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2020 DIGILAW 19 (GAU)

Kamal Tanti v. State Of Assam

2020-01-06

MANISH CHOUDHURY, MIR ALFAZ ALI

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Mr. Atal Tiwari, learned Amicus Curie and Mr. B. Dutta, learned Additional Public Prosecutor for the State of Assam. 2. This criminal appeal is directed against the judgment and order passed by the learned Sessions Judge, Tinsukia in Sessions Case No. 135(T)/2013, whereby, the appellant was convicted under Section 302 I.P.C. and sentenced to imprisonment for life and fine of Rs. 50,000/- (Rupees fifty thousand) with default stipulation. 3. As per prosecution case, on 11.10.2010 at about 06.00 p.m., some unknown persons inflicted injury on the head of the victim Haren Tanti by means of a sharp weapon, whereupon the P.W.1, mother of the victim, lodged an FIR on the basis of which, police registered Doomdooma Police Station Case No. 344/2010 under Section 324/34 I.P.C. 4. During investigation, the victim succumbed to the injury and therefore, Section 302 I.P.C. was added on the prayer of the Investigation Officer. On conclusion of the investigation, charge sheet was laid against the 3 (three) persons including the present appellant and eventually all of them stood the trial. 5. During the trial, the learned Sessions Judge framed charge under Section 302 I.P.C. read with Section 34 I.P.C. against all the 3 (three) accused persons including the present appellant, to which, they pleaded not guilty. 10 (ten) witnesses were examined by the prosecution in order to bring home the charge against the accused persons. On appreciation of evidence, the learned Sessions Judge convicted the present appellant under Section 302 I.P.C. and awarded sentence as indicated above. However, the other two accused persons were acquitted and set at liberty. 6. We have considered the submissions made by the learned Amicus Curiae and the learned Additional Public Prosecutor. We have also scrutinised the evidence brought on record. 7. Apparently, there was no eye witness having seen the occurrence of assault and the learned Sessions Judge basically relying on the circumstantial evidence emerged from the oral testimony of P.W.3, recorded the conviction of the appellant in the instant case. P.W.3 testified that hearing cries of Sukur and the deceased, he rushed to the place of occurrence being the house of Sukur and found the deceased lying on the ground in the courtyard of Sukur. He also stated to have seen Kamal, Sukur and Atul at the place of occurrence. P.W.3 testified that hearing cries of Sukur and the deceased, he rushed to the place of occurrence being the house of Sukur and found the deceased lying on the ground in the courtyard of Sukur. He also stated to have seen Kamal, Sukur and Atul at the place of occurrence. According to him, Kamal was armed with an axe like weapon (Tangi) in his hand and he also noticed injury on the head of the deceased. Immediately, he called his younger brother Narayan Sawashi and took the victim to Raidang Hospital. From the crossexamination of this witness and the testimony of P.W.6, the Investigation Officer, it is apparent, that he did not state in his previous statement before the police, recorded under Section 161 Cr.P.C., that he had seen any axe like article in the hands of the accused Kamal. Apparently, this witness was a post-occurrence witness, as he came after the occurrence was already over and found the victim lying with injury. Therefore, omission on the part of P.W.3 to state before the police the material fact, that he had seen the appellant Kamal with an axe like thing, in his hand, in our considered view cannot be considered as an insignificant omission, and such omission of material fact in the previous statement certainly amounted to contradiction, casting a doubt on the veracity of the oral testimony of the P.W.3, with regard to his testimony of seeing an axe like weapon in the hand of the appellant Kamal. In view of the above contradiction on material facts, the testimony of P.W.3, that he had seen the accused Kamal with any axe like weapon in his hand is hardly worthy of inspiring confidence. 8. Besides the P.W.3, there was no other witness of the occurrence, in as much, all other oral evidences were hearsay, except P.W.9, who was declared hostile. Although P.W.1 stated that he had come to know about the occurrence from Bijoy Manki (P.W.9), the P.W.9, however did not support the prosecution version and he was declared hostile by the prosecution. The prosecution, however, proved the Ext.-6, statement of P.W.9 recorded under Section 164 Cr.P.C. In his statement recorded under Section 164 Cr.P.C., P.W.9 allegedly stated before the Magistrate, that there was quarrel and exchange of hot words between Sukhram and the deceased. The prosecution, however, proved the Ext.