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2018 DIGILAW 756 (GAU)

BIPIN GHATOWAR v. STATE OF ASSAM

2018-05-08

AJIT SINGH, PRASANTA KUMAR DEKA

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JUDGMENT/ORDER : Ajit Singh, J. Appellant - Bipin Ghatowar has been convicted under Section 302/34 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5000/- with default stipulation. Another co-accused - Kashinath Ghatowar, who was brother of the appellant, died during the trial, and as such, the prosecution case stood abated against him. 2. The victim of the incident was Bharat Tanti, aged about 40 years. He and appellant lived as neighbors in the same Pawai Tea Estate, District Tinsukia. 3. According to the prosecution case, Bharat was father of Shyam (PW-1) and Rupesh (PW-6). On the night of 29.8.2010, both Shyam and Rupesh along with Kashinath attended the puja ceremony organized in the house of Bikram Singh. However, on way, while returning during midnight, Kashinath had an altercation with Shyam and Rupesh. And as Kashinath reached his house, he asked Shyam and Rupesh to wait outside. Kashinath then went inside and came out with a sharp edged weapon. Along with him, his younger brother appellant also came out armed with a lathi. Immediately thereafter Kashinath and appellant tried to assault Shyam and Rupesh but they ran away. Kashinath and appellant also ran after them but could succeed in reaching them. On hearing the commotion, Bharat went to the house of Kashinath and requested him not to raise hue and cry. But Kashinath and the appellant retaliated by causing fatal injuries to Bharat with their respective weapons as a result of which he died on the spot. The incident took place in front of the house of Kashinath. Ejahar of the incident (First Information Report) was lodged by Shyam at Police Station Digboi. The Station Officer of Police Station-Cheniram Pagag (PW-11) immediately rushed to the place of occurrence. There he prepared the inquest report of the dead body in the presence of Ganesh Chetry (PW-7) and Atish Tanti (PW-5). He also arrested the appellant from the house of one Sanatan Gowala where he was hiding. He then seized one lathi Exhibit 2 pursuant to the statement of appellant. Exhibit 2 is the seizure memo of lathi. Manoj Kumar Singh (PW-8) and Bagadhar Mahanand (PW-9) are witnesses to the seizure of lathi. Later, Kashinath also surrendered at the Police Station whereafter he was arrested. 4. Dr. Jayanta Bhattacharjee (PW-10) conducted the post mortem examination on the dead body of Bharat. Exhibit 2 is the seizure memo of lathi. Manoj Kumar Singh (PW-8) and Bagadhar Mahanand (PW-9) are witnesses to the seizure of lathi. Later, Kashinath also surrendered at the Police Station whereafter he was arrested. 4. Dr. Jayanta Bhattacharjee (PW-10) conducted the post mortem examination on the dead body of Bharat. He found the following injuries on the dead body of Bharat :- One sharp cut injury over the lower part of nose including left chin 5 cm long x 2 cm deep x 1 cm broad. One sharp cut injury on the upper part of nose 4 cm long x 0.5 cm broad x 1.5 cm deep, involving skin and nasal cartilage. One lacerated injury on the right occipital region of scalp 2.5 cm long x 0.5 cm broad x 1.5 cm deep. One linear bruise at right lower part of chest at lateral aspect 2 cm long x 0.5 cm broad. Besides, the doctor also found a fracture in skull, lacerated injury on the occipital area of brain, bruise at right lower lateral aspect of thoracic wall, fracture of 10th, 11th and 12th ribs, rupture on right kidney having profuse hemorrhage resulting into abdomen peritoneum filled with blood. The doctor, in his post mortem examination report Exhibit 3, confirmed that Bharat died due to injuries caused to him by sharp edged and blunt weapon. 5. During trial, the appellant abjured his guilt and pleaded false implication. But the trial court essentially relying upon the evidence of sole eye witness - Raimoni Tanti (PW-3) convicted and sentenced the appellant as aforesaid. The trial court also relied the Post mortem examination report. 6. It is argued on behalf of the appellant that the trial court committed an illegality in basing conviction on the evidence of sole eye witness Raimoni, more particularly, because she is highly interested being the widow of Bharat. The learned Additional Public Prosecutor, Assam, on the other hand, defended the conviction and sentence of the appellant as passed by the trial court. 7. As mentioned above, the conviction of the appellant is based on the sole testimony of Raimoni. She is widow of Bharat. According to Raimoni, on the night of incident, she had accompanied her husband Bharat to the house of Kashinath hearing hue and cry. 7. As mentioned above, the conviction of the appellant is based on the sole testimony of Raimoni. She is widow of Bharat. According to Raimoni, on the night of incident, she had accompanied her husband Bharat to the house of Kashinath hearing hue and cry. She further says that when Bharat asked not to raise hue and cry, the appellant assaulted him with a lathi and Kashinath caused injuries to him with a dao. This witness then says that seeing the assault, she screamed and fainted on the spot. In her cross examination, she candidly admitted that but for her and Bharat no one was present when the assault was made and as she had fainted, she was brought to Pawai hospital and that she came to know about the death of Bharat on the following morning. But, the very presence of Raimoni at the place of occurrence and seeing the incident, in our considered opinion, is doubtful. We say so because when her own son-Shyam, who was the informant and aware of the occurrence from its very inception, has deposed that on that night when he was coming home with Rupesh, an altercation took place with Kashinath, who was in a drunken state, and reaching his house Kashinath tried to assault them with a dao alongwith his brother-the appellant. Shyam fled away and later the appellant and Kashinath killed his father Bharat, who was in his house. During his cross-examination he deposed that he was not aware as to how his father died and his family members could only say about it. He has hardly made any whisper that his mother-Raimoni-accompanied his father to the house of the appellant. Had Raimoni accompanied Bharat and had become unconscious, Shyam would have