basumatary (PW-2) and Bijoy Basumatary (PW7) convicted and sentenced as aforesaid. 7. It is argued on behalf of the appellant that there is no eye witness in fact and the trial court totally misread the evidence of the above noted witnesses thereby coming to an erroneous conclusion and in absence of any other credible independent witness; the conviction is not sustainable in law. However, the learned Additional Public Prosecutor supported the impugned conviction and sentence. 8. The trial court heavily relied on the evidence of eye witnesses Milan Basumatary (PW1), Dandeswar Basumatary (PW-2) and Bijoy Basumatary (PW-7). Secondly, the trial court was convinced that a spade was used for committing the crime which was seized from the house of the appellant and it is the appellant who led the police to his house where the spade was kept. Thirdly, it is the appellant who surrendered in the Police Station immediately after the occurrence and who confessed his guilt before the police. 9. We made a meticulous scrutiny of the evidence of the above noted three witnesses and have found that they claimed to be eye witnesses. Milan Basumatary has deposed that Doshi Brahma was his aunt and he saw the appellant striking her on her head with a hoe when he was standing near a Brahma Mandir. He also deposed that he saw the appellant running away after committing the crime and he found him again in the police station later on. But during his cross-examination he admitted that he did not tell the police that he saw the appellant committing murder of his aunt. This conduct of Milan Basumatary is very unnatural. He in fact did not tell the police in his statement recorded under Section 161 of the Code of Criminal Procedure, immediately after the occurrence, that he saw the appellant committing murder of his aunt. This conduct of Milan Basumatary is very unnatural. He in fact did not tell the police in his statement recorded under Section 161 of the Code of Criminal Procedure, immediately after the occurrence, that he saw the appellant committing murder of his aunt. Had he really seen the occurrence, he would have definitely told the police more so when he found the appellant in the police station, there was no reason for him to conceal that fact. He was also an inquest witness and he had enough opportunity to implicate the appellant before the police. Interestingly, he did not tell Bijoy Basumotary about involvement of the appellant in murder of Doshi Brahma. 10. Bijoy Basumatary is the son of Doshi Basumatary and cousin of Milan Basumatary. So naturally had Milan Basumatary seen the occurrence, he would have definitely told Bijoy Basumatary about it. Though Bijoy Basumatary has also deposed that he saw the appellant assaulting his mother twice with a hoe when he was ploughing, he too , did not state before police during his statement recorded under Section 161 of the Code of Criminal Procedure that he saw the appellant assaulting his mother with a hoe, which is also a very unnatural human behavior. He even did not tell his brother Ajoy Basumatary about the same which is totally shocking. Had he seen the occurrence, he would have definitely told his brother Ajoy Basumatary about it and in that event, Ajoy Basumatary would have unmistakably named the appellant in the First Information Report. But Ajoy Basumatary did not name the appellant in the first instance and rather named some odd 13 (thirteen) co-villagers whom he suspected of involvement in the crime since they allegedly had beaten Doshi Brahma a few days before the incident. Ajoy Basumatary deposed that the appellant came to him running after committing the crime and told him that he had cut Doshi Brahma and thereafter asked for Ajoy Basumatary s bi-cycle. Had the appellant told Ajoy Basumatary that he had committed murder of Doshi Brahma, Ajoy Basumatary would not have concealed his identity in the First information Report. Ajoy Basumatary also did not state before police that appellant told him that he had committed murder of Doshi Brahma, which Ajoy Basumatary admitted during his cross-examination. 11. The third eye witness, Dandeswar Basumatary, was the younger brother of Doshi Brahma. Ajoy Basumatary also did not state before police that appellant told him that he had committed murder of Doshi Brahma, which Ajoy Basumatary admitted during his cross-examination. 11. The third eye witness, Dandeswar Basumatary, was the younger brother of Doshi Brahma. He deposed that he saw the appellant giving blows with a hoe to her and at that time Milan Basumatary was also with him. But, Milan Basumatary did not testify that Dandeswar Basumatary was present with him and thus the presence of Dandesawar Basumatary in the place of occurrence is doubtful. Besides, Dandesawar Basumatary also did not state before police during his statement recorded under Section 161 of the Code of Criminal Procedure that he saw the appellant assaulting his elder sister with a hoe, which is also a very unnatural human behavior and thus casts a doubt on his testimony. None of the above noted witnesses stated before police that they saw the appellant committing the crime and subsequently for the first time in the court claimed to have seen the appellant assaulting Doshi Brahma. 12. These witnesses are relatives of Doshi Brahma and it is apparent that they were trying to somehow frame the appellant guilty of the crime and were interested in his conviction and thus acted as partisan witnesses. So, we are of the view that neither of them had actually seen the appellant committing the crime and as such differ with the view of the trial court that Milan Basumatary (PW-1), Dandeswar Basumatary (PW-2) and Bijoy Basumatary (PW-7) were eye witnesses, not to even speak of their reliability. 13. The second leg of the trial regarding seizure of the spade from the house of the appellant at his instance and its connection with the crime is also not proved beyond reasonable doubt. The spade was not exhibited and thus prima facie a doubt is cast as to which spade the police seized and even if it was seized, then whether the said same weapon was used for committing the crime. Seizure witness Thaneswar Brahma (PW-3) admitted during his cross-examination that he did not see as to from where police seized the spade and when he signed the seizure list, the spade was in the hands of police. He also admitted that he did not see the spade in the court. Seizure witness Thaneswar Brahma (PW-3) admitted during his cross-examination that he did not see as to from where police seized the spade and when he signed the seizure list, the spade was in the hands of police. He also admitted that he did not see the spade in the court. Even the investigating officer - Subhas Kachari - did not depose anything to show that the spade was used for the crime. Mere deposition of Subhas Kachari that the appellant led the police to discovery of the spade without any supportive, material to corroborate the same would not decisively point the finger of guilt towards the appellant and as such, seizure of any spade from the house of the appellant is not a conclusive evidence against him moreso when spade is a common household tool in villages. 14. The third leg on which the prosecution tried to establish guilt of the appellant is his surrender before the police and extra-judicial confession made before the police. It is no more res-integra that confession made before police is not admissible in evidence and as such, any extra-judicial confession made by the appellant while he was in custody of the police is not admissible in evidence. Therefore, the sole fact of his surrender before police without there being any other supporting evidence to implicate him in the crime would not make him guilty. 15. We, therefore, disagree with the findings of the trial court and hold the appellant not guilty of the charge. The impugned judgment is accordingly set aside. The appellant is in jail and as such he is directed to be released forthwith. 16. The appeal is allowed.