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2019 DIGILAW 616 (GAU)

Ranjit Dibragede v. State of Assam

2019-05-17

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : A.M. Bujor Barua, J. 1. Heard Md. S. Islam, learned Amicus Curiae, appearing for the appellant. Heard Ms. B. Bhuyan, learned Additional Public Prosecutor for the State of Assam. The order of 03.04.2019 shows that the notice had been served on the informant respondent No.2 as per Flag-X. 2. This is an appeal against the judgment and order dated 12.07.2018 of the learned Sessions Judge, Dima Hasao, Haflong passed in Sessions Case No.09/2012, whereby the accused appellant was convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/- and in default of payment of fine, to undergo further simple imprisonment for 03(three) months. Being aggrieved, the appellant has preferred this appeal. 3. An ejahar dated 08.03.2012 was lodged by one Niren Hapila, the Gaon Bura of Khalamphu Hafilla village before the Officer-in-Charge of Diyungmukh Police Station stating that on 07.03.2012 at about 9.00 a.m., one of the villagers Ranjit Dibragede son of late Athia Dibrageda had killed his wife Lamo Dibragede with a dao and he also tried to commit suicide. Accordingly, the accused appellant was charged of having committed an offence punishable under Section 302 of the IPC for killing his wife Lamo Dibragede with a dao on 07.03.2012 at about 9.00 a.m. 4. PW-1 the informant in his deposition stated that the accused had killed his wife Lamo Dibragede with a dao. But at the same time he also stated that he had not seen the incident. He deposed that after hearing about the incident, he immediately went to the place of occurrence and found the dead body of the deceased. He also deposed that the accused attempted to flee away from the spot and was caught by the local villagers and the villagers after apprehending the accused had snatched a dao from his hand. In cross examination, PW-1 stated that he reached the place of occurrence after half an hour of the incident and that he did not see the dao in the hand of the accused. 5. PW-2 Dr. In cross examination, PW-1 stated that he reached the place of occurrence after half an hour of the incident and that he did not see the dao in the hand of the accused. 5. PW-2 Dr. S. Nampui, Medical and Health Officer of Haflong Civil Hospital stated that the following injuries were found in the body of the deceased:- (i) Lacerated injury on left side of the neck with complete amputation of the right wrist joint; (ii) Fracture of left clavicle and left first rib; (iii) Fracture of right radius and ulna bone; (iv) Vessels of the neck lacerated. 6. PW-3 in his deposition stated that the mother of the deceased told him about the incident and the police was also informed and when the police came to the place of occurrence, he went there and saw the dead body and that the accused was caught. He further deposed that the police seized one dao with a bamboo handle, which was exhibited as Exhibit-2. He further deposed that the accused had killed his wife Lamo Dibragede and he had seen the injuries on the body of the deceased. In cross examination, PW-3 stated that he had reached the place of occurrence after about 10 minutes of the incident and further deposed that he was not present at the place of occurrence when the incident took place. PW-3 also deposed in cross examination that when he saw the accused, there was a stick in his hand and he was covered with blood stain all over his clothing. He also deposed that two or three days prior to the incident, the accused wanted to commit suicide and that he did not know about any illness that the accused may have been suffering and also that sometime the accused used to became frightened. 7. PW-4 deposed that he did not see the incident, but later on came to know about it and had heard that the accused killed his wife with a dao. In his cross examination, he stated that after taking alcohol the accused behaved like a mad person. 8. PW-5 also stated that one day in the morning hours, he had heard that the accused had killed his wife. 9. In his cross examination, he stated that after taking alcohol the accused behaved like a mad person. 8. PW-5 also stated that one day in the morning hours, he had heard that the accused had killed his wife. 9. PW-6 the Investigating Officer had stated that he had found the accused person at the place of occurrence and he had learnt that the accused attempted to commit suicide after killing his wife. He also deposed that the dao that was used by the accused in killing his wife was also seized. PW-6 further deposed that on 07.03.2012 he was the Officer-in-Charge of Diyungmukh Police Station and on that day around 9.30 a.m. he received information over phone from one Mahajan Dimasa that one person had killed his wife. Accordingly, he made the GD Entry No.103 dated 07.03.2012 and left for the place of occurrence. There he met Niren Hapila, the village Headman and having been accompanied by him, had visited the place of occurrence. Upon arriving at the place of occurrence, he had found the wife of the accused Ranjit Dibragede was lying dead on the ground. In his statement under Section 313 Cr.P.C the accused apart from a simple denial that he is innocent and had not killed his wife, had not made any further statement. 10. By the judgment and order dated 12.07.2018, the learned Sessions Judge, Dima Hasao in Sessions Case No.09/2012 had convicted the accused appellant by invoking the provisions of Section 106 of the Evidence Act of 1872. Section 106 of the Evidence Act of 1872 is applicable in such cases where the accused may have been last seen with the deceased or he may have been found at the place of occurrence immediately after the incident had taken p lace or may be as propounded by the Supreme Court in a situation where the wife dies in the same room where the husband also normally resides. 11. In the instant case, we take note of as per the evidence led by the prosecution, the accused was seen at the place of occurrence after 10 minutes as per the version of PW-3, who himself had reached the place of occurrence after 10 minutes and after half an hour as per the version of PW-1, who himself had reached the place of occurrence half an hour later of the incident. There is no evidence to indicate that the accused was seen near the deceased immediately after the occurrence so as to invite an explanation from the accused as to under what circumstance the deceased had died by invoking the provisions of Section 106 of the Evidence Act of 1872. In the absence of there being any evidence that the accused was seen at the place of occurrence near the deceased immediately after the occurrence, we are of the view that the burden to explain as to how the deceased had died, does not shift to the accused appellant by invoking the provisions of Section 106 of the Evidence Act of 1872. 12. As the accused appellant had been convicted by invoking the provisions of Section 106 of the Evidence Act of 1872 and we having arrived at a conclusion that the provision of Section 106 of the Evidence Act of 1872 would not be applicable in the facts and circumstance of the present case, where there is no evidence to show that the accused was seen near the deceased at the place of occurrence immediately before or after the occurrence took place, the conviction of the accused appellant as per the judgment and order dated 12.07.2018 of the learned Sessions Judge, Dima Hasao in Sessions Case No.09/2012 under Section 302 IPC and the sentence of rigorous imprisonment for life and fine of Rs.1000/- and in default thereof to undergo further simple imprisonment for three months is accordingly set aside. 13. The accused appellant is set at liberty forthwith, subject to not being required for any other offence. 14. Send back the LCR along with a copy of this judgment immediately. 15. Before parting with the record, we appreciate the valuable service rendered by Md. S. Islam, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/- as legal fees be paid to him by the High Court Legal Service Committee upon production of a copy of this judgment and order.