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2021 DIGILAW 512 (GAU)

Nipen Boro v. State of Assam

2021-08-31

PARTHIVJYOTI SAIKIA, SUMAN SHYAM

body2021
JUDGMENT : SUMAN SHYAM, J.: 1. Heard Mr. B. Baruah, learned counsel appearing for the appellant. We have also heard Ms. B. Bhuyan, learned APP, Assam, appearing for the State/respondent No. 1. Ms. D. Saikia, learned Legal Aid Counsel has appeared for the informant/respondent No. 2. 2. The instant appeal is directed against the judgement and order dated 8.12.2017 passed by the Court of Sessions Judge, Udalguri, Assam, in connection with Sessions Case No. 115(U)/2015, whereby, the sole appellant Sri Nipen Boro had been convicted under section 302 of the Penal Code, 1860 for committing murder of Swdwmshri Daimari and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 5,000, in default, to undergo rigorous imprisonment for three months. ! 3. The prosecution case, in a nutshell, is that the appellant had a love affair with the deceased. On 3.4.2015, the appellant had called the deceased from her home, committed rape on her and thereafter, killed her at night by strangulation and had thrown the dead body on the bank of Nonai river at Dhupguri Gaon. 4. On 4.4.2015, the Uncle of the victim, viz., Prabin Daimari (PW-1) had lodged an ejahar before the Officer in-Charge, Panery Police Station, based on which, Panery Police Station Case No. 24/2015 was registered under section 120B/376/302 of the Penal Code, 1860 (‘IPC’). As per the usual process, the Police took up the matter for investigation and thereafter submitted charge sheetjagainst the appellant under section 120B/376/302, IPC. Based on the charge sheet, charges were framed against the appellant under section 120B/376/302, IPC and were read over and explained to him. However, since the accused-appellant had pleaded not guilty and claimed to be tried, theimatter went up for trial. 5. There is no eye witness to the occurrence and the prosecution case is entirely based on circumstantial evidence. In order to drive home the charge brought against the accused, the prosecution side had examined as many as 18 witnesses including the doctor, i.e., PW-14, who had conducted the post mortem examination and two Investigating Officers, viz., PWs 18 and 19. The prosecution had relied upon the following circumstances (i) The accused had a love affair with the deceased. (ii) The deceased was last seen in the company of the accused. (iii) The accused had made extra-judicial confession, and (iv) The dead body was recovered on being led by the accused. The prosecution had relied upon the following circumstances (i) The accused had a love affair with the deceased. (ii) The deceased was last seen in the company of the accused. (iii) The accused had made extra-judicial confession, and (iv) The dead body was recovered on being led by the accused. 6. Upon analyzing the evidence available on record, the learned trial court was of the view that the prosecution had succeeded in establishing the chain of circumstances so as to prove the charge brought against the accused under section 302 of the IPC beyond all reasonable doubt and accordingly, convicted and sentenced the accused, as mentioned herein above. The appellant/accused was, however, acquitted of the charge framed under section 376, IPC due to lack of evidence. 7. Assailing the impugned judgment and order dated 8.12.2017 passed by the learned Sessions Judge, Mr. Baruah, learned counsel for the appellant has argued that there is no evidence available on record so as to establish the chain of circumstances pointing towards the guilt of the accused. The learned counsel submits that the dead body was recovered by the Police on being shown by some other person and not the accused. Therefore, there is no discovery of the dead body within the meaning of section 27 of the Evidence Act. Mr. Baruah further submits that there is no evidence to establish the “last seen together” circumstances and the alleged extrajudicial confession, having been made by the accused while in Police custody, was not a piece of evidence which could have been relied upon by the learned trial court so as to convict the appellant. 8. Besides the above, by relying on a decision of the hon'ble Supreme Court in the case of Harbeer Singh v. Sheeshpal, 2017 Cri LJ 169, Mr. Baruah submits that there has been unexplained delay in recording the statement of key witnesses, i.e., PWs-2 and 9, thereby making their evidence unreliable. Under the circumstances, the learned trial court had committed a manifest illegality in convicting the appellant. 9. Ms. B. Bhuyan, learned APP, Assam, on the other hand, has argued that the prosecution has led sufficient evidence to establish the fact that the accused was having a love affair with the deceased. Under the circumstances, the learned trial court had committed a manifest illegality in convicting the appellant. 