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2019 DIGILAW 1143 (GAU)

Pabitra Ray v. State of Assam

2019-10-22

MANISH CHOUDHURY, MIR ALFAZ ALI

body2019
JUDGMENT : 1. Heard Mr. J.C. Roychoudhury, learned amicus curiae appearing for the appellant and Ms. S. Jahan, learned Additional Public Prosecutor, Assam for the respondent State. 2. This jail appeal is preferred against the judgment and order dated 29.8.2017 passed by the learned Sessions Judge, Kokrajhar in Sessions Case No. 81/2016. By the said judgment and order, the appellant was convicted under section 302, Penal Code, 1860 (‘IPC’) and sentenced to undergo rigorous imprisonment for life with fine of Rs.5,000, in default to payment of fine, further undergo simple imprisonment for 3 months. 3. The case of the prosecution, as unfolded from the ejahar lodged on 30.3.2017 by Smt. Mangli @ Monumati Roy (PW-1), was that at around 9.30 pm on the previous night, i.e., on 29.3.2017, her father, viz., Pabitra Ray, the accused-appellant, caused injury to her husband Loisan Ray by stabbing him with a dagger on the road in front of her father's house. Though her husband was immediately taken to Kokrajhar hospital for treatment, he breathed his last at around 11.30 p.m. on the same night while undergoing treatment. On receipt of the said ejahar, the Officer in-Charge (O/C), Fakiragram Police Station registered a case being Fakiragram PS Case No. 11/2007 under section 302, IPC and entrusted investigation to one Sri Jitish Barman, S.I., Fakiragram Police Station (PW-6). 4. On completion of investigation, the Investigating Officer (I/O) (PW-6), Sri Jitish Barman submitted the charge sheet finding a prima facie case against the accused-appellant under section 302, IPC. On submission of the charge sheet, the learned Chief Judicial Magistrate, Kokrajhar finding the case to be Sessions triable one, committed the case to the Court of Sessions, Kokrajhar for trial. On receipt of the case records, Sessions Case No. 81/2016 was registered and appearance of the accused-appellant was caused before the learned Sessions Judge. Upon hearing the learned counsel for the parties, learned Sessions Judge framed the charge under section 302, IPC against the accused-appellant. On charge being explained to him, the accused-appellant pleaded not guilty and claimed to be tried. During the course of trial, the prosecution in order to bring home the said charge against the accused-appellant, examined as many as 6 number of witnesses. Thereafter, the statement of the accused-appellant was recorded under section 313, Cr.PC, and the plea of the accused-appellant was that of denial. No evidence was adduced by the defence. During the course of trial, the prosecution in order to bring home the said charge against the accused-appellant, examined as many as 6 number of witnesses. Thereafter, the statement of the accused-appellant was recorded under section 313, Cr.PC, and the plea of the accused-appellant was that of denial. No evidence was adduced by the defence. On conclusion of trial, the learned Sessions Court passed the impugned judgment and order against the accused-appellant, as has been indicated above. 5. Mr. Roychoudhury, learned amicus curiae by referring to the testimonies of the prosecution witnesses and other materials on record, has strenuously submitted that findings of the conviction recorded against the accused-appellant is perverse in the sense that there was no evidence on record to the effect that the accused-appellant started the quarrel and was the perpetrator of the alleged crime of stabbing the victim, who was his son-in-law and there was no previous enmity between them. There is also no evidence on record to show that he attacked the victim first. There are glaring inconsistencies between the evidence of PW-1 and PW-2. Though from the evidence of PW-1 and PW-2 it was revealed that there was a quarrel but the same itself could not be held to be sufficient to record a finding of conviction by the learned trial court. 6. Learned Addl. PP, on the other hand, has submitted that though there was no eye-witness as to how the victim had suffered the wound, all the circumstances would go to show conclusively that the accused-appellant was involved in the commission of the offence. It is submitted by her that the accused-appellant was followed by the victim out of the house but it was the victim who had returned back with a knife being pierced in his abdomen. There is no other conclusion that can be arrived at other than what had been arrived by the learned trial court. 7. We have considered the submissions advanced by the learned counsel for the parties and also perused the materials on records available in the case record of Sessions Case No. 81/2006, in original. 8. From the evidence of PW-5, Dr. 7. We have considered the submissions advanced by the learned counsel for the parties and also perused the materials on records available in the case record of Sessions Case No. 81/2006, in original. 8. From the evidence of PW-5, Dr. Kandarpa Kumar Ramchiary, who was the Medical & Health Officer, R&B Civil Hospital, Kokrajhar and who exhibited the post-mortem report (Exhibit-4), prepared by him after carrying out the post-mortem examination, it is noticed that there was a cut injury with sharp and pointed edges in the umbilical region of the victim and it was opined that the cause of death was hemorrhagic shock due to penetrating injury in the abdomen. 9. PW-1, Smt. Mangli @ Monumoti Roy, who was also the informant, had deposed before the court that on the day of the incident when she heard a quarrel between her parents, she came to her paternal house along with her husband, i.e., the victim. Her husband prevented her father from assaulting her mother and in that process, her father also assaulted her husband. Thereafter, her father went out of the house and her husband followed suit. When after sometime her husband came back to the house, a dagger was found pierced in his abdomen. When she asked her husband about the incident he did not give any reply. Thereafter, her husband was taken to the hospital at Kokrajhar for treatment where he breathed his last. At that stage, the said witness was declared hostile by the prosecution and she was cross-examined by the prosecution. On so cross-examined, she denied about stating anything about her father assaulting her husband. She in her cross-examination, had further deposed that she did not see her husband being assaulted. 