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2022 DIGILAW 811 (GAU)

Brojen Das v. State of Assam

2022-07-27

ARUN DEV CHOUDHURY, N.KOTISWAR SINGH

body2022
JUDGMENT : N. KOTISWAR SINGH, J. 1. Heard Ms. R.D. Mazumdar, learned Amicus Curiae for the appellant. Also heard Ms. S. Jahan, learned Addl. P.P. Assam. 2. The present appellant preferred appeal against the Judgment dated 19.09.2017 passed by learned Sessions Judge, Lakhimpur at North Lakhimpur in Sessions Case No. 174 (NL) of 2016 by which the appellant has been convicted u/s 302 of IPC and sentenced to undergo life imprisonment with a fine of Rs. 5,000/- only in default to undergo rigorous imprisonment for a period of 6 months . 3. The prosecution case against the appellant is that an FIR was lodged on 16.09.2016 by one Suren Das, the brother of the appellant that on 16.09.2016 at 9 A.M. the appellant entered the house of his married sister Smt. Jayanti Das, wife of Sri Suren Das resident of Singimari Doloni village and grievously wounded her by giving dao blows on her and immediately thereafter, the complainant took his sister to Boginadi Primary Health Centre where she died while receiving treatment. Based on the aforesaid FIR a police case was registered as Boginadi P.S Case No. 132/16 u/s 302 of IPC. Investigation was launched thereafter and on completion of the investigation, the appellant was charged for committing offence u/s 302 of IPC and accordingly was tried before the learned Addl. Sessions Judge, FTC, Lakhimpur, North Lakhimpur for the said offence. 4. The prosecution examined as many as 8(eight) witnesses and the learned Trial Court after considering the evidence adduced and taking into consideration the plea of denial by the appellant, held that prosecution has been able to prove the charge against the appellant beyond the reasonable doubt and accordingly, convicted him under Section 302 of IPC. 5. Ms. R.D. Mazumdar, learned Amicus Curiae appearing on behalf of the appellant submits that it cannot be said that the charge against the appellant has been proved beyond reasonable doubt inasmuch as there was no eye witness and his conviction is based on circumstantial evidences and there are inconsistencies in the statements of the witnesses and as such, it cannot be said that the charge has been proved beyond reasonable doubt. On the other hand, Ms. S. Jahan, learned Addl. P.P. submits that there are sufficient circumstantial evidences on record to substantiate the charge. On the other hand, Ms. S. Jahan, learned Addl. P.P. submits that there are sufficient circumstantial evidences on record to substantiate the charge. To appreciate the rival contentions and also to examine the correctness or otherwise of the judgment rendered by the learned Trial Court, we will briefly refer the evidences on record. 6. PW-1, Sri Suren Das, the complainant stated that the accused appellant is his younger brother and the deceased Smti Jayanti his younger sister. He stated that the deceased sister alongwith her husband had been living with the accused in his house. He stated that his house is located at about half a furlong away from the house of the accused. On the day of occurrence at around 9 A.M. PW-1, on hearing hue and cry in the appellant’s house, went there and saw his sister writhing with cut wounds over her body and was not in a position to speak. He also saw the cut injury on her head. At that time, a lot of people had gathered there. The public apprehended his brother and handed him over to the police. He took his sister to Boginodi Hospital for treatment but she died after arrival in the hospital. He also deposed that he saw his accused brother armed with a ‘mit’ dao standing near her in a restless state with blood stain on his body. He also stated that the ‘mit’ dao held by his brother was seized by the police in his presence and there was witness to the seizure of the said weapon. In the cross-examination by the defence, he said he is not aware that his brother was suffering from madness at that time. He also stated that his brother pretends to be so, but he is not mad. He also stated that he does not remember stating before the police that his brother was present in the house in a restless state with blood stain on his body. He clearly stated that he did not witness the incident of assault. 7. The next witness is PW-2 namely, Sri Sanjoy Das, a neighbour. He stated that he knew the accused who resides near his house and the accused used to live in the deceased Smti Jayanti’s house. He clearly stated that he did not witness the incident of assault. 7. The next witness is PW-2 namely, Sri Sanjoy Das, a neighbour. He stated that he knew the accused who resides near his house and the accused used to live in the deceased Smti Jayanti’s house. He stated that the incident took place in the deceased Jayanti’s house at around 9.30 A.M. He also stated that upon hearing hue and cry, he went to the place of occurrence and saw the accused was holding a dao in his hand after assaulting his sister and chasing other persons gathered there. The people gathered there apprehended the accused and handed him over to the police. He also stated that he took the injured deceased to Boginodi Hospital for treatment but she died. He was a seizure witness of the dao taken from the accused by the police. In the crossexamination, he stated before the Magistrate that on reaching the place of occurrence he saw the accused waiting by the side of the deceased Jayanti with a dao in his hand and he was chasing the people to hit them with the dao. He denied that the accused is a mad person. 