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2019 DIGILAW 717 (GAU)

Khagen Patar @ Talai Patar v. State of Assam

2019-06-11

ACHINTYA MALLA BUJOR BARUA, SONGKHUPCHUNG SERTO

body2019
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. AM Bora, learned senior counsel, being the Amicus Curiae for the accused appellant. Also heard Mr. T.K. Mishra, learned Additional Public Prosecutor for the State authorities. None appears for the respondent No. 2 inspite of notice being served and accepted by the order dated 27.05.2019. 2. An ejahar dated 13.05.2014 was submitted by Sri Jitu Pator before the Officer-in-charge of Raha Police Station inter alia stating that at about 10.00 AM on 12.05.2014, the accused person Khagen Pator @ Sri Talao Pator had trespassed into his compound without any reason and scolded his mother Satya Pator @ Chinta Pator aged about 52 years with filthy language and thereafter assaulted her with a brick causing severe injury to her. 3. It was stated that the mother of the informant was admitted immediately to hospital, but, later on, she succumbed to her injuries while undertaking treatment. Accordingly, the accused appellant was charged of having committed an offence punishable under Section 302 of the IPC read with Section 447 of the same Code on the allegation that he had intentionally caused death of Satya Pator and had trespassed into their compound with the intention to commit the offence. 4. PW-1 the informant in his deposition stated that at about 10.00 AM on the given day his elder sister Munki Das informed over phone that the accused Khagen Pator had assaulted their mother on her head with a brick and caused severe injury. Upon receipt of the information, he arrived at the place occurrence at around at around 3.00 pm and found that his mother was dead in the hospital. In cross, the witness stated that he had not seen the incident. 5. PW-2 Moon Das, the person who had informed the PW-1 about the incident over phone in her deposition stated that at around 10.00 AM on the given day, she took her mother to the hospital for the purpose of giving her an injection as she was bitten by a dog. 5. PW-2 Moon Das, the person who had informed the PW-1 about the incident over phone in her deposition stated that at around 10.00 AM on the given day, she took her mother to the hospital for the purpose of giving her an injection as she was bitten by a dog. She stated that after returning, while her mother was inside the compound, the accused who was outside the boundary had a quarrel with her and the witness after asking the accused not to quarrel had proceeded to the hospital along with her daughter, but after going about 50-70 meters she heard a sound and upon returning back saw that her mother was lying in the courtyard and she was bleeding from her nose and mouth and the scalp was broken and the brain substance came out. She further deposed that she saw the accused was running away from near her mother and that he had thrown away the piece of brick. She also stated that the piece of brick that was seen in the courtyard was the one which was used by the accused on the given day. In cross, she stated that on seeing the piece of brick lying near her mother she suspected that the accused had assaulted her mother with that brick. To a suggestion, she stated that it is not true that she had not made a statement that on the day of the occurrence the accused was altercating with her mother and caused injury to her by assaulting with a brick and that when she went there, the accused threw the brick and ran away from near her mother. In cross, PW-2 states that it is true that she did not see for herself that the accused had assaulted her mother. 6. PW-6 in his deposition had stated that on the day of occurrence he was at home and he used to stay in the house along with his grandmother. He stated that the incident took place around 10 AM and upon hearing some sound outside, he came out of his house and saw that his grandmother was lying in the verandah. The witness further deposed that the accused was also in the verandah and on seeing him he had fled away. He further stated that brain substance came out from the head of his grandmother. The witness further deposed that the accused was also in the verandah and on seeing him he had fled away. He further stated that brain substance came out from the head of his grandmother. In cross PW-6 stated that after coming out from inside the house he had seen nothing besides his grandmother. He also stated in cross that his stepmother Moon Das i.e. PW-2 and his father arrived at the place of occurrence after half an hour of the incident. In cross PW-6 also stated that he was tutored in his house as to what he has to say about the incident although later he stated that he was not tutored. In cross to a suggestion he stated that he had not stated before the police that on the day of the incident upon hearing some sound outside, he came out and saw that his grandmother was lying injured and that brain substance was coming out from head and further that the accused was also at the verandah and that a piece of brick was lying beside his grandmother. 7. PW-10 the Investigating Officer in his cross-examination had stated that PW-6 had not stated before him that he stayed in the house of his grandmother and that he found the accused in the verandah and that he also found the brick lying near his grandmother. 8. PW-3 Dr. Pranjal Jyoti Bora, who had conducted the post mortem of the deceased had described the following injuries in his deposition: "A pale female body wearing white chadar, Blouse and Pink Peticoat with black eye both side, swollen face dressing gause soaked in blood in head eye closed. 1½ feet long grey hair mouth closed. Wound found: (1) Head injury read coloured bluish around the injury right temporal lacerated fresh injury, inverted V type 15 cm long, skin avulsion with depressed fracture of the same area. The depressed fracture was 20 long, 2/3 wide exposing brain matter. (2) Both sided black eye (3) Swollen face more in upper extremity. There was no ligature mark in the neck. Membrane of the brain was torn and bleeding present." 9. According to the opinion of the Doctor, the death was caused due to hemorrhage from brain injury caused by blunt weapon. (2) Both sided black eye (3) Swollen face more in upper extremity. There was no ligature mark in the neck. Membrane of the brain was torn and bleeding present." 