9. Ms. B. Bhuyan, learned APP, Assam, on the other hand, has argued that the prosecution has led sufficient evidence to establish the fact that the accused was having a love affair with the deceased. The learned APP has, however, submitted in all fairness, that as per the evidence on record, the dead body was recovered from the place of occurrence on being shown by some other person and the extra-judicial confession by the appellant was also made while in Police Station. Therefore, the same would not be evidence in the eye of law. 10. We have considered the arguments advanced by learned counsel for both sides and have examined the materials available on record. 11. As noted above, there is no eye witness to the occurrence and the prosecution case is entirely based on circumstantial evidence. PW-1 Sri Prabin Daimari, who is the Uncle of the deceased, is the informant in this case. PW-1 has stated that the incident took place on 3.4.2015 but he did not witness the same. He has deposed that there was a love affair between the accused and the deceased and a marriage proposal was also sent to his niece by the father of the accused and the villagers. The marriage was to be solemnized after five years since both of them were studying the degree course. However, on 3.4.2015 at around 2.30 p.m., his niece (deceased) went out from the house saying that the accused had called her. On the next day, i.e., on 4.4.2015, he came to know that the dead body of the deceased was lying in the bank of Nonai river. Later, he went and saw the dead body at the Police Station and lodged ejahar Ext.-1. Ext. 1(1) was his signature. This witness has also stated that on that day, Minati Boro (PW-2) of Tangla had told him that at around 5.30/6 p.m., she saw both of them, i.e., the deceased and the accused in a textile fair at Tangla. However, the aforesaid fact was not mentioned by the PW-1 in the ejahar nor did he say so before the Police while recording his statement under section 161, Cr.PC. 12. However, the aforesaid fact was not mentioned by the PW-1 in the ejahar nor did he say so before the Police while recording his statement under section 161, Cr.PC. 12. PW-2, Smt. Minati Boro had deposed before the court that on 3.4.2015, at around 5.30 p.m. she had seen both Swdwmshri Daimari and the accused going out from the textile fair held at Tangla on a bicycle. Next day, at around 10 a.m., she heard that dead body of Swdwmshri Daimari was found. She had deposed that she suspected that the appellant had killed the deceased. In her cross-examination, PW-2 had stated that the Police had examined her 10-12 days after the incident. She was at home since the time Swdwmshri Daimari died till the date on which the Police had examined her and during that period, she had visited the Police Station 3/4 times but the Police did not examine her. PW-2 has also stated that when she went to the textile fair, her husband was with her and they saw Swdwmshri Daimari and the accused from a distance. There were many people there but she did not know whether someone else was there with her. PW-2 has, however, denied that the deceased was her niece and that she had deposed falsely. 13. PW-9, Smt. Rwaimali Daimari is the sister of the deceased. She has deposed that on 3.4.2015 at around 2-2.30 p.m., her deceased sister went to Tangla by saying that the accused had called her. She went to Tangla by riding a lady's bicycle but did not return at night. Next day, she had received information that dead body of her sister was lying on the bank of Nonai river. Upon receiving such information, her brother and some villagers came to the place of occurrence. She had seen the dead body of her sister when it was brought home after the post mortem examination. PW-9 had also stated that the deceased had gone out clad in a Dokhona and with chappals on her legs. She had also deposed that her sister and Nipen Boro had a love affair since more than 4 years and that the father of the appellant and the villagers had come to their house with a marriage proposal for her sister. During her cross-examination, PW-9 had stated that she had never heard any quarrel between the accused and the deceased. 14. During her cross-examination, PW-9 had stated that she had never heard any quarrel between the accused and the deceased. 14. PW-10, Sri Binanda Boro is known to both the deceased and the accused. He has deposed that the incident took place on 5.4.2015. After learning that Nipen was arrested, he went to the Police Station, where Nipen had confessed before Rabin Boro, Baburam Boro, Rajen Boro and himself that he had killed the deceased by strangulating her head and neck. PW-10 had also deposed that the accused had told that his family members did not allow the deceased to come to his house but the deceased wanted to come and, therefore, he had murdered her. Later, Nipen led the Police to the place where he had killed the deceased. At that time, Rabin Boro, Baburam Boro, Rajen Boro and he were present as witnesses. PW-10 has also stated that at the place of occurrence, the accused had told the Police that he had dragged her dead body to water by holding of her neck and threw her mobile into water. During his cross-examination, PW-10 had stated that the Police had recovered the dead body from the bank of Nonai river on 4.4.2015, and arrested Nipen (accused). 