Gauhati High Court
Talar Sorum vs State Of Arunachal Pradesh on 14 November, 2007
Equivalent citations: 2007(4)GLT905
Author: Aftab Hussain Saikia
Bench: Aftab Hussain Saikia, P.K. Musahary
JUDGMENT Aftab Hussain Saikia, J.
1. Heard Mr. P.K. Tiwari, learned Counsel appearing for the appellant and Mr. B. Banerjee, learned PP representing the State of Arunachal Pradesh.
2. The conviction of the appellants under Section 302 IPC and sentence to undergo rigorous imprisonment for life with a fine of Rs. 5000/- in default of which to undergo further rigorous imprisonment for 6 months rigorous imprisonment so handed down by the learned Additional Sessions Judge, First Track Court, Basar, Arunachal Pradesh in BSR/SESS No. 463/2005 have been assailed in this Criminal Appeal.
2(a). The prosecution case in brief is that one Tajin Dui, P.W. 9 lodged a written complaint without a date with the Officer-in-Charge of Daporijo Police Station alleging that his sister Smti Yado Sorum (hereinafter referred to as "the deceased") was killed by her husband Sri Talar Sorum, the appellant with a dao near at IFCD Office Daporijo on 14.6.2000 at about 1420 hrs.
3. The Police on completion of the investigation submitted charge-sheet against the accused appellant under Section 302 I.P.C. During the trial the prosecution examined as many as 10 witnesses when defence examined 1 (one) i.e. Larto Sorum. The appellant was also examined under Section 313 Cr.P.C.
3.(a). Admittedly there was no eye witness to prove the incident of killing of his wife by the appellant.
4. The learned Judge have closely appreciated the material evidence on record including oral as well as documentary evidence and those exhibits basically Exbt.2, seizure list and Exbt. 3 with Exbt. 7 the Forensic Laboratory Report and also upon hearing the learned Counsel for the parties, found the appellant guilty of the offence of killing his wife the deceased and accordingly convicted and sentenced him as already indicated above. Hence this Criminal Appeal along with Criminal Reference.
5. P.W.7 the Doctor who conducted the autopsy of the dead body of the deceased found the following injuries as revealed by him in his evidence:
1. External Appearance
i) Neck-1 cut injury size 16cmx3cm. (2) 5cmx2cm.
ii) Head (1) Fronted region cut injury of size 8 cm x 1cm. Bone is also cut.
(2) Left side of the head 6cm x 1cm. Bone is also cut.
(3) Left side-6 cm x1 cm and bone is also cut.
(4) Rt side-3 cmx 1cm sharp cut.
(5) Middle of the head cut injury of size 5 cmx 1cm.
iii) Back (1) Loen region 18cm x4cm deep cut. (2) Middle of back 6cmx 1.5cm cut injury.
iv) Right Arm - Forarm exterior side 5cmx3cm cut injury Hand dorsalaspect 7 cm x 0.3 cm. Amputation of Ring finger.
v) Left Arm Left Arm Ring finger 4cmx 1 cm cut injury.
Thumb finger 2cmx2cm.
Dorsal aspect of palm 3cmx 1 cm.
2. Cratium and Spinal Canal
i) Sckalp skull, verebrane Fracture of skull as described vertebrae not examined.
ii) Membrance = Congested.
iii) Brain and spinal Cord-1. Brain Congested, 2. Spinal Cord not examined.
Sd/- Addl. Sessions Judge, (FTC),Basar,Wet Siang Dist. (A.P.)
3. THORAY
1. Walls, Hibs and Cartilases-Healthy
2. Pleuvae Healthy
3. Larynx and tracheae-Healthy
4. Right and Left Lung-Healthy
5. Pevicardium, Hearth and vessels-All healthy.
4. ABDOMEN
1. Walls peritorium, mouth, pharynx, oesophagus-All healthy.
2. Stomach and its contents-contains partially digested food materials.
3. Small intestine and its contents - healthy and contains fluiday materials.
4. Large intestine and its contents healthy and contains faces.
5. Liver, spleen, kidneys, bladder and organs at generation external internal-All healthy.
5. MUSCLES? BONS AND JOINTS.
1. Injury-Already stated under the heading of the external appearance.
2. Decese of deforming - NIL
3. Practur-Already stated under the heading of the external injury.
4. Dislocation-NIL.
6. In his opinion the doctor stated that the death was due to shock and haemorriage which resulted from injuries caused due to cutting of sharp instruments.
