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2020 DIGILAW 162 (GAU)

Bipul Ghatuar v. State Of Assam

2020-02-07

MIR ALFAZ ALI, S.HUKATO SWU

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Ms. S Kanungoe, learned Amicus Curiae appearing for the appellant and Ms. S Jahan, learned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 19.01.2017 passed by the learned Sessions Judge, Golaghat in Sessions Case No.148/2014 IPC whereby the appellant was convicted under section 302 IPC and sentenced to Rigorous Imprisonment for life and fine of Rs.15,000/- with default stipulation. 3. As per the prosecution case, on 13.11.2012, at about 6.30 PM, there was a fight between the accused appellant and deceased Mohendra and since then deceased Mohendra was missing. On 17.11.2012, the body of the deceased Mohendra was seen in a pond near the garden by one employee of the garden and therefore, it was suspected that the deceased was killed by the appellant. An FIR was lodged by Pw-6, the father of the deceased on the basis of which Golaghat PS Case No.751/2012 was registered under section 302/201 IPC. During investigation, police recovered the body, prepared inquest, examined the witnesses and send the body for post-mortem examination. Dr. Prodip Kumar Medhi (Pw-3) conducted the post-mortem examination on the body of the victim who found the following injuries: wxyz Deep penetrating wound on inner canvas of left eye about 2.5 1.5 1.5 cm zyxw wxyz In the opinion of the autopsy doctor death was caused due to asphyxia as a result of drowning. zyxw 4. On conclusion of investigation, charge-sheet was laid against the present appellant under section 302/201 IPC. As the case was triable by the Court of Sessions, learned Magistrate upon taking cognizance, committed the case to the Court of Sessions. Learned Sessions Judge framed charge under sections 302 IPC against the accused/appellant, to which he pleaded not guilty. 5. During the course of trial 11 (eleven) witnesses were examined by the prosecution in order to bring home the charges and on appreciation of evidence, learned Sessions Judge convicted the appellants under section 302/201 IPC and awarded sentence as indicated above. 6. Aggrieved the appellant preferred the appeal. 7. 5. During the course of trial 11 (eleven) witnesses were examined by the prosecution in order to bring home the charges and on appreciation of evidence, learned Sessions Judge convicted the appellants under section 302/201 IPC and awarded sentence as indicated above. 6. Aggrieved the appellant preferred the appeal. 7. Learned Amicus Curiae vehemently arguing for acquittal of the appellant contends that there was no legal evidence to substantiate the charges against the appellant, inasmuch as, the learned trial Court recorded the conviction of the appellant mostly relying on the oral testimony of Pw-1, Pw-2, Pw-4 & Pw-7 which was not at all believable for the reason that though the victim remained missing for 5 days none of them disclosed anything till the body was recovered and the FIR was lodged. Supporting the conviction and sentence of the appellant, learned Addl. PP contends that prosecution proved the charges beyond reasonable doubt by adducing sufficient evidence and therefore, the impugned conviction and sentence calls for no interference. 8. We have considered the submissions made by the learned Amicus Curiae and learned Addl. PP, Assam and also scrutinised the evidence brought on record. 9. The first witness examined by the prosecution was Debaru Borai who testified that on the day of Diwali at about 7.00/7.30 PM he along with deceased Mohendra, Bipul (accused) and Lalu Karmakar (Pw-2) were enjoying the warmth of fire in the house of Debu Tanti. According to him, an altercation ensued between the accused Bipul and deceased Mohendra over Goat milk. In course of the altercation the accused pressed the neck of the deceased, however, he intervened and dispersed them whereupon the deceased left the place. Thereafter he had seen the accused Bipul chasing Mohendra taking a hammer in his hand and after a while the accused came back and told that he had killed Mohendra and also threatened them not to disclose the matter to anyone. He further stated, that after five days of the occurrence, when the body of Mohendra was recovered in the pond, he had seen bleeding injury on the face of the deceased. He further stated that after the occurrence he informed the inmates of the house of the deceased about the occurrence. He further stated, that after five days of the occurrence, when the body of Mohendra was recovered in the pond, he had seen bleeding injury on the face of the deceased. He further stated that after the occurrence he informed the inmates of the house of the deceased about the occurrence. It was also elicited during cross-examination of this witness and the Investigating Officer, that this witness did not state in his previous statement recorded under section 161 Cr.P.C., that there was an altercation between the accused and the deceased or the accused chased the victim with hammer and the accused pressed the neck of the deceased. It has also been elicited during crossexamination that his relationship with the accused was strained from last 3-4 years and he was not in talking terms with the accused. 