15. PW-14, Dr. Bhadra Kanta Sarma was the Medical & Health Officer on duty at the Udalguri Civil Hospital on 4.4.2015 and he had conducted the post mortem examination upon the dead body of the deceased Swdwmshri Daimari. According to the post mortem report, the following injuries were found in the dead body “More detailed description of injury disease (1) Fracture and dislocation of left remus of mandible. (2) Fracture dislocation of thyroid cartilages. (3) Fracture dislocation of C3 vertebrae. (4) Oedemotous spinal cord at C3 level. (5) Bruise at both breast. (6) Nail mark at left inner thigh. (7) Mucood vaginal discharge.” The doctor had opined that death was due to Asphyxia as a result of strangulation and was homicidal in nature. All the injuries were ante mortem. Time since death was more than 12 hours. PW-14 has, however, stated that whether sexual violence had occurred or not would have to be confirmed on receipt of opinion from the FSL. In his cross-examination by the defence, the PW-14 had clarified that he had not confirmed as regards any sexual intercourse caused by any person upon the victim. 16. Time since death was more than 12 hours. PW-14 has, however, stated that whether sexual violence had occurred or not would have to be confirmed on receipt of opinion from the FSL. In his cross-examination by the defence, the PW-14 had clarified that he had not confirmed as regards any sexual intercourse caused by any person upon the victim. 16. PW-18, Sri Naren Swargiary was the S.I. on duty at the Panery Police Station on 4.4.2015. Upon receipt of information as regards the incident, he was instructed to go to the place of occurrence. PW-18 had stated that on 4.4.2015 at around 8.15 a.m., the Officer in-Charge of Panery Police Station had received an information over phone from one Rajendra Boro (PW-17), President of Tangla Anchalik ABSU that dead body of a lady was lying at Dhupguri in the bank of river Nonai. Upon receipt of such information, the Inspector in-charge of the Police Station had made an entry in the General Diary and instructed him to visit the place of occurrence and to do the needful. Accordingly, he along with other Police personnel went to the place of occurrence and on reaching there, he found some ABSU members already present there. PW-18 has stated that on being shown by the persons present there, he saw the dead body. Then he informed the Officer in-Charge, Panery Police Station about the dead body with a request to send a Magistrate for holding the inquest over the dead body. After sometime, Magistrate came to the place of occurrence and asked the dead body to be shifted to the side of the river. Accordingly, the dead body was brought to the bank of the river. The dead body was identified by one Rabi Ram Boro, who was present there. At the place of occurrence, one vanity bag, one umbrella, one Nokia mobile phone, one sweater, one spectacle, one pair of hawai sandal and one jangia were found and the same were seized. Inside the vanity bag, one ATM(SBI) card, PAN card, one Voter ID card, tooth brush, Pendrive, one eye drop and one lipstik were found which were also seized. The Executive Magistrate had conducted inquest over the dead body, whereafter, the same was sent to the Udalguri Civil Hospital for post mortem examination. Inside the vanity bag, one ATM(SBI) card, PAN card, one Voter ID card, tooth brush, Pendrive, one eye drop and one lipstik were found which were also seized. The Executive Magistrate had conducted inquest over the dead body, whereafter, the same was sent to the Udalguri Civil Hospital for post mortem examination. On 4.4.2015, at around 2.40 p.m., Sri Prabin Daimari (PW- 1) had lodged an FIR and accordingly, Panery Police Station Case No. 24/2015 was registered and he was entrusted with the investigation in connection with the aforesaid police case. 17. PW-18 has further stated that on 4.5.2015 at about 2.30 p.m., he went to the village of the accused but did not find him in the house. Instead, he had found the parents of the accused at home and instructed them to send the accused to the Police Station for interrogation. On 5.4.2015 at around 12.30 a.m., Sri Sukur Boro, i.e., the father of the accused and other persons from the village had handed over the accused-Nipen Boro to the Police Station. On 5.4.2015, at around 8 a.m., he had recorded the statement of the informant Prabin Daimari at the Police Station. The I.O. has further deposed that on 5.4.2015 at about 9.30 a.m. he along with the SDPO Bhergaon, P.O. Panery Police Station and other