6.(a). In the background of the above injuries so found on the person of the deceased, Mr. Tiwari, the learned Counsel representing the appellant has submitted that the entire findings of the learned Judge basically being based on the circumstantial evidence of those prosecution witnesses and the report of the Foresic Laboratory cannot be sustained as the prosecution could not prove its case beyond reasonable doubt. According to him, the circumstances from which the conclusion of guilt could be drawn was not fully established and the chain of evidence was not complete to rope in the appellant under offence of commission of killing ofhis wife. For attracting his conviction under Section 302 IPC the learned Counsel has drawn our attention to the relevant portion of the evidence of the witnesses including P.W.9 who was the informant and also the report so submitted by the Forensic Laboratory. It is also stated on behalf of the appellant that admittedly the occurrence took place in the market place in a broad day light. It is surprising to see that the prosecution did not prefer to examine any eye witness though at the place of occurrence many persons ought to have been present. Despite the same, the prosecution preferred only to rely upon on circumstantial evidence of those witnesses who did not even see the occurrence.
6(b). Before appreciation of the other evidence, let us first examine carefully the evidence of P.W.9, Sri Tajin Dui. This witness in his deposition categorically stated that on the relevant date when he was in his shop at Daporijo he was informed by one Sri Tanya Mosu that the deceased was killed by the appellant. Having got the information he went to the spot where he did not find the dead body there and then he went to the Hospital and there he was told by said Tanya Mosu that the dead body had been shifted to the hospital. When he reached the Hospital he was informed by the sisters that the deceased had already died. He specifically mentioned that the lodged the complaint on the next day of the incident after the burial of the deceased and after the case was already taken over by the police as the accused/appellant surrendered to the police himself immediately. He further stated that the deceased was his own sister of his father and as such she was his paternal aunt. He also deposed that though in fact the relation between his aunt and the appellant was normal, there was a controversy between the deceased and the appellant for keeping the younger brother of the accused by the deceased suspecting an affairs between them and that could have been the reason of the killing of the deceased. He also witnessed that he saw the dead body of the deceased with the injury sustained by her being the cut injury with the use of dao. He reiterated that the accused surrendered before the authority on the very day of the incident. In cross, the testified that one Tanya Mosu informed him that his aunt was cut with dao by the accused and by the time when he reached the hospital he found her dead and sisters were trying to giving her water. The post mortem over the dead body of the deceased, according to this witness, was conducted on 15.6.2000 and it was emphatically stated that the dead body was already buried after two days of the incident i.e. on 16.6.2000 and after burial of the dead body of the deceased he lodged complaint against 3 persons namely 1. Talar Sorum, the accused, 2. Jisok Lucy Sorum and another whom he did not remember and the same might be available in the complaint, which was already exhibited earlier. He also stated that he did not personally see the accused surrendering to the police but he came to know from the police only that the accused himself surrendered to the police. He also testified that the person who was suspected was Kolin Sorum the P.W.6 who happened to be the younger brother of the accused. He did not see personally or know about the illicit affair between the deceased aunt and Kolin Sorum, P.W.6 the younger brother of the accused. It was also stated that since there was a controversy between his deceased aunt and the accused concerning illegal and illicit affairs which subsequently came up to the Kebang that held for twice in which he was also present. However in that Kebang the illicit affairs could not be proved but to maintain the cordial relation between the husband and wife the accused sacrificed the mithun.
7. From the close scanning of the evidence of P.W.9 it would go to show that according to him, the appellant surrendered before the Police and he was informed about the entire incident by one Tanya Mosu. However interestingly the said Tanya Mosu was not examined by the prosecution.
7(a). Now let us scurtinise and assess the deposition of other witnesses. P.W.1, Sabu Gunja, deposed that he was the Head Gaon Burah of Dabu Village of Chetam Circle and as such he had the responsibility to hold Kebang relating to civil and criminal cases. But, according to him, he did not remember whether there was any Kebang held on 11,12, and 13 concerning the accused. However, he learnt from the public that the accused killed his wife.
8. P.W.2 Mrs. Yapa Sorum was the daughter of the deceased and the appellant. She deposed that she did not exactly know how her mother died but she heard that her mother was killed by the accused on 14.6.2000. At that time although she was present at Daporijo, she was then in the house of her friend. On that day somebody informed her at Daporijo Bazar (New market) abut the incident. Having heard the information about the incident she rushed to the spot near State Bank of India and saw that her mother had already died and the police were present near the dead body. She saw cut injuries on the neck and hands. She saw her mother last alive on the day before the incident i.e. 13th June, 2000. She did not remember when he last saw her mother with her father. After the death of her mother she did not see her father and suspected her father for killing her mother. She subsequently stated that the information about killing of her mother was given to her by the salesman of the shop of her father. She also told that Tajin Dui P.W.9 was her maternal uncle. In cross, she stated that relation between her father and mother was fine. On the date of death of her mother, she was at Golden market, Daporijo. Due to usual arguments as husband and wife, there was strained relation between them. She knew that her father married another wife and she did not know where her father's second wife did stay.