definitely said so not only in his First Information Report, but also before police during investigation and in the court, too. 8. Gayatri Tanti (PW-2) - the niece of Bharat-had deposed that when villagers informed her about the occurrence having taken place in the house of the appellant, she went there and saw the dead body of Bharat. She was told that the appellant and Kashinath committed his murder. Thus, her evidence is also hearsay and does not inspire confidence. During her cross-examination, she testified that when she reached the house of Kashinath, she found one daughter of Kashinath there and the appellant was not present. She was told that the appellant and Kashinath committed his murder. Thus, her evidence is also hearsay and does not inspire confidence. During her cross-examination, she testified that when she reached the house of Kashinath, she found one daughter of Kashinath there and the appellant was not present. She admitted that the appellant used to reside separately in another quarter of the tea estate which was at five minutes walking distance from the house of Kashinath and the occurrence took place in the house of Kashinath. It is her further testimony that the dead body of Bharat was lying in the verandah of the house of Kashinath. She has also not deposed that Raimoni accompanied Bharat to the house of the appellant. She being a close relative of Bharat would have definitely said so, had Raimoni actually accompanied Bharat and had seen the occurrence, but she has also kept mum in this regard. 9. Similarly, another niece of Bharat-Rupa Goala (PW-4) has deposed that while coming from puja, her brother Rupesh met Kashinath who chased him. Rupesh fleeing for life entered her house and then she saw Kashinath with a dao and the appellant with a lathi. Later on, she could learn that Bharat had been killed. In her cross-examination, she however admitted that she did not know as to who killed Bharat. Therefore, her testimony is of no consequence. Even this witness, who is a close relative of Bharat, is silent as to whether Raimoni accompanied him and in fact had seen the occurrence. 10. Another nephew of Bharat - Atish Tanti (PW-5) has deposed that he could know from Raimoni that the appellant and Kashinath killed Bharat and he did not see the occurrence and as to who assaulted Bharat. Thus, his evidence is also hearsay and most interestingly he also did not say that Raimoni accompanied Bharat and saw the occurrence. 11. Similarly, Rupesh also did not state that Raimoni saw the occurrence. His testimony is that when he was chased by Kashinath with a dao, he fled and entered the house of his sister-Rupa-after which he fell unconscious. He does not know as to who took him to the hospital and when he regained his senses, he could learn that his maternal uncle Bharat had been killed and this fact was told to him by Raimoni. 12. He does not know as to who took him to the hospital and when he regained his senses, he could learn that his maternal uncle Bharat had been killed and this fact was told to him by Raimoni. 12. Therefore, it is crystal clear that not a single witness, who are also close relatives of Bhrarat, has said that Raimoni had accompanied Bharat and saw the appellant assaulting him. Raimoni is widow of Bharat and therefore she is an interested witness. So her testimony is to be weighed with utmost caution when it comes to convicting the appellant on the basis of her sole testimony. While appreciating her testimony as an eye witness, we fail to convince ourselves that she had actually seen the occurrence. Her testimony is not corroborated by other witnesses and as such is not safe to rely on it completely. Her statement before police is also evasive where she stated that both Kashinath and the appellant assaulted Bharat with lathi and dao without explaining as to who assaulted with what weapon whereas her testimony in the court is quite elaborate and gives a vivid description as to who assaulted with what weapon which seems to be an improved version of her earlier statement. Therefore, we have reasonable doubt on the veracity of her evidence. 13. As regards seizure of the lathi from the house of the appellant at his instance, we find that the same is also doubtful. Both the seizure witnesses-Manoj Kumar Singh and Bagadhar Mahanand-have admitted that their signatures were taken by the police in blank papers. Manoj Kumar Singh has deposed that police produced the lathi from their vehicle and asked him to sign when he was in his shop whereas Bagadhar Mahanand has deposed that his signature was obtained by police in the blank paper after two days of the occurrence and he did not know from where the police seized that lathi. Besides, the lathi was also not exhibited and proved during the trial. As such, the seizure of the lathi at the instance of the appellant as well as use of it by the appellant is not proved beyond reasonable doubt. 14. Besides, the lathi was also not exhibited and proved during the trial. As such, the seizure of the lathi at the instance of the appellant as well as use of it by the appellant is not proved beyond reasonable doubt. 14. Lastly, merely because the appellant could not explain the presence of dead body in the compound of Kashinath shall not make him guilty more so when it is the evidence on record that he used to reside in a separate quarter which was at a little distance from the house of Kashinath-the place of occurrence. As such the appellant was also not expected to explain as to how the dead body of Bharat was lying in the compound of his elder brother-Kashinath. Neither any blood stained cloth of appellant was seized by the police nor the lathi was sent to forensic laboratory to relate the appellant with the crime nor was any irrefutable evidence adduced to show that the weapon of assault was recovered from the house of the appellant or the same was used for committing the crime. Therefore, in our considered view, the prosecution has failed to prove the charge against the appellant beyond reasonable doubt and he deserves the privilege of the benefit of doubt. 15. For these reasons, we disagree with the findings of the trial court and set aside the impugned conviction and sentence. We hold that the appellant not guilty of the charged offence. He is therefore acquitted and is directed to be released forthwith. 16. The appeal is accordingly allowed.