Police personnel took the accused to the place of occurrence, when the accused had shown them the place of the crime and had narrated how he had committed the crime. According to PW-18, the accused had told that he came to the place of occurrence riding a bicycle and had sexual intercourse with the victim at that place where he had killed her. As per the PW-18, the accused had also stated that after killing the victim, he had dragged the dead body to Nonai river. Sri Rajen Boro, was present at the place of occurrence during their visit and recorded the entire matter in the mobile handset. The 10 has also stated that he had seized the Hero Ladies Cycle from the house of the accused in presence of witnesses and one “Jangia” used by the accused at the time of occurrence was recovered from the house of the accused. He then took the accused back to the Police Station and recorded his statement. The 10 has also stated that he had seized the Hero Ladies Cycle from the house of the accused in presence of witnesses and one “Jangia” used by the accused at the time of occurrence was recovered from the house of the accused. He then took the accused back to the Police Station and recorded his statement. He had also visited the place of occurrence on 4.4.2015 and drawn a sketch map, arrested the accused and forwarded him to the court. During his cross-examination, PW-18 has admitted that no statement of the witnesses were recorded under section 164, Cr.PC. 18. PW-19, Md. Sohrab Ali is the second Investigating Officer in this case, who took over the proceedings from the PW-18. PW-19 had collected the FSL report, recorded the statement of Minati Boro (PW-2), Raimali Daimary (PW-9) as well as statement of Rabindra Boro, Babu Ram Boro, Binanda Boro and Raajen Boro. Upon completion of investigation, he had submitted charge sheet against the accused-person under sections 120B/376/302, IPC. During his cross-examination, PW-19 has stated that though vaginal swab and blood sample of the accused was sent to the FSL for DNA test, yet, no result can be obtained due to the poor quality of the samples. 19. PW-3, Sri Daoharu Daimary did not see the incident but came to the place of occurrence and saw the dead body. He is an inquest witness and proved his signature Ext. 2(3) in the inquest report. PW-4 Sri Jamin Chandra Boro is another inquest witness, who has proved his signature Ext. 2(2) in the inquest report. PW-5, Sri Rabindra Boro is a seizure witness and has deposed that on 4.4.2015, when an information was received at the ABSU office regarding a female dead body floating in the Nonai river, he had rushed to the place of occurrence and saw the dead body of Swdwmshri Daimari. Ext. 3 is the seizure list by means of which, the Police had seized a vanity bag, umbrella, Nokia mobile, money bag, one blouse, watch, hawai chappal, underwear, SBI ATM card, PAN card, etc., and Ext. 3(1) was his signature. PW-6, Sri Dilip Boro is another seizure witness and he has proved his signature Ext. 3(2) in the seizure list. Likewise, PW-8, Sri Babu Ram Boro has also proved his signature Ext. 3(3) in the seizure list. 3(1) was his signature. PW-6, Sri Dilip Boro is another seizure witness and he has proved his signature Ext. 3(2) in the seizure list. Likewise, PW-8, Sri Babu Ram Boro has also proved his signature Ext. 3(3) in the seizure list. PW-13, Sri Paresh Daimary is another seizure witness who has proved his signature Ext. 3(4) in the seizure list. The testimony of these witnesses are otherwise not of much significance in this case. 20. PW-11, Smt. Bichari Boro is the mother of the accused and PW-12 Sri Sukur Boro is the father of the accused. Both these witnesses are seizure witnesses and have confirmed that the Police had seized one underwear and a cycle of their son by seizure list Ext. 4, which bears their signature. During cross-examination, PW-12 has stated that at around 12 p.m., Police qame and took away some selected clothes from the room of the accused and he had put his signature on a paper, which was actually a blank paper. 21. PW-15, Sri Lakhyajyoti Das was the Executive Magistrate-cum- Circle Officer, who had conducted the inquest over the dead body and submitted inquest report Ext. 2. PW-15 has proved his signature Ext. 2(4) in the inquest report. 