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2018 DIGILAW 1631 (GAU)

Hareram Keot v. State of Assam

2018-11-20

HITESH KUMAR SARMA, MIR ALFAZ ALI

body2018
JUDGMENT : Hitesh Kumar Sarma, J. 1. This Criminal Appeal has been preferred from jail by the appellant, Sri Hareram Keot, against the judgment, dated 12.07.2016, passed by the learned Sessions Judge, Jorhat in Sessions Case No. 54(J-J)/2010 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. 20,000/-, in default, to suffer further rigorous imprisonment for 6 (six) months. 2. This is a tragic case of murder of 2 (two) young sons of the informant(PW 1) by the present accused-appellant and other co-accused. The fact leading to the case, as appears from the materials on record including the FIR (Ext-1) is that, on 19.03.2010, at about 11:30 am, deceased sons of the informant/PW 1, Pinku Keot and Prem Keot were working in their agricultural field, situated at Soklani Pathar Gaon, where the accused-appellant and his brother, on being instigated by their mother, inflicted injuries on the vital parts on their persons, resulting, ultimately, in their death at the place of occurrence itself. 3. On receipt of the FIR, a police case, being Pulibor P.S. Case No. 26/2010 was registered under Sections 114/302/34 of the IPC. The police investigated into it, collected evidence including causing of inquest of the dead bodies of the deceased as well as postmortem examination done, and finally, on completion of the investigation, laid the charge-sheet against the present accused-appellant and two others under the aforesaid provisions of law. 4. The learned trial court, after exhausting all the required legal formalities, framed a formal charge against the present accused-appellant and other co-accused under Sections 114/302/34 of the IPC and read over the same to them to which they pleaded innocence. Therefore, the trial commenced. 5. During the trial, on the basis of the evidence available on record, the learned trial court held co-accused, Ajoy Keot to be a minor, and therefore, his trial was segregated and referred to the jurisdictional Juvenile Justice Board. After examining 17 (seventeen) prosecution witnesses, the prosecution evidence was closed. After closure of the prosecution evidence, the statement of the accused-appellant and other co-accused was recorded under Section 313 of the Cr.P.C., and in their such statements, they are heard denying the accusations made against them. The defence declined to adduce any evidence. After examining 17 (seventeen) prosecution witnesses, the prosecution evidence was closed. After closure of the prosecution evidence, the statement of the accused-appellant and other co-accused was recorded under Section 313 of the Cr.P.C., and in their such statements, they are heard denying the accusations made against them. The defence declined to adduce any evidence. On completion of the trial, the learned trial court convicted the accused-appellant as indicated above while acquitting the co-accused, Sri Putuwa Keot. 6. We have perused the record of the learned trial court, including the evidence and the impugned judgment. 7. We have heard Mr. MBU Ahmed, learned Amicus Curiae, appearing for the accused-appellant as well as Mrs. S Jahan, learned Additional Public Prosecutor, appearing for the State of Assam. 8. Before proceeding to discuss about the alleged involvement of the accused-appellant with the commission of the murder of the deceased persons, let us examine the evidence of the Autopsy Doctor, who performed the post-mortem examination on the dead bodies of the deceased, vide Exts-6 and 7, respectively. 9. The evidence of the Autopsy Doctor, examined as P.W. 15, in respect of death of the deceased, Prem Keot are as follows:- "One male dead body of average built aged approximately 22 years. Rigor-mortis present all over the body. Wounds, Position, Size and Character:- Severe cut mark [8" length X 4" breadth X 3" depth] seen on the right side of neck area. Right hand had gross cut injury at wrist joint level, just skin and few amount of tissues attached. Cut injury seen on left palmar region. Linear cut injury [4" X 3" X 2"] seen at the middle portion of chest. Scalp, Skull & Vertebrae:- All are healthy and congested. Membrane:- Healthy and congested. Brain and Spinal Cord:- Brain congested. Liver, Spleen, Kidneys and Bladder:- Healthy and congested. The bladder is partly filled with urine. Walls, Ribs & Cartilage:- Linear cut injury [4" X 3" X 2"] seen at the middle portion of chest. Organs of Generation, External & Internal:- Healthy and intact. Walls, peritoneum, mouth, pharynx and Oesophagus:- Healthy and congested. Tongue is protruded. Stomach and its contents:- Filled with undigested food particles. Small Intestine and its contents:- Contains fluid and partly digested food particles. Large intestine and its contents:- Contains gases and faecal matters. Pleurae:- Healthy and congested. Right and Left Lung:- Healthy and congested. Heart:- Left side empty. Walls, peritoneum, mouth, pharynx and Oesophagus:- Healthy and congested. Tongue is protruded. Stomach and its contents:- Filled with undigested food particles. Small Intestine and its contents:- Contains fluid and partly digested food particles. Large intestine and its contents:- Contains gases and faecal matters. Pleurae:- Healthy and congested. Right and Left Lung:- Healthy and congested. Heart:- Left side empty. Right side is full." The evidence of P.W. 15 in respect of death of the deceased, Pinku Keot, as made to appear in his