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2020 DIGILAW 58 (GAU)

Jitlal Mahato v. State of Assam

2020-01-21

MIR ALFAZ ALI, S.HUKATO SWU

body2020
JUDGMENT : MIR ALFAZ ALI, J. 1. Heard Mr. B. Prasad, learned counsel, assisted by Mr. A. Talukdar & Mr. K.K. Kalita, learned counsel for the appellants and Ms. S. Jahan, learned Addl. P.P., Assam for the respondents. 2. Both these appeals having arisen out of the judgment and order dated 19.07.2014 passed by the learned Additional Sessions Judge, No. 1, Kamrup (M), Guwahati, in Sessions Case No. 43(K)/2012 are taken up together for hearing and disposal by this common judgment. By the impugned judgment, the learned Sessions Judge convicted the appellants under Section 302/201 IPC and sentenced the appellants, Jitlal Mahato and Nepali Mahato to imprisonment for life and fine of Rs. 10000/- each with default stipulation under section 302 IPC. All the three appellants were further sentenced to rigorous imprisonment for seven years and fine of Rs. 5000/- each with default stipulation under Section 201 IPC. 3. As per the prosecution case, the victim, who was working in the house of the appellant Jitlal Mahato, went missing since 17.05.2009. During search, it could be learnt by the informant, that the appellant Jitlal Mahato killed the victim and kept the body buried on the bank of river Brahmaputra and accordingly, an FIR (Ext. 9) was lodged on 28.06.2009 by informant Rajen Bhakta (since deceased). On the basis of the said FIR, police registered Pragjyotishpur P.S. Case No. 29/2009 under Section 302/201 IPC and commenced investigation. During investigation, the body was exhumed from the place, where it was buried; inquest report was prepared and sent for postmortem examination. PW-5, Dr. Manoj Kumar Sinha conducted the postmortem examination on the body of the victim. According to the autopsy doctor (PW-5), the body was highly decomposed and therefore, no opinion could be given as to the cause of death. Some parts of the body were sent to FSL for chemical examination, which gave negative test for any poison. On completion of the investigation, police submitted charge sheet against the appellants, who eventually stood trial. 4. In course of trial, charges under Section 302/201 IPC were framed against the appellants, to which they pleaded not guilty. In order of bring home the charges, prosecution examined as many as 6 witnesses and on appreciation of the evidence, learned Sessions Judge, convicted the appellants under Section 302/201 IPC and awarded sentence as indicated above. 5. We have considered the submissions made by Mr. In order of bring home the charges, prosecution examined as many as 6 witnesses and on appreciation of the evidence, learned Sessions Judge, convicted the appellants under Section 302/201 IPC and awarded sentence as indicated above. 5. We have considered the submissions made by Mr. B. Prasad, learned counsel for the appellants and Ms. S. Jahan, learned Addl. P.P., Assam for the respondents. 6. Learned counsel for the appellants submits, that the conviction was primarily based on the evidence leading to discovery, as the body of the victim was said to have been recovered on the basis of the disclosure statement made by the appellants. Learned counsel further submits that in fact, there was no discovery, inasmuch as, even before lodging the FIR, the body was discovered and the Investigating Officer had the knowledge of the body being buried on the bank of Brahmaputra and therefore, there was no scope for any further discovery of facts under Section 27 of the Evidence Act. The so called discovery was totally farcical in the instant case and as such, the conviction and sentence based on such farcical discovery cannot be maintained, submits Mr. Prasad. 7. Learned Additional Public Prosecutor supporting the conviction and sentence, contends, that the disclosure statements of the appellants were recorded by police, which were also duly proved and as such, the discovery evidence under Section 27 of the Evidence Act cannot be straight away rejected. 