9. P.W.3, Sri Tapa Lusi Sorum, the younger brother of the appellant testified that on 14.6.2000 he was at Daporijo during which he was on leave from his service duty at Basar SSB. Having come to Daporjio from Basar, on that day he came to the house of the accused, who happened to be his own elder brother for taking lunch. On his arrival at the house of the accused alongwith another Sri Pujum Sogum he found the daughter of his elder brother and one of his friend were present in the house and he asked them to prepare lunch for them but they refused and left the house. Meanwhile from the neighbouring people they came to know that the wife of his elder brother was killed by some body. It was also learnt that her dead body was kept at the District Hospital, Daporijo. Having so heard he along with his elder brother and Pojum Sogum rushed to the Hospital and found that the deceased had already died. By the time the police also came there including the public. In the meantime the police arrested his elder brother the accused but he could not say as to why he was arrested. According to him, so far he knew both his elder brother and his wife maintained cordial relationship between them. In cross, he stated that at the time of his arrival in the house of his elder brother he was not present in his house. Some time later his elder brother came back from his duty from Town Middle School Daporijo. On the next date of incident, they received the dead body of the deceased. Thereafter his sister-in-law was buried. During the burial dead body of his sister-in-law, his elder brother was not present as he was in the police custody. Against the Court's question he replied that he did not know about the 2nd marriage of his brother as he was serving SSB Personnel outside.
10. So far P.W.3, Sri Pogia Sorum is concerned, he came to know about the incident from somebody. He heard from somebody that the accused killed his wife. Beyond that he could not depose anything. On the other hand P.W.5, Sri Pujam Lusi Sorum also deposed in the same line of P.W.4 and he deposed that he came to Daporijo town where he got an information that the wife of the accused had died at the Daporijo Hospital and the appellant was arrested by the police. In cross this witness stated that on receipt of the information about the death of the wife of the accused at the Hospital the accused Talar Sorum also came to the hospital to see the dead body of the wife wherefrom the police arrested him.
10(a). The P.W.6 Sri Koli @ Talin Sorum against whom a suspicion has been pointed for having illicit relation with the deceased as revealed from the deposition of P.W.9, in his disposition stated that on 14.6.2000 he was at Guwhati looking after his younger brother who was undergoing medical treatment for the injuries he sustained in a motor-cycle accident. Having reached Itanagar from Guwahati he happened to learn from somebody that the accused had killed the deceased. This witness was not cross examined by the defence and even there was no suggestion in the cross as regards his having any illicit relation between the deceased as seen from the evidence of P.W.9 as projected by the prosecution.
11. Shri Talo Rebi, P.W.8, being one of the investigating officers, deposed that on 14.6.2000 he was posted at the Daporijo Police Station when a complaint was received from Shri Tajin Dui to the effect that his sister had been killed by the present accused Shri Talar Sorum. Having received the complaint, the Officer-In-Charge, Daporijo Police station registered a case against the accused under Section 302 IPC and the investigation of the same was endorsed to him. Immediately after such endorsement of the case he along with the ready team of Daporijo Police Station proceeded to the place of occurrence which located near the office of the IFCD/ SBI colony of Daporijo where he found the dead body of the deceased and accordingly he drew rough sketch map of the place of occurrence and also conducted the Inquest of the dead body and the same was sent for post mortem. After post mortem was over, the dead body was handed over to the relative of the decased on the same day. On the same day the accused Talar Sorum was arrested and a dao allegedly used by him being the weapon of the offence was also seized and the same was subsequently forwarded to the FSL Guwahati for expert opinion. During the course of investigation, a Gale was also seized from the P.O. in connection of this case including a pair of chappal and a bunch of hair stained with blood allegedly belonged to the deceased.
12. We find it difficult to accept the deposition of this witness for the simple reason that according to this witness the complaint was lodged on 14.6.2000 on the very day of the incident which has been belied by the deposition of P. W.9 informant who was very much categorical in his deposition that he lodged the complaint on 16.6.2000 after completion of the post mortem on the next day i.e. on 15.6.2000 and burial of the same when incident occurred on 14.6.2000.