8. Next witness is PW-3 namely Sri Sunil Das, who was the husband of the deceased. He was not in the house when the incident occurred and came to know about the occurrence later on and as such not an eye witness. Similarly, other witness PW-5 namely, Md. Hazarat Ali is a neighbour, who was not an eye witness but was present at the place of occurrence after the incident occurred as he saw the deceased being taken to the hospital in a wounded state. He also stated that deceased Jayanti was elder sister of the accused and the accused had been living in the Jayanti’s house and her husband used to look after the appellant. 9. Tapan Das is another neighbour who was examined as PW-6 who as per the testimony was not an eye witness. Another witness is Smt. Basanti Das who was examined as PW-7. She was also not an eye witness but came to know about the incident later on. 10. Dr. 9. Tapan Das is another neighbour who was examined as PW-6 who as per the testimony was not an eye witness. Another witness is Smt. Basanti Das who was examined as PW-7. She was also not an eye witness but came to know about the incident later on. 10. Dr. Bhupen Saikia, PW-4 is an official witness who conducted the post mortem examination on the body of the deceased, who found the following injuries on the body: “A dead body of an adult female of average built, Rigor mortis present in all limbs: 1. Sharp cut (incise) wound in right palmtomiddle of 4 cm x 1 cm x 1 cm. 2. Incise wound in the knuddle of right hand. 3. Incise wound in the occipital region of scalp in 2 nos. of 15 cm x 1½ cm x both deep. 4. Incise wound in left parietal region of scalp of 2½ cm x 1 cm x bone deep. There was hemorrhage in the left lobe of brain. All the injuries are ante mortem in nature.” He gave his opinion that the cause of death is due to shock and hemorrhage as a result of injuries sustained. There was no cross-examination of the said doctor witness. 11. The other official witness is the I.O. of the case, Sri Brojen Kalita who was examined as PW-8. He narrated about the investigation conducted by him. In the cross-examination, he was asked as to whether the accused was mentally sick or not in which he stated that he did not know and he also stated that it is not a fact that despite having knowledge about the mental sickness of the accused person, charge was submitted against him by suppressing this fact. 12. After conclusion of the recording of the evidences of the witnesses, the appellant accused was examined under Section 313 of Cr.P.C. and to all the questions relating to the incriminating evidences which came out in course of trial, he denied the correctness of the same and he stated that he is innocent and did not commit the crime as alleged and he has been forcefully implicated and declined to lead any evidence in support of his defence. 13. We would like to reiterate the conclusion and reason thereof given by the learned Trial Court which is to be found in Para-27 of the judgment which is reproduced herein-below: “27. 13. We would like to reiterate the conclusion and reason thereof given by the learned Trial Court which is to be found in Para-27 of the judgment which is reproduced herein-below: “27. On perusal of the entire evidence, this Court finds that there is connected chain of events that proved the guilt of the accused in having murdered the deceased. Thus, on scrutiny of the evidence makes it clear that the deceased was in the company of the accused at the time of occurrence. They were seen together by the PW-1 and PW-2 when the deceased was found in critical injured condition and the accused was at that time holding a ‘mit-dao’. In his statement u/s 313 Cr.P.C. the accused denied the incriminating materials put against him. Even, he did not adduce any evidence on his behalf. The very important circumstance of the instant case is that the accused and the deceased were found at the place of occurrence and at that time, the accused was holding a ‘mit-dao’ and the deceased was in critical injured condition with injuries on her neck, back, stomach and chest and blood was oozing out from her wounds, and the accused is required to explain such circumstance, but he failed to offer any explanation as required u/s 106 of the Evidence Act. Therefore, the fact emerge is that the accused is denying that he was seen in the company of the deceased and this additional circumstance is unexplained by the accused. In the present case, the overall conduct of the accused regarding denial of every incriminating material is suspicious. As already stated above, prosecution has duly proved that the accused was in the company of the deceased at the time of incident. Prior to the occurrence, there was hue and cry and thereafter, the deceased was found in critical injured