8. Evidently, there was no direct evidence and the learned trial court recorded the conviction relying on the following circumstantial evidence. (i) The deceased Kathal Bhakta was staying in the house of the accused Jitlal Mahato, Ranjit Mahato and Nepali Mahato as a domestic help prior to five years of his murder. (ii) The deceased went missing from the house of the accused Jitlal Mahato, Ranjit Mahato and Nepali Mahato and thereafter, the dead body of deceased was exhumed from the bank of the river Brahmaputra. (iii) The dead body of Kathal Bhakta was exhumed as per the exhibits - X, Y and Z disclosure statements made by the accused Jitlal Mahato, Ranjit Mahato and Nepali Mahato. (iv) The accused Jitlal Mahato, Ranjit Mahato and Nepali Mahato had neither informed the uncle of Jagadish Bhakta @ Kathal, nor informed the police about his alleged disappearance. (iii) The dead body of Kathal Bhakta was exhumed as per the exhibits - X, Y and Z disclosure statements made by the accused Jitlal Mahato, Ranjit Mahato and Nepali Mahato. (iv) The accused Jitlal Mahato, Ranjit Mahato and Nepali Mahato had neither informed the uncle of Jagadish Bhakta @ Kathal, nor informed the police about his alleged disappearance. (v) When the uncle of Jagadish Bhakta @ Kathal went to the house of the accused to enquire about the whereabouts of Jagadish Bhakta @ Kathal, the accused tried to mislead him by telling that Jagadish Bhakta @ Kathal had gone to Delhi. (vi) The accused Jitlal Mahat, Ranjit Mahato and Nepali Mahato led the police to the place in the bank of the river Brahmaputra where they had buried the dead body and dug out the dead body in a highly decomposed position. 9. PW-6, Sri Babul Das stated in his evidence that the Investigating Officer, Rajendranath Saikia (since deceased) could learn in course of interrogation of the accused Jitlal Mahato, Ranjit Mahato and Nepali Mahato, that the accused persons had killed the victim Biswajit @ Kothal Bhakta by strangulation and buried the body in the sandbanks of river Brahmaputra. The Investigating Officer requested him to go to the place, where the body was buried and accordingly he along with the Circle Officer went to the place where the body had been kept buried and the accused persons disinterred the body. He also stated that the Investigating Officer, Rajendranath Saikia died and therefore, he deposed from the case diary maintained by Rajendranath Saikia (since deceased). During cross examination, he stated, that after they had reached the place, where the body was buried, the accused persons dug a hole and recovered the body and the disclosure statement of the appellants were recorded in the house of the appellants. He further clarified that by the place of occurrence, he meant the place where the body was kept buried. 10. PW-1 stated, that he arrived the place after the body was exhumed and he put his signature in the seizure list (Ext. 1), by which a hoe and a "siprang" were seized, which were used for exhuming the body. PW-3 stated, that when he reached the place, wherefrom the body was exhumed, villagers and press reporters were already present there. The appellants were also there among the public. 1), by which a hoe and a "siprang" were seized, which were used for exhuming the body. PW-3 stated, that when he reached the place, wherefrom the body was exhumed, villagers and press reporters were already present there. The appellants were also there among the public. He further stated that appellants exhumed the body. He also stated, that Jitlal Mahato confessed before police. PW-4 also deposed in the same manner, that when he arrived the place of occurrence, the villagers assembled there, where the appellants were also present. The alleged disclosure statement proved as Ext. X, Y & Z shows that the statements were recorded by the Investigating Officer at the place wherefrom the body was recovered. 11. The evidence of PW-6, the Officer-in-Charge of Panikhaiti Police Station and Ext. 9, the FIR shows, that the informant mentioned in the FIR itself, that the body was buried in the sandbank of river Brahmaputra. It is also in the evidence of PW-6, that immediately after receiving the FIR, police proceeded to the place, wherefrom the body was recovered. Thus, evidently from the statement made in the FIR, it is apparent, that before the appellants were taken into custody, the Investigating Officer had the knowledge, that the body was buried in the bank of river Brahmaputra, and therefore, immediately after receiving the FIR, he straightway proceeded to the river bank. 12. In order to invoke the provision of Section 27 of the Evidence Act, which is otherwise an exception to the provision of Section 25 of the Evidence Act, the necessary pre-conditions are firstly, there must be discovery of a fact, albeit relevant facts, in consequence of an information received from the accused, secondly, the recovery of facts must be the direct consequence of such information, thirdly, recovery must be deposed to, fourthly, at the time of making disclosure statement, the accused must have been in custody of police and fifthly, only "so much of the information" as relates "distinctly" to the fact thereby discovered, meaning thereby, the disclosure information must be distinctly related to the facts discovered [see 2009 (2) GLT 414 (Rajiv Phukan Vs. State of Assam) (FB)]. 