10. PW-2, Manju Roy, in her testimony, had stated that on the day of the incident, her husband, i.e., the accused-appellant and her son-in-law, i.e., the victim picked up a quarrel while consuming liquor. Thereafter, her husband went out of the house. She further stated that one Bhadu said to her son-in-law as to why he had assaulted the accused-appellant. Thereafter, her son-in-law also went out of the house and when he returned home after sometime, he asked to take the knife out that was found piercing his abdomen and, accordingly, Bhadu took out the knife. PW-2 feigned ignorance as by whom her son-in-law had been stabbed. Thereafter, her son-in-law also went out of the house and when he returned home after sometime, he asked to take the knife out that was found piercing his abdomen and, accordingly, Bhadu took out the knife. PW-2 feigned ignorance as by whom her son-in-law had been stabbed. At that stage, the prosecution declared this witness also to be a hostile one. 11. PW-3, Sushil Roy did not say anything about the incident. PW-4, Bijen Roy had stated that though he signed Exhibit-3, the seizure list about the knife, he denied that he had seen any knife. This witness too was declared hostile by the prosecution. 12. On a combined reading of the evidence of the prosecution witnesses it has emerged that in the house of the accused-appellant, apart from the alleged victim, the accused-appellant, PW-1 and PW-2, one Bhadu was also present at the time of the alleged incident. PW-1 and PW-2 had stated that after a quarrel amongst them, the appellant went out of the house. It was at that point of time Bhadu asked the victim as to why he had assaulted the accused-appellant. After sometime, the victim also went out of the house. As per the version of PW-1, the victim went out of the house but when after sometime he came back to the house, a knife was found to have pierced in his abdomen. After so returning, the victim asked them to take out the knife which stood pierced in his abdomen. Accordingly, Badhu took out the knife from his abdomen. From the said evidence, it is manifested that the victim was in a position to speak when he came back to the house from outside. When PW-2 asked him about the incident the victim did not give any reply. PW-1 had stated that she lodged the FIR against the appellant out of suspicion. 13. The prosecution did not exhibit the knife. From the evidence of PW-6, it is noticed that the said kinfe was also not sent for chemical examination. PW-6 also did not prove the seizure list by whom the knife was seized. Though it is submitted on behalf of the prosecution that circumstances indicated that there could be no one but only the accused-appellant who could have inflicted the injury on the victim, we having going through the evidence on record, are not persuaded to subscribe to the said submission. Though it is submitted on behalf of the prosecution that circumstances indicated that there could be no one but only the accused-appellant who could have inflicted the injury on the victim, we having going through the evidence on record, are not persuaded to subscribe to the said submission. Though it has emerged that the appellant came out of the house after a quarrel with his other family members and the victim also came out of the house in order to persuade him to come back to the house, nobody had seen the accused-appellant assaulting the victim. The victim also when he came back to the house after sometime with a knife pierced in his abdomen, did not tell anything to the effect that it was the accused-appellant who had stabbed him with the knife, though from the evidence it is revealed that he was in a position to speak. He had only asked the persons present in the house to take out the knife from his abdomen which, however, was accordingly taken out before him being taken to the hospital for treatment. 14. The victim was apparently in a position to speak when he returned back to his house but he did not tell anything about the person who had put the knife in his abdomen. From the evidence it is also not clear as after what time period, the victim after going out, had returned home. No evidence was adduced about the duration of time that had elapsed before the appellant leaving the house and the victim leaving the house. When the victim himself did not implicate the appellant, we are not persuaded to hold that the chain of circumstances had unerringly pointed towards the appellant as the sole perpetrator of the crime. There is no evidence as regards the place where the alleged incident of attack by knife upon the victim had taken place and as to how the knife pierced the abdomen of the victim. The incident had occurred at night. It is also possible that under the cover of darkness, somebody else had attacked the victim and the victim failed to recognise the assailant. The prosecution has not been able to rule out any such possibility. 15. The declaration of a witness to be a hostile one does not ipso facto merit rejection of the entire evidence. It is also possible that under the cover of darkness, somebody else had attacked the victim and the victim failed to recognise the assailant. The prosecution has not been able to rule out any such possibility. 15. The declaration of a witness to be a hostile one does not ipso facto merit rejection of the entire evidence. The portion of evidence, which helps the court arriving at a judgment, may be made admissible, subject to all scrutiny and the court has to be extremely cautious in accepting only such portion of the evidence which is consistent with the case of the prosecution or the defence. The practice is to contradict a witness with his earlier statement and parts thereof, after declaring him hostile and then to use the record of the earlier statement as substantive evidence. But in the present case, no such effort was made by the prosecution side to prove the earlier statements of the witnesses who were found hostile to their cause. Thus, the earlier statements of the hostile witnesses cannot be treated as substantive piece of evidence. 16. In view of the aforesaid discussions, this court is of the considered view that the prosecution side has not been able to prove their case beyond all reasonable doubts. Hence, the accused-appellant deserves to be given the benefit of doubt and accordingly, is entitled to be acquitted on that count. Thus, the judgment and order of conviction and sentence passed by the learned trial court is found to be not sustainable and accordingly, the same is set-aside. The accused-appellant shall be set at liberty forthwith, if he is not required in connection with any other case. 17. Appreciating the assistance rendered by Mr. J.C. Roychoudhury, learned amicus curiae, we hereby provide that he will be entitled to professional fees of Rs.7,500. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Mr. Roychoudhury. 18. As the informant (PW-1) has lost her husband, it is directed that the concerned District Legal Service Authority shall consider providing adequate compensation to her as entitled under the prevalent Victim Compensation Scheme. 19. Send down the LCR along with a copy of this judgment.