condition with injuries and blood was oozing out from her injuries, and at that time, the accused was also found near the deceased armed with a ‘dao’ in restless mood, and then the accused was apprehended by the local villagers and handed him over to the police. Police seized the ‘dao’ in question from the accused. Police seized the ‘dao’ in question from the accused. PW-1 and PW-2 are reliable and trustworthy for the fact that the accused and the deceased were found at the place of occurrence, where the deceased was lying in inured condition, and the accused was holding a ‘dao’ with blood stains on his body. Therefore, the accused is required to offer explanation as to what happened to his elder sister/deceased when he was holding a ‘dao’ with blood stains on his body, but the accused had not offered any explanation. This is the incriminating circumstance as to the conduct of the accused, which I suspicious. In his statement u/s 313 Cr.P.C. the accused did not state anything except denial. So far death of the deceased is concerned, the doctor, PW-4 had opined that the deceased died due to shock and haemorrahage as a result of the injuries sustained. The Doctor had clearly opined that the death was homicidal. In the above circumstances, this court is of considered view that no second view may be possible that death was not homicidal in nature. So far the reasoning of said opinion is concerned, the autopsy surgeon had duly satisfied the reasoning for the findings, and nothing could be elicited so as to hold that the death was not homicidal. Therefore, it is proved that death of the deceased was homicidal, the accused was in the company of the deceased at the time of occurrence, hearing hue and cry, local villagers came to the place of occurrence and found the deceased in critical injured condition with injuries on her person and the accused was found standing near the deceased armed with a ‘mit-dao’ with blood stains on his body in restless mood and the accused has failed to offer any explanation as regards to the attending facts and circumstances. As such, there is no reason to disbelieve the evidence of the prosecution witnesses. It is already stated that in a case based on circumstantial evidence, the circumstances or which, conclusion of guilt is to be drawn is not only fully established, but also all the circumstances so established should be of conclusive nature and consistent with the hypothesis of the guilt of the accused. The chain of circumstances must be so complete as not to leave any reasonable ground for disbelieving the consistency with the innocence of the accused. The chain of circumstances must be so complete as not to leave any reasonable ground for disbelieving the consistency with the innocence of the accused. Keeping in mind the above principle of law relating to circumstantial evidence on close scrutiny of the entire evidence on record, it shows that the deceased was in the company of the accused at the time of occurrence, there was hue and cry at the relevant time, and on hearing hue and cry, local villagers including PW-1, who is the elder brother of the accused as well as the deceased, came to the place of occurrence and found the deceased in critical injured condition and the accused was also found there with a ‘dao’ with blood stains on his body. The autopsy surgeon opined that death of the deceased was homicidal. The entire conduct of the accused shows that it is he, who had committed murder of the deceased and none else and after assaulting the deceased with a ‘mit-dao’ he remained at the place of occurrence when PW-1 and PW-2 came to the place of occurrence and saw the accused near the deceased armed with a ‘mit-dao’ with blood stains on his body in restless mood. During cross-examination of PW-1 and PW-2, nothing was suggested to them as to why they (PW-1 and PW-2) would falsely implicated the accused. The only suggestion put to these two PWs. (PW-1 and PW-2) and also to PW-3 and PW-7 was whether the accused suffered from mental disorder. Even otherwise, PW-1 being the elder brother of the accused as well as deceased had absolutely no reason to falsely implicate the accused. On the contrary, he was bold enough to depose only the truth at the cost of losing his younger brother. Though, PW-3 stated in his cross-examination, that the accused was suffering from some sort of mental disorder, but PW-1 (who is the elder brother of the accused), PW-6 and PW-7 during their cross-examination stated that the accused was not an insane person at the time of occurrence. Except these bold suggestions to these prosecution witnesses in their cross-examination, no reliable evidence has been produced by the accused in order to establish that he had suffered from unsoundness of mind.” 14. Except these bold suggestions to these prosecution witnesses in their cross-examination, no reliable evidence has been produced by the accused in order to establish that he had suffered from unsoundness of mind.” 14. Having stated the salient features of the evidence which was brought on record, we will examine as to whether there was sufficient evidential material on a vis-a-vis the conviction of appellant could be sustained. 