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2022 DIGILAW 405 (GAU)

Tulen Manki v. State Of Arunachal Pradesh

2022-04-19

KALYAN RAI SURANA, ROBIN PHUKAN

body2022
JUDGMENT : (Kalyan Kumar Surana, J.) : - 1. Heard Mr. T. T. Tara, learned Amicus Curiae appearing for the applicant, namely, Shri Tulen Manki as well as Mr. U. Bori, learned Addl. PP representing the State. 2. This is a jail appeal filed by the appellant against the judgment and order dtd. 5/11/2019 passed by the learned Sessions Judge Khonsa in KSA Sessions Case No.50/2019 by which the appellant was convicted of the offence committed under Sec. 304/201 IPC. The appellant was sentenced to undergo Life Imprisonment and also to pay a fine of Rs.10,000.00 for offence under Sec. 304 IPC and he was also sentenced to undergo rigorous imprisonment of 7 years for offence under Sec. 201 IPC with fine of Rs.5000.00 with default clauses operating for non-payment of fine. This jail appeal was forwarded by the Deputy Superintendent, District Jail, Tezu. Accordingly, this is an appeal from conviction under Sec. 374 (2) of the Cr.P.C. This Court vide order dtd. 17/2/2020, had appointed Mr. T. T. Tara, learned counsel as the Amicus Curiae. 3. The prosecution had started rolling on the basis of an FIR dtd. 18/12/2017, lodged by one Litwang Lowang before the Officer-in Charge, Deomali Police Station, alleging that on the previous night one of his labourer, namely, Shri Noresh Gowala, aged about 55 years, was killed by the appellant and his mother, namely, Smti. Reena Manki and that both the accused had burnt the dead body by burning the cowshed and thereafter buried the dead body to escape from their crime in order to mislead the law. In course of time, on completion of investigation, Charge-Sheet No. 05/2018, dtd. 9/3/2018, was submitted against the appellant. It may be mentioned here that on the ground that no clinching evidence could be collected against the co-accused, Reena Manki was released on her own bond by the learned Trial Court. In course of trial, charges were framed against the appellant by order dtd. 7/5/2019 under Sec. 454 IPC, 304 Part-I IPC and 201 IPC. 4. The prosecution had examined 5 (five) witnesses viz , Liwang Lowang (PW-1), Shri Anik Tanti (PW-2), Dr. Pongkhu Monwangham (PW-3), who had conducted the Post-Mortem examination, Shri Nokpam Lowang (PW-4), Sub-Inspector of Police and Shri Kagum Nomu (PW-5), Inspector of Police. 5. 7/5/2019 under Sec. 454 IPC, 304 Part-I IPC and 201 IPC. 4. The prosecution had examined 5 (five) witnesses viz , Liwang Lowang (PW-1), Shri Anik Tanti (PW-2), Dr. Pongkhu Monwangham (PW-3), who had conducted the Post-Mortem examination, Shri Nokpam Lowang (PW-4), Sub-Inspector of Police and Shri Kagum Nomu (PW-5), Inspector of Police. 5. On the basis of evidence, the learned Sessions Judge, Khonsa examined the appellant under Sec. 313 Cr.P.C. and formulated the following points for determination: (i) Whether the accused person namely Tulen Manki has committed the offence of lurking house trespass or house breaking in order to commit offence punishable with imprisonment; (ii) Whether the accused Tulen Manki has caused death of late Lt. Noresh Gowala with the intention of causing such bodily injury with the knowledge that he is likely by such act to cause death and is punishable you U/s 304 IPC; (iii) Whether accused Tulen Manki has burnt down the cowshed with the dead body of Noresh Gowala and thereafter buried the half burnt dead body of Noresh Gowala with intention to cause disappearance of the evidence of offence and thereby punishable under Sec. 201 IPC. 6. In respect of determination of point No. 1, the trial Court was of the opinion that the prosecution could not prove beyond reasonable doubt that the appellant had committed offence punishable under Sec. 454 IPC. It is from the evidence of the PWs', the learned Trial Court had culled out the circumstances of the alleged crime and held that the appellant had falsely alleged before PW. 1 on the next morning of crime that the deceased had assaulted him and fled away and arrived at a conclusion that the entire materials on record led to the fact that none other than the appellant has assaulted the deceased with an intention to kill him and accordingly, holding that the prosecution has proved beyond the reasonable doubt, held the appellant guilty of committing offence under Sec. 304 IPC. In respect of determination of point No.3, it was held that the weapon of offence was hidden by the appellant which was admitted during his examination under Sec. 313 Cr.P.C and taking cognizance of the previous statement of the appellant to the effect that the deceased had assaulted him and ran away, arrived at a conclusion that the appellant had mis-represented facts to conceal the offence and to save himself and therefore, it was held that the prosecution had proved beyond reasonable doubt that the appellant had committed the offence under Sec. 201 IPC, and accordingly, by holding that the appellant was not entitled to benefit under Sec. 360 Cr.P.C. or under the Probation of Offenders Act, convicted the appellant under Sec. 304 IPC and 201 IPC as indicated above. The sentences were ordered to run concurrently. 