-6, statement of P.W.9 recorded under Section 164 Cr.P.C. In his statement recorded under Section 164 Cr.P.C., P.W.9 allegedly stated before the Magistrate, that there was quarrel and exchange of hot words between Sukhram and the deceased. He also stated, that in course of the quarrel between Sukhram and the deceased, the appellant, Kamal, who was hiding there, suddenly appeared at the place of occurrence and hit on the head of Haren by picking up a ''Tangin'' (spear). Apparently, the victim died after 3 days of the occurrence and the medical evidence, transpires that the injury was caused by a blunt object. Therefore, the medical evidence also tends to belie the oral testimony of the P.W.3 that injury was caused by an axe like weapon (tangin) which was a sharp weapon. 9. The learned Amicus Curiae has come down heavily on the Ext.-6, statement of P.W.9 recorded under Section 164 Cr.P.C., stating that such statement was procured by coercion, in as much as, before producing the P.W.9 for recording the statement under Section 164 Cr.P.C., he was taken into custody by the police and he was produced before the Magistrate for recording statement under Section 164 Cr.P.C. from police custody. The submission of the learned Amicus Curiae, appears to have substance, in as much as, the Investigating Officer, in his evidence, admitted, that before producing the P.W.9 for recording his statement under Section 164 Cr.P.C., he was taken into custody. Since P.W.9 was a witness, what necessitated the Investigation Officer to take the P.W.9 into custody for recording his statement under Section 164 Cr.P.C. is beyond our comprehension. 10. P.W.10, the Judicial Magistrate who recorded the statement of P.W.9, deposed, that he did not ascertain from the witness before recording the statement, whether he was under police custody or he was compelled to make the statement. The above circumstances, in our considered view, certainly cast doubt on the voluntariness of the statement of the P.W.9 made under Section 164 Cr.P.C. Be that as it may, even if it is assumed for a moment, that the statement of P.W.9 (Ext.6) under Section 164 Cr.P.C., was recorded in proper manner and free from any blemish, such statement is not an evidence, and is merely a previous statement, which could be used for the limited purpose of contradiction and corroboration of the author. 11. 11. As already indicated above, except P.W.3, there was no other witness supporting the prosecution case and the testimony of P.W.3 who was admittedly a post-occurrence witness was also not found to be trustworthy as regards his testimony of noticing the accused with an axe like article in his hand. Therefore, the vital circumstances relied by the learned trial court has fallen flat. Once the evidence of P.W.3 is discarded, prosecution is left with no evidence except the statement of the P.W.9, recorded under Section 164 Cr.P.C. As already indicated above, the statement under Section 164 Cr.P.C. is only a previous statement and not evidence and no conviction can be passed on the sole basis of the statement recorded under Section 164 Cr.P.C. 12. We also take note of the fact, that besides the appellant Kamal, 2 (two) other persons namely, Sukur and Atul were also present at the place of occurrence and admittedly the quarrel took place between the co-accused Sukhram and the deceased. When there were 3 (three) persons including the present appellant and the quarrel took place between the victim and Sukhram and not the present accused and there is no convincing evidence to prove that Kamal inflicted the fatal blow, the possibilities of the injury being inflicted by anyone, other than the appellant could not be ruled out. It is now well settled by catena of decision of the Apex Court, that in a criminal trial resting solely on the circumstantial evidence, prosecution needs to prove the circumstances beyond reasonable doubt and the circumstances so proved, must form a complete chain leading to the one and only one irresistible conclusion, that none other, but the accused committed the offence. Thus, if the circumstances are such, which can lead to more than one conclusion or more than one conclusion is possible, the chain of circumstance cannot be held to be complete and no conviction can be based on such circumstances. 13. In the above facts and circumstances, we are of the considered opinion that the complete chain of circumstance has not been proved, and as such, the appellant, at least, ought to have been given the benefit of doubt. Therefore, the conviction and sentence of the appellant cannot be sustained. Accordingly, the conviction and sentence of the appellant under Section 302 I.P.C. is hereby set aside and the appeal stands allowed. Therefore, the conviction and sentence of the appellant cannot be sustained. Accordingly, the conviction and sentence of the appellant under Section 302 I.P.C. is hereby set aside and the appeal stands allowed. We however, do not interfere with the judgment and order passed by the learned Sessions Judge pertaining to the compensation under Section 357A Cr.P.C. 14. Accordingly, the appeal stands allowed. The appellant be released and set at liberty forthwith, if not required in any other case. 15. Appreciating the assistance rendered by Mr. Atal Tewari, learned Amicus Curiae, we hereby provide that he will be entitled to professional fee of Rs. 7500/-. Upon production of a copy of this judgment, Guwahati High Court legal Services Committee shall pay the fee to Mr. Tewari. 16. Send down the LCR along with a copy of this judgment.