22. PW-16, Sri Ranjan Ramchiary, appears to be the first person who had seen the dead body and informed the Police as well as the ABSU office. PW-16 has deposed that he had not seen the incident but on the day of the incident, at around 7.25 a.m. while he was crossing the Nonai river, he saw a female dead body and informed the local ABSU office. Thereafter, he went on his own way. After that, a few people assembled there. Later, Police and Magistrate came. 23. PW-17, Sri Rajen Boro has deposed that the accused was interrogated by the Police at the Police Sation in front of him and Rabindra Boro, Babu Ram Boro as well as Binanda Boro. At that time, he had heard the accused confessing that he had killed Swdwmshri Daimari. According to the PW-17, the accused had led them to the place of occurrence and there too, he had heard that the accused confessing to have killed the deceased Swdwmshri Daimari. PW-17 has also stated that the accused himself had shown the location of the dead body and stated that he had killed the deceased by strangulating her neck. According to the PW-17, the accused had led them to the place of occurrence and there too, he had heard that the accused confessing to have killed the deceased Swdwmshri Daimari. PW-17 has also stated that the accused himself had shown the location of the dead body and stated that he had killed the deceased by strangulating her neck. In his cross-examination, PW-17 has stated that the Police had arrested the accused on the next day of recovery of the dead body and recorded his statement about six days after the incident which took place on 3.4.2015. This witness has also stated that while the dead body was recovered, he did not see the accused at the place of occurrence. 24. In his statement recorded under section 313, Cr.PC, the accused has denied of the incriminating circumstances put to him, save and except admitting that there was a love affair between him and the deceased. 25. The fact that the accused had a love affair with the deceased is not in doubt. The prosecution witnesses, more particularly, the PW-1 as well as PW-9 have categorically deposed to such effect and their statement on the above count has remained un-shakened during the cross-examination. As a matter of fact, it has also come out from the evidence adduced by these witnesses that there was a marriage proposal sent to the house of the deceased by the father of the accused and it appears that the proposal was accepted in principle with a decision to solemnize the marriage after a few years since both of them were still studying. 26. Insofar as the “last seen together” circumstance is concerned, the aforesaid findings is entirely based upon the testimony of PW-2, who appears to be the Aunt of the deceased. This witness claims to have seen the accused and the deceased together on the previous evening at around 5.30 p.m. at the textile fair. However, it would be significant to note herein that although the incident had taken place on the intervening night between 3.4.2015 and 4.4.2015, the statement of this witness was recorded by the Police only on 18.4.2015, i.e., after a delay of 14 days. In the interregnum, the witness had claimed to have visited the Police Station at least on 3/4 occasions but the Police did not record her statement. 27. In the interregnum, the witness had claimed to have visited the Police Station at least on 3/4 occasions but the Police did not record her statement. 27. It would also be significant to note herein that PW-9, who is the sister of the deceased, had also deposed that her deceased sister had gone to Tangla stating that the accused had called her. However, PW-9 has not corroborated the statement of PW-2 as regards their presence together at the textile fair at Tangle. Moreover, the statement of this witness (PW-9) also appears to have been recorded on 18.4.2015, i.e., after a delay of 14 days. There is no explanation from the prosecution side as to why the statement of these two witnesses, i.e., PWs-2 and 9 were recorded after such inordinate delay. 28. Law is well settled that the circumstances of “last seen together” is a weak piece of evidence and, therefore, the same cannot be the sole basis of conviction. In the case of Kanhaiyalal v. State of Rajasthan, (2014) 4 SCC 715 , the hon'ble Supreme Court has held that the circumstances of “last seen together” does not, by itself, lead to the inference that the accused had committed the crime. There must be something more than that establishing the connectivity between the accused and the crime. In the instant case, save and except the testimony of PW-2, there is no other evidence to show that the accused was “last seen together” with the deceased. Not to speak of corroboration of the evidence of PW-2, whose evidence appears to be unconvincing, the delay of 14 days in recording her statement itself casts a serious doubt upon the prosecution case since there is no explanation as to why the statement of this witnesses was not recorded by the Police immediately after the incident. Even assuming that the victim and the accused were last seen together at the Tangla Textile Fair on the previous evening, yet, the dead body was evidently recovered after more than 12 hours since both of them had been seen together. Therefore, there is substantial gap between the time when the accused and the deceased were “last seen together” and when the dead body was recovered. Even if the evidence of PW-2 is taken on the face value, then also, there is nothing else on record to connect the accused with the crime. Therefore, there is substantial gap between the time when the accused and the deceased were “last seen together” and when the dead body was recovered. Even if the evidence of PW-2 is taken on the face value, then also, there is nothing else on record to connect the accused with the crime. The mere fact that the accused was having a love affair with the deceased, cannot be a ground to suspect that the deceased was killed by the accused. 