9. According to the opinion of the Doctor, the death was caused due to hemorrhage from brain injury caused by blunt weapon. When we look into the injuries that were found on the deceased the same stands corroborated and consistent with the evidence rendered by PW-2 and PW-6 that there was an injury caused on the backside of the head and that brain substance came out. But when we examine the evidence on record a question would arise as to who had caused such injury on the deceased. 10. Other than the aforesaid, the evidence of the other witnesses are found not to be relevant for determining as to who had caused the injuries on the deceased, inasmuch as, as per the said witnesses, all of them had reached the place of occurrence after the incident had taken place. 11. PW-2 in her evidence had stated that there was a quarrel between the accused and the deceased, but thereafter she proceeded to the hospital along with her daughter and when she went about 50 to 70 meters she heard a sound and thereafter returned back and saw that her mother was lying in the courtyard with injuries on her head. The witness also stated that she saw the accused running away from near her mother. 12. As regards the evidence rendered by PW-2, we take note of that PW-6 who was admittedly in the house of the deceased had stated that PW-2 and her husband arrived at the place of occurrence after about half an hour of the incident. Secondly, PW-2 has been confronted in cross that it is not a fact that on the day of the occurrence she had seen the accused person running away from near her mother. 13. PW-11, the Officer-In-Charge of Raha Police Station who had visited the place of occurrence upon receipt of the ejahar in his cross examination stated that PW-2 Moon Das had not stated before him that prior to the incident, the accused was altercating with the deceased. 13. PW-11, the Officer-In-Charge of Raha Police Station who had visited the place of occurrence upon receipt of the ejahar in his cross examination stated that PW-2 Moon Das had not stated before him that prior to the incident, the accused was altercating with the deceased. He further deposed in cross that PW-2 also did not state before him that on hearing the sound she went back to her home and saw the accused person running away from near her mother after throwing the brick. We also verified the statement of the PW-2 under Section 161 Cr.P.C. and from it, it is evident that PW-2 neither stated anything about the quarrel proceeding the incident nor she had stated anything that she had stated to have seen the accused running away from the place of occurrence. The aforesaid aspect coupled with evidence of PW-6 that PW-2 had reached the place of occurrence after half an hour of the incident leads further credence to disbelieve the said witness as regards her deposition regarding the quarrel between the accused and the deceased proceeding the incident and also that she had seen the accused running away from the place of occurrence. 14. PW-6 in his deposition had stated that he used to stay with his deceased grandmother and was at home when the incident took place. He also stated that the incident took place at 10 A.M. and hearing some sound outside he came out of the house and saw that his grandmother was lying in the verandah. The said evidence clearly shows that PW-6 had not seen the occurrence as to how the incident had taken place, but the accused was seen at the verandah where his grandmother was lying and had also seen the accused having fled away. But in cross, PW-6 had stated that after coming out from inside the house, he had seen none besides his grandmother which shows that the accused himself contradicted his statement in evidence on examination-in-chief that he had seen the accused near the deceased in the verandah. To a suggestion, he also denied to have stated before the police that the accused was seen by him at the verandah and that a piece of brick was also lying besides his grandmother. 15. To a suggestion, he also denied to have stated before the police that the accused was seen by him at the verandah and that a piece of brick was also lying besides his grandmother. 15. PW-10, the Investigating Officer in his cross had stated that PW-6 Akash Deuri had not stated before him that he stayed in the house of the grandmother and that he had found the accused in the verandah and further that he found the brick along with his grandmother. 16. We have also verified the statement of the PW-6, Akash Deuri recorded under Section 161 Cr.P.C. wherein no statement has been found to have been made by him that he had seen the accused in the verandah near the deceased after the occurrence. As PW-2 and PW-6 are the only two witnesses based upon whose evidence the prosecution seeks to make a case of circumstantial evidence against the accused to the extent that the accused was seen near the deceased in the verandah and the evidence on examination-in-chief of both the PW-2 and PW-6 having been found to be an improvement beyond what they had stated earlier, we are inclined to disbelieve the evidence on examination-in-chief of both the PW-2 and PW-6 as regards the accused having been seen near the deceased in the verandah immediately after the occurrence. Further the evidence rendered by PW-2 as regards a quarrel between the accused and the deceased prior to the incident also having been found to be an improvement beyond what was stated earlier, the same also cannot be taken into consideration to link up the accused with the occurrence on the basis of he having been last seen with the deceased. 17. In view of the above, we are of the view that the prosecution has failed to prove its case beyond all reasonable doubt that it was the accused alone who had committed the offence of causing the death of the deceased Satya Pator @ Chinta Pator. Accordingly, the conviction of the accused appellant under Sections 302/447 of the IPC as per the judgment and order dated 20.04.2016 of the learned Additional Sessions Judge No. 2, Nagaon in Sessions Case No. 20/2015 and sentencing the accused appellant to undergo rigorous imprisonment for life with fine of Rs. 5000/- in default thereof a further term of rigorous imprisonment for 1(one) year are accordingly set aside. 18. 5000/- in default thereof a further term of rigorous imprisonment for 1(one) year are accordingly set aside. 18. The accused appellant is set at liberty forthwith subject to being not required in connection with any other offence. 19. Appeal stands allowed. 20. Before parting with the record, we appreciate the valuable service rendered by senior counsel Mr. Angsuman Bora, 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. 21. Send back the LCR.