13. "The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent event". State of Assam) (FB)]. 13. "The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent event". Therefore, unless there is a disclosure statement, there is no question of discovery of facts under Section 27 of the Evidence Act, reason being that the statement distinctly related to the discovery is made admissible in evidence by way of exception to the provision of Section 25 of the Evidence Act, for the reason, that subsequent discovery of facts confirms statement exculpatory or inculpatory made by the accused. What is abundantly clear in the present case is that the police was already aware of the place, where the body was buried. Since the Investigating Officer already knew on received of the FIR, that the body was buried in a particular place, wherefrom it was subsequently recovered, such recovery of the body can by no stretch of imagination be stated to be the direct consequence of any disclosure statement made by the accused/appellants. When police already had the knowledge of the fact that the body of the victim was buried on the bank of river Brahmaputra, wherefrom it was recovered, the so called disclosure statement made by the appellants, that too, at the place, where the body was recovered, in our considered view was of no consequence. This apart, according to PW-6, Ext. X, Y & Z were recorded in the resident of the appellants. If this statement of the PW-6 is believed, then the so called disclosure statement was recorded after discovery of the body. In the above facts and circumstances, we find that the fact of discovery of the body on the basis of alleged disclosure statement of the accused/appellants was nothing but a farce. What therefore emerged from the evidence is that the circumstances No. 3 & 6, perhaps, the most vital circumstance relied by the trial court were not proved. The learned trial court is found to have relied on the said discovery evidence without taking into consideration, that there was, in fact, no discovery of fact, as per Section 27 of the Evidence Act. Once the evidence as to discovery of fact under Section 27 of the Evidence Act fails, literally no evidence is left with, to support the prosecution case. 14. Once the evidence as to discovery of fact under Section 27 of the Evidence Act fails, literally no evidence is left with, to support the prosecution case. 14. The first and second circumstances relied by the learned Sessions Judge was that the deceased was working in the house of the appellant as domestic help prior to 5 years of his death and he was missing from the house of the appellants. However, we find in the evidence that the deceased casually used to work in the house of the appellant. It is also in the evidence that some time, he used to work in brick kiln and some time he used to work as domestic help in the house of the appellant. In fact, prosecution evidence also fell short of proving beyond reasonable doubt, that the victim disappeared or went missing from the house of the appellants. Another circumstance relied by the learned trial court was that on enquiry by the relative of the victim, the appellant Jitlal Mahato gave a wrong information, that the victim had gone to Delhi and except this circumstance of alleged wrong information purportedly given by the appellant Jitlal Mahato that the victim went to Delhi, we find no other circumstance having been proved beyond reasonable doubt to inculpate the appellants. 15. It is the settled position as held in catena of decisions by the Apex Court, that in a criminal trial resting solely on the circumstantial evidence, prosecution must prove each and every circumstance independently and solidly beyond all reasonable doubt and the circumstances so proved, taken cumulatively must form a complete and unbroken chain, which leads to the inescapable conclusion, that it was none but the accused/appellant, who has committed the offence. In other words, chain of circumstances must be consistent only with the guilt of the accused and inconsistent with his innocence. When the prosecution has failed to prove the circumstance including leading to discovery under Section 27 of the Evidence Act, there was no chain of event to prove the guilt of the accused beyond reasonable doubt and as such, the conviction and sentence of the appellant cannot be sustained. Accordingly, we set aside the conviction and sentence of the appellants and resultantly, both the appeals stand allowed. 16. The accused appellants be released and set at liberty forthwith, if not required in any other case. 17. Send down the LCR.