7. The learned Amicus Curiae, by referring to the evidence on record, has submitted that there was no direct evidence against the appellant as there was no eye witness to the occurrence. Accordingly, it is submitted that the entire conviction is based on circumstantial evidence. It is submitted that the alleged weapon of offence, which is a bamboo stick allegedly hidden away by the appellant, was not sent for forensic examination and moreover there was no attempt to demonstrate that the nature of injuries caused on the deceased could have been inflicted by the said weapon of assault i.e. bamboo stick. Accordingly, it is submitted that there was no evidence to connect the weapon of offence with the alleged crime and in support of his submission, reliance is placed on the decision of this Court in the case of Muhi Gogoi Vs. State of Assam and Anr., reported in 2020 (1) GLT 306, to bring on the point that in case where the prosecution had grossly failed to prove the chain of circumstances, the conviction of the accused is liable to be set aside. It is also submitted that the statement of the appellant, regarding the appellant leading the prosecution to recovery of the weapon of assault was proved in accordance with law and the I.O. also failed to get the statement of the appellant recorded by a Judicial Magistrate. It is also submitted that the statement of the appellant, regarding the appellant leading the prosecution to recovery of the weapon of assault was proved in accordance with law and the I.O. also failed to get the statement of the appellant recorded by a Judicial Magistrate. It is also submitted that there was no circumstantial evidence to connect the appellant with the alleged crime and therefore, the learned Amicus Curiae has assail the conviction and sentence imposed upon the appellant. 8. The learned Addl. PP contends that the prosecution case cannot be discarded completely as the conviction was based on cogent circumstantial evidence and materials available on record and it is submitted that the unbroken chain of circumstantial evidence conclusively suggests the commission of the offence by the appellant. 9. On examination of evidence on record, it is seen that there is no eye witness to the alleged incident of assault and the killing of the victim by the appellant. It may be mentioned here that originally the mother of the appellant, namely, Smti. Reena Manki was also arrested as an accused of the offence and later on, since no evidence was found against her, her name was dropped in the charge sheet and she was not sent for trial. It is also noted from the evidence of the Doctor who had conducted the Post-Mortem examination, being PW. 3, that on examination of the dead body, he found injury of laceration of about 5 cm upto subcutaneous region, burn injury in the back extending from the neck to the glutei region and burn injury on the right palm near the hypotiner region and there was no sign of ligature mark over the neck, scalp and skull were normal. The membrane was intact with extra dural haematoma in the brain haemorrhage was seen in frontal area. No injury or fracture were noted in the muscle or bone. Therefore, the opinion of the PW. 3 was that the death was caused due to internal head injury and the burned injury was post mortem in nature. 10. It is already indicated above, that there is no eye witness to the alleged crime. The case of the prosecution is that the bamboo stick which was the weapon of assault was recovered at the instance of the appellant. However, the prosecution has failed to examine any witness in this regard. 10. It is already indicated above, that there is no eye witness to the alleged crime. The case of the prosecution is that the bamboo stick which was the weapon of assault was recovered at the instance of the appellant. However, the prosecution has failed to examine any witness in this regard. Moreover, memo regarding the disclosure, leading to the recovery was also not recorded/prepared and proved. In this regard, the Court has examined the evidence of the I.O. i.e. PW. 4, who had relied on the alleged confession made by the appellant of having killed the deceased with a bamboo stick. However, in course of his cross-examination, PW. 4 has stated that he has not sent the bamboo stick for FSL examination as the same was already tampered and he had also admitted that he had not found any direct evidence who has seen the accused/appellant killing the deceased. It may be mentioned herein that the alleged weapon of assault i.e. the bamboo stick was not produced and exhibited in the Court as a material exhibit. It is also noted that although, as per the evidence of the I.O., the appellant had made a confession before him in course of investigation but no steps was taken to produce the appellant before the Magistrate to have his confessional statement recorded. No cognizance of confession made by an accused before police can be taken in view of Sec. 25 of the Evidence Act. 11. The learned Addl. PP has placed reliance on the statement made by the appellant under Sec. 313 Cr.P.C., specifically with regard to Question No. 12 which was to the effect that: "the PW.4 is S.I. N. Lowang, who has deposed that you killed Noresh Gowala with a bamboo stick and as per your disposal and identification, the bamboo stick was recovered from your residence. What do you have to say on this?", to which the appellant had answered 'it is a fact'. Although, it appears from the 313 statement that the appellant had admitted of the two circumstances, (i) confession of having killed the deceased by a bamboo stick and (ii) the bamboo stick was recovered at his instance, both these circumstances having not been proved by other reliable cogent evidence, for which the chain of circumstances cannot be said to be completed. The statement made by the appellant while he was examined under Sec. 313 Cr.P.C. cannot be a basis of his conviction. In this regard, it is too well settled that when the Court relies on the circumstantial evidence alone, the principles laid down by the Hon'ble Supreme Court in the case of Sharad Birdhi Sarda Vs. State of Madhya Pradesh, reported in (1984) 4 SCC 116 , wherein, it has been held as follows: "152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade and Anr. V. State of Paharashtra where the following observations were made "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 12. The said principles have been followed consistently in various decision by the Supreme Court as well as by this Court. 