evidence, particularly, the Ext-7, the post-examination report, is as follows:-"One male dead body of average built aged approximately 25 years. Rigor-mortis present all over the body. Wounds, Position, Size and Character:- Sever cut injury on left side of neck approximately 7" length X 3" breadth X 2" depth]. A cut injury seen on left side of five albo with approximately 6" in length X 3" in breadth X 2" in depth. Severe bleeding seen on these area. Apart from that the injury could be seen. Scalp, Skull & Vertebrae:- All are healthy and congested. Membrane:- Healthy and congested. Brain and Spinal Cord:- Brain congested. Liver, Spleen, Kidneys and Bladder:- Healthy and congested. The bladder is partly filled with urine. Walls, Ribs & Cartilage:- Linear cut injury [4" X 3" X 2"] seen at the middle portion of chest. Organs of Generation, Extenal & Internal:- Healthy and intact. Walls, peritoneum, mouth, pharynx and Oesophagus:- Healthy and congested. Tongue is protruded. Stomach and its contents:- Filled with undigested food particles. Small Intestine and its contents:- Contains fluid and partly digested food particles. Large intestine and its contents:- Contains gases and faecal matters. Pleurae:- Healthy and congested. Right and Left Lung:- Healthy and congested. Heart:- Left side empty. Right side is full." Therefore, the evidence of P.W. 15, Autopsy Doctor, read together with Exts-6 and 7, leaves no doubt in the mind of the court that the cause of death of both the deceased is due to injuries sustained by them in their vital parts, i.e., neck alongwith some other parts of the body and to that effect, the P.W. 15 has specifically opined as follows:- "Opinion in respect of deceased Prem Keot- In my opinion the cause of death was shock as a result of injuries sustained by the deceased. Opinion in respect of deceased Pinku Keot- In my opinion the cause of death was shock as a result of injuries sustained by the deceased." In both the cases, it is the further evidence of the P.W. 15 that the materials Ext-1 could have caused such injuries. 10. There is no evidence on record to discard the evidence of P.W. 15 as to the cause of death of both the deceased. The learned Amicus Curiae, appearing for the accused-appellant, submitted that the Autopsy Doctor deposed in his evidence that such injuries could have been caused by other weapon also instead of the weapon allegedly used in commission of the offence. Such an opinion of the Doctor does not necessarily mean that the weapon allegedly used in this case and seized by Police (Material Ext-1) was not the weapon used in the instant case. That being so, this court is not inclined to accept such submission made by the learned Amicus Curiae, finding no evidence to discard the oral evidence of the P.W. 15 as well as his reports, vide Exts-6 and 7. Therefore, this court has accepted the evidence as to the cause of death of the deceased and the weapons used in commission of the injuries as found in the evidence of the P.W. 15. 11. Now, on a meticulous examination of the evidence on record of all the non-official witnesses, i.e., P.W. 1 to P.W. 14, it does not appear that they have witnessed the occurrence. They are all heard saying about the facts and circumstances leading to the occurrence. The prosecution relies upon the circumstantial evidence to rope the accused-appellant with the commission of the alleged offence and the learned trial court has also convicted the appellant based on circumstantial evidence. Therefore, before holding a person guilty of commission of an offence, on the basis of circumstantial evidence, let us see the law laid down by the Hon'ble Supreme Court in respect of circumstantial evidence. In Sharad Birdhi Chand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 the Apex Court laid down the following golden principles for proof of a criminal charge which solely rests on circumstantial evidence: "152. In Sharad Birdhi Chand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 the Apex Court laid down the following golden principles for proof of a criminal charge which solely rests on circumstantial evidence: "152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. V. State of Maharashtra where the to lowing observations were made "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 12. So, on the basis of such law laid down by the Hon'ble Supreme Court in Sharad Birdhi Chand Sarda (supra), let us look into the circumstantial evidence brought on record by the prosecution and to find out whether the circumstances make out a chain leading to the irresistible conclusion that it was none, but the accused-appellant who had committed the crime. 13. 13. The evidence on record makes it appear that the informant/PW 1 received the information about the commission of the crime by the accused-appellant and other co-accused from one Bubul Kurmi, examined as P.W. 11. Such evidence of P.W. 1 receives complete corroboration from the evidence of P.W. 11 as he is heard saying in his evidence that he informed the P.W. 1 about the occurrence. That apart, the P.W. 11 deposed in his evidence that he received the information from one of the deceased, i.e., Prem Keot to the effect that there was a fight in the paddy field between the accused-appellant and other co-accused with them and the deceased had requested him to inform his father about the same. 14. The evidence of PW 6 and PW 7 makes it appear that the present accused-appellant and other co-accused appeared at the police station with the weapon of offence, which was seized by the Investigating Police Officer, vide Ext-4. The seized weapon has also been exhibited in the court. But, on perusal of Ext-4, it appears that the seized weapon was seized not from the possession of the accused-appellant but from the juvenile-in-conflict with law, Sri Ajoy Keot, who has been tried separately by the jurisdictional Juvenile Justice Board. Therefore, it cannot be said that the seized weapon was seized from the possession of the accused-appellant. But, the fact remains that appearance in the police station immediately after occurrence along with co-accused is a fact appearing from the evidence on record with the only explanation that they appeared in the police station out of fear of the public outrage. 