15. We will now proceed to examine whether there are sufficient evidence brought on record to sustain the conviction and also whether the decision of the learned Trial Court is based on evidences and was correctly arrived at. 16. As discussed above, there was no eye witness as to the actual assault on the body of the deceased which lead to her death and as such, it can be said that the conviction of the appellant is based on circumstantial evidence. As far as law relating to circumstantial evidence is concerned, it is now well settled and restated from time to time. In this regard we may refer to the decision of Hon’ble Apex Court in Sharad Birdhi Chand Sarda vs. State of Maharastra, (1984) 4 SCC 116 : 1984 AIR 1622, in which it was held in Para-153 and 154 as follows: “153. 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. 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 Another vs. State of Maharashtra, (1973) 2 SCC 793 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. (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.” “154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 17. Thus, from the above it is clear that even if there is no direct eye witness, yet if there are circumstantial evidences which clearly point out unerringly to the complicity and if no other hypothesis is possible except for the guilt of the accused, conviction can be sustained even on the basis of circumstantial evidences in absence of direct evidence. As discussed above though there is no eye witness on the actual assault of the deceased leading to her death, yet there is clear evidence to the fact that the appellant was very much at the place of occurrence near the fatally injured body of the deceased holding a Dao. As discussed above though there is no eye witness on the actual assault of the deceased leading to her death, yet there is clear evidence to the fact that the appellant was very much at the place of occurrence near the fatally injured body of the deceased holding a Dao. PW-1 Suren Das, the own brother of the appellant as well as the deceased though related to both, cannot be said to be an interested witness inasmuch as he was the brother of both the deceased as well as the appellant and as such in absence of any material to show that he was ill disposed to the appellant, we do not find any reason why PW-1 should falsely implicate the appellant. In his deposition before the Court, he categorically stated that after hearing hue and cry he went to the house of the deceased where he found his sister writhing with cut wounds on her body and he also saw accused brother armed with a dao standing near her in a restless state with blood stain on his body. Similarly PW-2, a neighbor also stated in categorical terms that when he went to the place of occurrence he saw the accused appellant holding a dao in his hand after assaulting his sister and was chasing other person who were gathered at the place of occurrence. Thereafter, he alongwith the other members gathered there and apprehended the accused and handed him over to the police. Thus, the evidence of the aforesaid PW-2 namely Sanjay Das, the neighbor, in our view, cannot be doubted inasmuch as he is not related to either the deceased or the appellant and as such cannot be said to be an interested witnesses. He had the occasion to witness the aforesaid incident by virtue of being a neighbour and had easy access to the place of occurrence being located in near proximity to the place of occurrence. It may be mentioned that the incident occurred in broad day light during the morning at around 9 A.M. and as such, the possibility of not being able to identify the appellant does not have arise. 18. There is clear evidence that the appellant is brother of the deceased. There is also clear evidence that the appellant is staying in the same house alongwith the deceased. Thus, both were related by blood. 18. There is clear evidence that the appellant is brother of the deceased. There is also clear evidence that the appellant is staying in the same house alongwith the deceased. Thus, both were related by blood. If any suggestion is made that it was not the appellant who had caused the injury to the deceased, if the appellant was very much at the place of occurrence and if the deceased was struck by somebody else, naturally the appellant being the own brother of the deceased, would have reacted in a manner expected of a brother. However, there is no such evidence that the appellant had done anything to save the life of his own sister who was under attack. Further, there was no suggestion or any doubt on the part of the defence that the assault could have been made by some other person. There is clear evidence that when the assault took place, the appellant was very much at the place of occurrence as stated by his own brother PW-1, and also PW-2, a neighbor. Of course, it is on record that though the dao with which appellant was said to have assaulted the deceased, was seized by the police, but the said dao was not produced in course of trial but the prosecution produced the seizure list only showing the seizure of the said dao. However as regards the aforesaid issue, the law