153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 12. The said principles have been followed consistently in various decision by the Supreme Court as well as by this Court. Thus, it is well settled that in cases which rests wholly on the circumstantial evidence, the prosecution is required to prove each and every circumstances independently in form of a complete and unbroken chain which would lead to no other conclusion but it is the accused alone who could have committed the offence. In other words, a chain of circumstances must be consistent only with the guilt of the accused and inconsistent with his innocence. 13. On coming to the judgment of the learned Trial Court, the learned Trial Court had taken cognizance of the circumstances, whereby, reliance was placed on the statement made by the appellant that the deceased had assaulted him and fled away and it was concluded by the learned Trial Court that the said representation was made by the appellant to conceal the crime and to save himself. The evidence of statement by the PW. 1 would not be admissible in the absence of any independent witness concurring such evidence of PW. 1. In this regard, in the examination-in-chief of PW. 1, he has stated that the appellant had shown some injury mark on the head and told PW. 1 that the said injury was caused by the deceased. In this regard, there is no evidence on record that the prosecution had got the appellant medically examined to negate the fact that he was assaulted by the deceased. It is further seen that in his examination-in-chief, the PW. 1 had given an opinion to the effect that: "I was confirmed that none other than the accused Tulen Manki have committed the crime and for saving himself he has given allegation that Naresh Gowala had run away after assaulting him". Therefore, it reveals that it is on the basis of the opinion given by the PW. 1 that the learned Trial Court had arrived at a conclusion that the appellant had made a false statement to exculpate himself from the crime. Further, the said evidence cannot be said to be a clinching evidence so as to convict the appellant or homicidal death of the victim. 1 that the learned Trial Court had arrived at a conclusion that the appellant had made a false statement to exculpate himself from the crime. Further, the said evidence cannot be said to be a clinching evidence so as to convict the appellant or homicidal death of the victim. There is no other evidence to link either the appellant with the commission of the offence. This Court in the hereinbefore referred case of Muhi Gogoi (supra) had discussed the issue of the police not sending the weapon of assault for forensic examination and in the absence of any forensic test on the weapon of assault, held that it would be difficult to link with the commission of offence further holding that the same shall create a gap or a break in the chain of circumstance and therefore, it was held that in a case of circumstantial evidence, failure to sent the weapon allegedly used in the crime, for chemical examination is fatal, reason being that in absence of such examination, the chain of circumstance would remain incomplete. In this regard, this Court had placed reliance on the decision of the Supreme Court in the case of S. K. Yusuf Vs. State of West Bengal reported in (2011) 11 SCC 754 . 14. Upon analysis of the evidence of the PWs, there is no circumstances which would lead to any inference any animosity between the appellant and the deceased. Moreover, no circumstances has been brought on record and prove to establish that there was some dispute, owing to which the deceased was killed by the appellant. Under such circumstances, owing to the total lack of evidence to connect the appellant with the homicidal death of the victim, the Court is unable to concur with the finding of the learned Trial Court to the effect that circumstantial evidence proved beyond reasonable doubt that the appellant had committed the offence punishable under Sec. 304 and 201 IPC. The Court is also unable to concur with the finding recorded by the learned Trial Court that there was an unbroken chain of events suggesting the commission of the offence by the appellant. The Court is also unable to concur with the finding recorded by the learned Trial Court that there was an unbroken chain of events suggesting the commission of the offence by the appellant. Therefore, in the absence of any evidence that the appellant had killed the deceased, as there is no independent witness to support the prosecution case about the appellant leading to recovery of weapon of assault and absence of any eye witness of the alleged offence, the Court is inclined to hold that there was any circumstantial evidence available to connect the appellant with the alleged offence and moreover, the prosecution having failed to prove the discovery memo leading to recovery of the alleged weapon of assault, the chain of events remains broken. Therefore, in view of the discussions above, the Court is of the considered opinion that the prosecution evidence is grossly inadequate to prove the case. Accordingly, the appellant has been able to make out a case for setting aside his conviction and sentence. 15. In the result, this appeal stands allowed and the appellant-accused would be entitled to be released and set at liberty, if not required in connection with any other case. 16. The learned Amicus Curiae would be entitled to his usual legal fees. 17. The LCRs be sent back.