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2018 DIGILAW 1607 (GAU)

Rajen Ganju v. State of Assam

2018-11-13

HITESH KUMAR SARMA, MIR ALFAZ ALI

body2018
JUDGMENT & ORDER : H.K. Sarma, J. This Criminal Appeal has been preferred from jail by appellant, Sri Rajen Ganju, against the judgment, dated 19.08.2016, passed by learned Sessions Judge, Tinsukia in Sessions Case No. 100(T)/2015 convicting the appellant for offence under Section 302 of Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and fine of Rs. 1,000/-, in default, to suffer further rigorous imprisonment for 6 (six) months. 2. The prosecution case is that, the PW2, Sanjay Gorh, lodged an FIR with the Bordubi Police Station through Langkashi Police Out Post alleging that, on 08.03.2015, the accused-appellant assaulted his 2nd wife, Durgamoni Ganju near the tube well with a bamboo stick causing injuries on her head and other parts of her body, resulting in her death. The dead body of the deceased was dragged inside the house by the accused-appellant. The informant/PW2 is the brother of the deceased. 3. On receipt of the FIR, the Bordubi Police Station registered a case, investigated into it, collected evidence, and finally, submitted charge-sheet under Section 302 of the IPC against the accused-appellant. 4. After exhausting all the required legal formalities, the case came up before the learned Sessions Judge. The learned Sessions Judge framed a formal charge against the accused-appellant under Section 302 of the IPC to which the he pleaded innocence and claimed to be tried. Therefore, the trial commenced. 5. The prosecution examined as many as 11 (eleven) witnesses, including the investigating Police Officer, the Autopsy Doctor and the Magistrate, who conducted the inquest of the dead body. 6. We have perused the record of the learned trial court, including the evidence and the impugned judgment. 7. We have heard Mr. D.K. Das, learned Amicus Curiae, appearing for the accused-appellant as well as Mr. N.K. Kalita, learned Additional Public Prosecutor, appearing for the State of Assam. 8. Before proceeding to discuss and evaluate the evidence of all the witnesses, we propose to look into the evidence of the Autopsy Doctor, who performed the post-mortem examination. 9. The Autopsy Doctor, examined as PW1, exhibited the post-mortem examination report, vide Ext.-1. On post-mortem examination of the deceased, the PW1 recorded his findings as follows :- “External Appearance:- A female dead body of dark colour complexion, 5 feet height, putting one mekhela chadar and blanket. Rigor mortis present. Injuries 1. 9. The Autopsy Doctor, examined as PW1, exhibited the post-mortem examination report, vide Ext.-1. On post-mortem examination of the deceased, the PW1 recorded his findings as follows :- “External Appearance:- A female dead body of dark colour complexion, 5 feet height, putting one mekhela chadar and blanket. Rigor mortis present. Injuries 1. Lacerated injury on the right temporal region of size 5cm X 3cm. On dissection, temporal bone fractured and subdural haemorrhage present. 2. Fracture of pelvic bone on left side present. Inside the abdomen, blood clot present. 3. Dislocation with contusion of lower end of tibia, outside the skin. 4. Multiple abrasions on both sides of face. 5. Multiple abrasion of back side of chest, abdomen with contusion in various sizes. 6. Multiple abrasions on both upper limbs with varied sizes and shapes. 7. Multiple abrasions on both legs in various sizes and shape. Other organs were normal and healthy.” He also opined that, death was due to shock and haemorrhage as a result of injuries described and were ante mortem and homicidal in nature. Time since death was 12 to 24 hours. He also opined that injury No. 1 is individually sufficient to cause death of a person in normal course and such injury might be caused by blunt force impact. It appears from such evidence of the PW1 that the death of the deceased was homicidal in nature due to the injuries sustained by her, particularly, the injury No. 1, referred to above. 10. Now the question is as to who committed the murder of the deceased, and whether it is the accused-appellant. 11. The evidence of PW2/informant is that the accused-appellant went to his house in the night of the date of occurrence and told him that the deceased had sustained some injuries after falling near the tube-well. Then, he himself with his mother/PW3 came to the place of occurrence, i.e., the house of the accused-appellant and found the deceased lying dead with injuries on various parts of her body. 12. But, none of the PW2 and PW3 is very specific as to the fact that it was none but the accused-appellant, who had killed the deceased. Their evidence relates to the fact of giving them the information by the accused-appellant as to the injuries sustained by the deceased. 12. But, none of the PW2 and PW3 is very specific as to the fact that it was none but the accused-appellant, who had killed the deceased. Their evidence relates to the fact of giving them the information by the accused-appellant as to the injuries sustained by the deceased. So such evidence of the PW2 and PW3 cannot be said to have rope the accused-appellant with the commission of the alleged offence with direct evidence. 13. The evidence of PW4 is that she was informed by PW2 that the accused-appellant killed his sister/deceased. Then, she went to the place of occurrence and found the deceased lying dead. She has very specifically stated that she has not seen the incident. Her evidence does not appear to have implicated the accused-appellant. 14. The evidence of PW5 is that the PW3/mother of the deceased informed her that the accused-appellant had killed her daughter, i.e., the deceased. She then went to the place of occurrence and found the deceased lying dead in the courtyard of the house of the accused-appellant. She also found some bricks, rope and bamboo fencing posts lying there. The accused-appellant was also present at that time. But, in her cross-examination, she has admitted that she did not witness the occurrence and do not have any personal knowledge of the same. Such being her evidence, she has not implicated the accused-appellant with direct evidence. 