is clear that the non production of the crime weapon in course of trial or for that matter non seizure of weapon is not necessarily fatal to the prosecution, if there are other credible evidences to show the commission of crime and as to the involvement of the accused in committing such crime. In the present case, what we have noted is that there is a clear medical evidence to show that the deceased had received fatal injuries as referred above, which shows sharp cut injuries, incised wound which can be caused by weapon like dao, holding of which by the appellant was witnessed by two witness i.e. PW-1 his own brother, PW-2 his immediate neighbor. Therefore, the said injuries were caused by a dao cannot be doubted even if the said dao which was not produced in course of the trial. Therefore, the said injuries were caused by a dao cannot be doubted even if the said dao which was not produced in course of the trial. It may also be mentioned that though the dao seized was not produced before the Trial Court, the seizure of dao was witnessed by PW-2, a neighbor as well as PW-1, who were all examined, but the seizure of dao was never questioned or doubted by the defence. 19. Under the circumstances, we are of the view that non production of seizure weapon of crime will not be fatal to the prosecution case. Similarly, we are of the view that even if no eye witness was examined who witnessed the actual assault, PW-2 in his evidence clearly mentioned that the appellant was carrying a dao in his hand after cutting his sister. There are no reason for the appellant to remain at the place of occurrence with a dao near the grievously injured sister. 20. Under the circumstances, we are also of the view that the reasons assigned by the learned Trial Court for convicting the appellant does not suffer from any infirmity which will require any interference in this appeal. 21. Accordingly for the aforesaid reasons, we do not find any merit in the appeal and accordingly, the appeal is dismissed. 22. Ms. R.D. Mazumdar, learned Amicus Curiae who has ably assisted this Court in conducting this appeal may be given the honorarium at the rate fixed as per Rule. 23. Though we have dismissed the appeal there is an aspect which has concerned us. From the original records including the Case Diary which have been produced before us, it appears that an application was made by I.O. of the case for medical examination of the accused appellant. However, nothing is found on record as to the finding or report of the medical examination. There were some suggestions made during the cross-examination of the witnesses that the appellant was of unsound mind, though the same had been denied by the witnesses. Though the I.O. of the case has denied that PW-3, who is the husband of the deceased as well as brother-in-law of the appellant stated during the cross-examination that they did not know properly whether the accused was suffering from any mental disease or not, it appears that the appellant did have certain problem. Though the I.O. of the case has denied that PW-3, who is the husband of the deceased as well as brother-in-law of the appellant stated during the cross-examination that they did not know properly whether the accused was suffering from any mental disease or not, it appears that the appellant did have certain problem. Thus, there is an indication that the appellant perhaps might have been suffering some mental illness. We have this observation for the reason that the appellant is the brother who assaulted his own sister in such a cruel manner by causing as many as four fatal injuries on the body of his own sister, apparently without any provocation, and if that is so, we find it difficult to visualize a situation where a normal person would struck his own sister in such brutal manner without there being any provocation. We are also not able to make any observation as to whether there was any provocation or not, in absence of any evidence in this regard, as the records is totally silent on this issue. 24. Under such circumstances, we are of the view that there may be a possibility of the appellant being not of a sound mind. If that is so, we are of the view that the State shall examine as to the mental condition of the appellant, so in the event, the appellant is found to be unsound mind, necessary treatment can be given to the appellant. Accordingly, the Jail authority/competent authority will do the needful to examine the mental condition of the appellant and provide necessary treatment. 25. Since Ms. Rita Das Mazumdar has assisted this court as an Amicus curiae, if there be any finding by the jail authority/competent authority that the appellant is suffering from mental illness, the same may be intimated to Ms. Rita Das Mazumdar so that she may take necessary consequential steps for the appellant. In this regard, the North Lakhimpur District Legal Service Authority may also render necessary assistance to Ms. Rita Das Mazumdar, if there be any need for the learned Amicus to interact with the convict. 26. We also place on record the able assistance rendered by Ms. Rita Das Mazumdar, learned Amicus Curiae who may be paid her honorarium as per rules.