10. Pw-2 Lalu Karmakar also stated in the same line, that one day at night he along with accused Bipul, deceased Mohendra, Debu Borai (Pw-1) and Urmila were enjoying the warmth of fire and at that time altercation started between deceased Mohendra and accused and the accused pressed the neck of the deceased. Thereafter the deceased went towards the backside of Debu''s house and accused Bipul followed him with hammer in his hand and killed him. He also stated to have seen the accused striking the deceased on his head with the hammer and after six days of the said occurrence, the body of the victim was found in a pond. He also stated to have seen injury on the head of the deceased. According to him, the house of Urmila was at a distance of one and half nals away from that of the deceased. It has also been stated that he did not inform the members of the deceased family about the quarrel. According to him, there were five persons enjoying the fire and none of them have informed the police or the members of the deceased''s family about the occurrence. This witness also admitted that his relation with the accused was strained and he has not been in talking terms with the appellant for the last 3-4 years. 11. Pw-4 Lakhimani Tanti testified that at about 7.00 PM few years back deceased Mohendra, lalu and Dadu were enjoying the warmth of fire in her house. After sometime accused arrived there and had a talk with them. 11. Pw-4 Lakhimani Tanti testified that at about 7.00 PM few years back deceased Mohendra, lalu and Dadu were enjoying the warmth of fire in her house. After sometime accused arrived there and had a talk with them. Hearing commotion she came to the place of occurrence and saw that the accused was dealing blows on the head of the deceased with a bamboo hammer. Thereafter, the accused Bipul chased Mohendra to the backside of their yard and after a while he came back and told that he had killed the deceased and left him there. During cross-examination of this witness it was elicited that the house of the deceased was at a distance of 40-50 km away from her house. According to her, police recorded her statement after ten days of the incident. 12. Pw-5 Kartik Bhuyan stated that he had seen the deceased Mohendra, accused Bipul, Lalu and Debaru enjoying the warmth of fire. However, he denied to have seen any incident. 13. Pw-6 Choto Tanti father of the deceased stated that his son Mohendra went to the house of his elder brother Debu Tanti and on the same day at about 10.30 PM, the accused came to his house and told his son Dipen Tanti (elder brother of deceased) that he would kill Mohendra if he meet him. On the said night deceased Mohendra did not return home, however, on the following day the accused again came and asked Dipen Tanti to accompany him for searching Mohendra. According to him, the accused also informed that after the quarrel Mohendra has brought his shoes which were not returned. However, in his previous statement recorded under section 161 Cr.P.C., he did not state before police that accused came at night and informed Dipen about quarrelling with the deceased. 14. Pw-7 Bijoy Urang stated that while he along with Kartimk Gowala, Debaru Baraik, Lakhimini Tanti were enjoying the warmth of fire at the courtyard of Lakhimini Tanti, the accused arrived there and threatened them. According to him the deceased was also sitting with them. 14. Pw-7 Bijoy Urang stated that while he along with Kartimk Gowala, Debaru Baraik, Lakhimini Tanti were enjoying the warmth of fire at the courtyard of Lakhimini Tanti, the accused arrived there and threatened them. According to him the deceased was also sitting with them. He further stated that the accused stared hurling abuse and took up altercation and in course of the altercation he and Kartik left the place and on the next day he could learn from Lakhimini Tanti that the accused had killed the deceased and thereafter he made a search for the body of the deceased and after five days of the incident, the body of the deceased was recovered. He admitted to have not told the police that he could learn from Lakhimini that the accused had killed the deceased and he was searching for the body. 15. Pw-8 Guna Ram Karmakar was a seizure witness. He had no personal knowledge about the occurrence. Pw-5 stated that he had learnt that a quarrel had taken place between the accused and the deceased and after five days of the incident he had seen the body of the deceased floating in the pond near the office of the garden. 16. Pw-10 Jugen Bora was declared hostile. He stated that one morning he came to know from the police that a body had been found in a pond near Salmara Tea garden. He further stated, that the inquest report (Exhibit-4) was prepared in his presence and he put his signature therein. 