15. The evidence of PW6 is that the accused-appellant has confessed before her that he had killed the deceased, meaning thereby, that the accused-appellant has made an extra-judicial confession before her. Such fact, as appeared in the evidence of PW6, has also been echoed in the evidence of PW9, who has also deposed that the accused-appellant confessed his guilt before the public and in presence of the police. But, the prosecution has not cross-examined any of the public, except, the PW6 before whom the alleged extra-judicial confession was made. 16. But, the Investigating Police Officer, examined as PW11, is not found subscribing to such evidence of PW6 and PW9 since he has not made a mention of such extra-judicial confession allegedly made by the accused-appellant in his evidence. On the other hand, extra-judicial confession is a very weak piece of evidence and needs very strong corroboration to prove the same. But, the Investigating Police Officer, examined as PW11, is not found subscribing to such evidence of PW6 and PW9 since he has not made a mention of such extra-judicial confession allegedly made by the accused-appellant in his evidence. On the other hand, extra-judicial confession is a very weak piece of evidence and needs very strong corroboration to prove the same. Here in this case, except the mere statement by PW6 and PW9, in their evidence, that the accused-appellant made a statement before the public confessing his guilt, there is no evidence to corroborate such fact. On the other hand, there is no evidence led by the said two witnesses as to the exact statement confessing his guilt with the words spoken by him which is necessary in legal parlance. 17. The Additional Public Prosecutor, Mr. N.K. Kalita, has submitted that at the time of occurrence, the accused-appellant was in his house and he has not been able to explain as to how the deceased died and how she sustained the injuries. According to him, the accused-appellant, being the husband, residing in the same house with the deceased at the relevant point of time, owes an explanation as to the fact leading to the death of the deceased. But, in the entire materials on record, there is no evidence found specifically indicating that at the time of death of the deceased, the accused-appellant was available in his house. 18. The learned Additional Public Prosecutor has also submitted that it was the accused-appellant who informed the PW2 and PW3 about the injuries sustained by the deceased following which they came to the place of occurrence only to find the deceased dead. Such facts themselves do not mean that the accused-appellant was present in his house at the time of occurrence. The submission made by the learned Additional Public Prosecutor makes it appear that the prosecution wants to rope the accused-appellant with the commission of the alleged offence on the basis of circumstances. According to the learned Additional Public Prosecutor, the presence of the accused-appellant in his house at the relevant time of the occurrence and his failure to explain as to how the deceased died and such circumstances leads to the inference that it was none but the accused-appellant, who committed murder of the deceased. According to the learned Additional Public Prosecutor, the presence of the accused-appellant in his house at the relevant time of the occurrence and his failure to explain as to how the deceased died and such circumstances leads to the inference that it was none but the accused-appellant, who committed murder of the deceased. But, the law as regards circumstantial evidence is now well settled being laid down by the Hon’ble Supreme Court in various decisions. There has to be a chain of circumstances unerringly pointing to the guilt of the accused and the circumstances should not permit any other hypothesis except the guilt of the accused-appellant. 19. In the instant case, the circumstances, referred to by the learned Additional Public Prosecutor, in the considered view of this court do not constitute a chain raising the only inference unerringly pointing to the guilt of the accused-appellant. 20. The evidence also shows that the accused-appellant and the deceased had 3 (three) children, ranging from 5 to 10 years of age. The PW3/mother of the deceased deposed that the children were in the house of Ganju which means that they were not with the accused-appellant. On the other hand, the informant (PW2) deposed that the children were present in their own house on the date of occurrence. There is no attempt made by the Investigating Police Officer to verify the fact as to the presence or otherwise at the place of occurrence at the relevant point of time. The learned trial court has indicated in the judgment, impugned herein, that it is the quality of evidence and not the quantity that should be weighed while assessing the merit of a case. 21. In the instant case, the learned trial court found quality in the evidence of the witnesses. But, as discussed above, none of the witnesses are found to be eye-witness and even their evidence is based on statement made to them by the PW2 and PW3 respectively, meaning thereby, that they did not have any independent knowledge of the occurrence at all. Non-examination of the 3 (three) children of the accused-appellant, in the considered opinion of this court, is a vital omission since they were the most probable vital witnesses in this case. Non-examination of the three children as witnesses leads to an inference that had they been examined they would not have supported the prosecution case. Non-examination of the 3 (three) children of the accused-appellant, in the considered opinion of this court, is a vital omission since they were the most probable vital witnesses in this case. Non-examination of the three children as witnesses leads to an inference that had they been examined they would not have supported the prosecution case. That apart, the examination of three children of the accused-appellant would have also thrown light on the facts as to whether the accused-appellant was the only inmate in the place of occurrence at the relevant time of occurrence apart from his deceased wife and that would have also ruled out any alternative theory. Therefore, although it is a settled law that omission on the part of the Investigating Police Officer should not be allowed to stand as a stumbling block in the way of dispensing justice yet, if the omission, on the part of the Investigating Police Officer, is such that it would have brought to light another aspect which would have exculpated the accused-appellant, then, it must be treated to be a very serious omission effecting the merit of the prosecution case. 22. In view of the above discussions as well as the arguments put forward by the respective learned counsel for the parties, this court is of view that the judgment rendered by the learned trial court convicting and consequently sentencing the accused-appellant for an offence under Section 302 of the IPC appears to have not been based on evidence on record, and therefore, the impugned judgment needs to be interfered with. Accordingly, this jail appeal is allowed. 23. The appellant be released forthwith, if not required in any other case. 24. Send down the LCR with a copy of this judgment. 25. This Court appreciates the assistance rendered by the learned Amicus Curiae and directs that an amount of Rs. 7,500/- be paid to the learned Amicus Curiae as honorarium for the assistance rendered by him.