29. Under the circumstances, we are of the view that the prosecution has failed to establish the circumstances of “last seen together” in this case. Even otherwise, in the absence of any corroboration, the circumstances of “last seen together” cannot in our opinion, be the sole basis of conviction of the appellant. 30. The alleged confession of the accused was admittedly made while he was in Police custody. If that be so, it cannot be said that the accused had made any confession. Moreover, there is no explanation from the I.O. as to why he did not get the statement of the accused recorded under section 164, Cr.PC before a Magistrate. Not only that, even the statement of the other persons, viz., Rabin Boro, Baburam Boro, Rajen Boro and Binanda Boro in presence of whom, the accused had allegedly confessed to have killed the victim, had not been recorded under section 164, Cr.PC. We are, therefore, of the view that there is no extra-judicial confession in this case. 31. This brings us to the last issue, i.e., the accused leading to the discovery of the dead body of the victim. We have already discussed in the foregoing paragraph that the dead body was first seen by PW-16. The evidence available on record clearly indicates that it was the PW-16 who had first seen the dead body and informed the local ABSU office. The statement of PW-16 to the above effect finds due corroboration from the evidence of PW-5 and PW-8. The IO, i.e., PW-18 has also confirmed that the first information about the incident was received over phone from the President of Tangala Anchalik ABSU. Immediately, thereafter, he had gone to the place of occurrence and seen the dead body. According to the PW-18, the accused was arrested on the next day and while in police custody, he had taken the Police to the place of occurrence. Immediately, thereafter, he had gone to the place of occurrence and seen the dead body. According to the PW-18, the accused was arrested on the next day and while in police custody, he had taken the Police to the place of occurrence. However, by that time, the dead body was recovered and even the inquest was over. In view of the above, it cannot be said that the dead body was recovered on being led by the accused. On a careful reading of the materials available on record, we are of the view that there is no evidence available on record permitting the learned trial court to come to the conclusion that the dead body was recovered by the Police on being led by the accused. 32. For the reasons stated above, we are of the view that the prosecution has failed to establish the chain of circumstances beyond reasonable doubt, so as to prove that it is none other than the accused, who had committed the murder of the victim. There are disturbing gaps in the investigation of the case besides un-explained delay in recording the statement of important witnesses. Moreover, the medical evidence did not support the prosecution case. FSL report also could not be obtained by the prosecution. Save and except, leading evidence to show that the victim had left her house for Tangla on 3.4.2015 on being called by the accused, there is nothing to connect the accused to the crime. 33. The prosecution had tried to project a bitter relationship between the accused and the deceased as the motive for committing the offence. However, the evidence available on record, viz., the testimony of PW-9 indicates otherwise. There is also nothing on record to conclude that the relationship between the accused and the deceased had broken down. Even the charge of rape brought by the prosecution side could not be established. Under the circumstances, we are of the unhesitant opinion that the prosecution has failed to prove the charge brought against the appellant/accused beyond reasonable doubt. 34. Such being the position, the impugned judgment and order dated 8.12.2017 passed in Sessions Case No. 115(U)/2015 is hereby set aside. The accused is hereby acquitted due to lack of evidence and is set at liberty. 35. We are informed that the accused is presently in the jail. 34. Such being the position, the impugned judgment and order dated 8.12.2017 passed in Sessions Case No. 115(U)/2015 is hereby set aside. The accused is hereby acquitted due to lack of evidence and is set at liberty. 35. We are informed that the accused is presently in the jail. As such, we direct that the appellant/accused be forthwith released, if his custodial detention is not required in connection with any other case. This appeal stands allowed. Send back the LCR.