17. A dispassionate scrutiny of the oral testimony of Pw-1, Pw-2, Pw-4 & Pw-7 transpires that though all of them have stated that there was quarrel between the accused and the deceased and the accused assaulted the victim with a hammer and killed him, none of them informed either the police or the members of the family of the deceased. Evidently the occurrence took place in the house of Debu Tanti and there was hue and cry but surprisingly no one could know about such hue and cry or quarrel between the accused and the deceased, though, according to Pw-2, the house of Debu was at a distance of one and half nal from that of the deceased. According to Pw-4 & Pw-7, when they were enjoying the warmth of fire, the deceased came there and quarrel ensued. According to Pw-4 & Pw-7, when they were enjoying the warmth of fire, the deceased came there and quarrel ensued. According to Pw-1 & Pw-2, the accused was also enjoying the warmth of fire with Pw-1, Pw-2 and Pw-4. According to Pw-7, he did not see the assault and however, stated to have learnt the next day that the accused had killed Mohendra but he also remained silent till the body was recovered in the pond. Though Pw-1 deposed that after the occurrence, he informed the members of the deceased''s family about the occurrence, such evidence of Pw-1 was belied by Pw-6, father of the deceased, inasmuch as according to Pw-6, till the body was recovered in the pond, they did not know about the death of the deceased. Though Pw-1, Pw-2 and Pw-4 stated that they had seen the accused assaulting the victim with hammer and killing him, none of them disclosed to any one till the body was found in the pond. Although Pw-1 & Pw-2 have stated that the accused assaulted the victim with hammer on his head and thereby caused his death, such evidence of Pw-1 & Pw-2 was also belied by the medical evidence, inasmuch as, no injury on the head of the deceased was found, rather, as per the medical evidence the death of the deceased was caused due to asphyxia, as a result of drowning. The evidence of the doctor and the post-mortem report disclosed that muddy water was found in the stomach of the deceased, which was also suggestive of the fact that the death was cause due to drowning. Pw-1 even went on saying that when the body was recovered he had seen injury with blood which appears to be absurd and inherently improbable and reaffirmed the falsity of his statement. It is also evident from the testimony of Pw-1 & Pw-2 that their relation with the deceased was strained and they were not in talking terms for last 3/4 years. 18. In view of the medical evidence as deposed by Pw-3 as well as the post-mortem report as well as the facts and circumstances as indicated above, the testimony of Pw-1, Pw-2, Pw-4 that they had seen the accused assaulting the victim with hammer and killed him five days before the recovery of the body is hardly worthy of inspiring confidence. In view of the medical evidence as deposed by Pw-3 as well as the post-mortem report as well as the facts and circumstances as indicated above, the testimony of Pw-1, Pw-2, Pw-4 that they had seen the accused assaulting the victim with hammer and killed him five days before the recovery of the body is hardly worthy of inspiring confidence. The plea taken by some of the witnesses that they were threatened also does not inspire confidence inasmuch as, Pw-7 nowhere stated that he was threatened by the accused not to disclose about the occurrence nor the Pw-1, Pw-2 and Pw-4 disclosed to anyone. Evidently, till the body was recovered after five days of the occurrence, no one was aware about any incident of quarrel or assault on the deceased by the accused. All these vital circumstances escaped the notice of the learned trial Court and learned trial Court recorded conviction of the appellant relying on the oral testimony of Pw-1, Pw-2 & Pw-4, all of whom, in our considered opinion were totally unworthy of trust. Once the evidence of Pw-1, Pw-2, Pw-4 & Pw-7 are discarded, the prosecution is left with no evidence to prove the charge of murder against the appellant. It is no doubt true, that the victim died an unfortunate death due to drowning, but there was no evidence worthy of trust to prove that the accused persons killed the deceased, rather from the medical evidence this is also difficult to hold with certainty that the death was homicidal. 19. In the above facts and circumstances of the case, we are of the considered opinion that the prosecution evidence was grossly inadequate to bring home the charge against the appellant and as such, the appellant is atleast entitled to the benefit of doubt. Accordingly, we set-aside the conviction and sentence of the appellant and allow the appeal. However, we do not interfere with the order passed by the learned trial Court regarding compensation under section 357-A IPC. The appellant be set at liberty forthwith, if not required in any other case. 20. A copy of this judgment be forwarded to the Superintendent of the District Jail, Golaghat. 21. Appreciating the assistance rendered by Mrs. S Kanungoe, learned Amicus Curiae, we hereby provide that she will be entitled to professional fees of Rs.7500/-. The appellant be set at liberty forthwith, if not required in any other case. 20. A copy of this judgment be forwarded to the Superintendent of the District Jail, Golaghat. 21. Appreciating the assistance rendered by Mrs. S Kanungoe, learned Amicus Curiae, we hereby provide that she will be entitled to professional fees of Rs.7500/-. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Mrs. Kanungoe. 22. Appeal allowed to the extent indicated above. 23. Send down the LCR along with a copy of this judgment.