15. The evidence of PW 2 is that he saw the people of the village rushing to the place of occurrence, and on being enquired; he was told that the deceased were murdered by the accused-appellant and his brother (the juvenile facing separate trial). 16. The PW 3 is the son of the informant, i.e. one of the brother of the deceased. He also subscribed to the evidence of P.W. 1 that on receipt of information, over telephone, about the quarrel in the paddy field, he proceeded to the paddy field with his father/PW 1. While proceeding to the paddy field they saw the present accused-appellant and other co-accused coming and from them enquired as to what happened to which they replied that they had killed two persons. 17. While proceeding to the paddy field they saw the present accused-appellant and other co-accused coming and from them enquired as to what happened to which they replied that they had killed two persons. 17. It appears from such evidence, on record, that a quarrel took place between the accused-appellant and other co-accused in one side and the deceased on the other although there is no instance to indicate as to the cause of quarrel between the parties. On the other hand, there is no dispute at all that the occurrence took place in the paddy field of the deceased. It has also come out from the evidence on record that the deceased were working in their agricultural field, i.e., the place of occurrence. Therefore, the appearance of the appellant at the place of occurrence where the deceased were working, itself is a circumstance to connect the appellant with the offence. This circumstance coupled with the evidence of P.W. 1 that he had seen the present appellant and other co-accused coming with a sword and stick in their hands and their reply to the query made by the informant that they had murdered two persons are also circumstances linking the other circumstances mentioned above that it was the appellant who committed the crime. Then, another circumstance that the accused-appellant and other co-accused immediately after the occurrence appeared in the police station can be linked with the afore discussed circumstances. The reason of their such appearance before police, as explained in the statements recorded under Section 313 of the Cr.P.C., is that due to the fear of public attack they appeared in the police station on their own. Such explanation is not acceptable as there are all the circumstances, mentioned above, implicating him with the commission of the offence. 18. The most important evidence of P.W. 14 is that he saw, from a distance, the use of dagger by the appellant side in causing the injuries to the deceased persons which remains unassailed although there is a minor discrepancy as to the distance from where he could notice the occurrence taking place. This discrepancy, in the opinion of this court, is not of such nature touching the root of the case. Rather, such discrepancy is quite natural and makes his evidence reliable. This discrepancy, in the opinion of this court, is not of such nature touching the root of the case. Rather, such discrepancy is quite natural and makes his evidence reliable. It cannot be expected from a witness, observing an incident from some distance to narrate the minute to minute details of the case with photographic exactitude. Therefore, this court has to look into the evidence of P.W. 14 from the said perspective. 19. Therefore, the above circumstantial evidence, appearing in the evidence on record, in the considered view of this court, has constituted a chain to link one with the other, and refusing to accept any other hypothesis, except the one that it was none, but the accused-appellant who had committed the murder of the deceased persons. 20. From the evidence on record, it does not appear that there is pre-meditation on the part of the accused-appellant to commit the offence. Therefore, this court is of the view that the offence committed by the accused-appellant is punishable under Section 304-Part II of the IPC instead of Section 302 of the IPC. So far the fine is concerned, if it is reduced to Rs. 10,000/- from Rs. 20,000/-, and in default of payment of fine, simple imprisonment for 3 (three) months will meet the ends of justice. 21. Accordingly, the accused-appellant is convicted for offence under Section 304-Part II of the IPC and is sentenced to rigorous imprisonment for 7 (seven) years and a fine of Rs. 10,000/- and in default of payment of fine, to suffer simple imprisonment for another term of 3 (three) months. 22. The period of detention of the accused-appellant in custody, during investigation, trial and after the completion of the trial, be set off against the substantive sentence. 23. Accordingly, this jail appeal is partly allowed. 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.