13. P.W.9 stated emphatically that the police was also there when he came to the place of occurrence on 14.6.2000. In view of the above factual position so narrated by P. W.9 we do not find credibility of this witness, i.e. P.W. 8 who was the first Investigating Officer. On the other hand P. W. 10 the other 1.0. who submitted charge-sheet, depicted an another story of confession so made by the appellant. In his deposition he also stated that on 14.6.2000 he received a complaint from one Sri Tagin Dui, P.W.9 to the effect that the accused killed his wife with a dao. On receipt of the complaint he registered the case against the accused, Daporijo P.S. Case No. 29/2000 U/S 302 IPC and endorsed the case to S.I. Mr. T. Rebi for investigation of the case who visited the place of occurrence and drew inquest report, sketch map and also arrested the accused person. He also deposed that during investigation it was revealed that there had been Kebangs held for twice or thrice relating to a dispute concerning illicit affairs of his wife with another Shri Koling Sorum P.W.6 whose evidence has also been discussed above where it was found that he never put to any question by the prosecution as regards any such relation with the deceased. According to this witness on 14.6.2000 the accused killed his wife and he confessed before the I.O. that he killed his wife. But significantly there was nothing on record to show any such confession as ever been made or recorded by any competent authority. On perusal of record it appears that in cross this witness stated that everything was investigated by his earlier predecessor and on his transfer only he took over the charge of the case and he admitted that in fact he did not investigate the case but only he submitted the charge-sheet. It also seen from the perusal of the FIR and appreciation of the evidence of P. W.9 that when P. W.9 stated in his cross that he named three persons, he did not name those three persons in his testimony save and except the name of the appellant and that too the complaint did not carry any date.
13.(a). Coming to the report submitted by the Forensic Laboratory which has been accepted as Exbt. 7, at this stage, it would be relevant to quote the relevant portion of the said report dated 24.7.2000 which runs as under:
DESCRIPTION OF ARTICLE Your No. My No.
1. One bamboo handled dao 1 Sero-85/2000 with stain of suspected blood
2. One mustard coloured with 2 Sero-86/2000 black bordered cloth said to be "GALE" (mekhela) with stain of suspected blood RESULT OF EXAMINATION
1. Exh. No. Sera 85/2000 gave positive test for blood only but its origin could not be done due to insufficient test material.
2. Exh. No. Sero-86/2000 gave positive test for human blood.
3. Comparison of blood could not be done due to insufficient test material in the Exh. No. Sero-85/2000.
13.(b). Having appreciated the above report, it is found that positive test for human blood found on the dao could not be done due to insufficient test materials. The blood stain found in the dao could not be proved as to whether the same was human blood or blood of the deceased. The prosecution failed to give any other sufficient materials to prove that the suspected blood found in the dao was the human blood of the deceased. That apart, the prosecution also failed to give sufficient explanation as to why the blood of the deceased was not sent for examination to the Forensic Science Laboratory. That being the position, we unhesitatingly find that the prosecution failed to support its own case through this report submitted by the Forensic Science Laboratory.
13.(c). It is really a sorry state of affairs to notice the way investigation had been conducted by the prosecution in the instant case. Bamboo handled dao with stain of suspected blood of human blood of the deceased was sent without any blood of the deceased. Even the Forensic Science Laboratory was not able to get the origin of the blood for examination due to insufficient test materials which shows the complete callousness of the investigating authority in making proper investigation of the case. Even it was recorded in the result of the examination of the Forensic Science Laboratory that "comparison of blood could not be done due to insufficient test material in the Exh. No. Sero-85/2000."
13.(d). Since admittedly the entire case has been based on circumstantial evidence as revealed from the perusal of the entire evidence, we do find that the facts and circumstances in its totality would not give rise to any acceptable circumstances to complete the chain to indict the appellant in the commission of offence.
14. In Sharad Birdhichand Sarda v. State of Mahaashtra in paragraph 151, 152 and 153, while dealing with a criminal case that based on circumstantial evidence, the Apex Court laid down as many as 5 conditions that required to be fulfilled to prove a case pertaining to circumstantial evidence. In paragraph 151, 152 and 153 it was held as under:
151. Before discussing the case relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh . This case has been uniformly followed and applied by this Court in a large number of later decisions up to date, for instance, the case of Tufail v. State of Uttar Pradesh (1996) 3 SCC 198 and Ram-Gopal v. State of Maharashtra . It may be useful to extract what Mahajan, J has laid down in Hanumant's case (at pp. 345-46 of AIR) (supra):
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to excluded every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete a not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
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 Sahebrao Bobade v. State of Maharashtra 1973 SC 2622 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 vide golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
15. In the instant case, having meticulously discussed and appreciated the material evidence on record, we find that circumstances from which the conclusion of guilt is to be drawn are not fully established from the chain of evidence. We are do not find such circumstantial evidence so cogent and complete so as to convince us. In the instant case the various links in the chain of evidence laid by the prosecution have not been satisfactorily proved and the circumstances did not point to the guilt of the accused with reasonable definiteness.
16. Learned Counsel appearing on behalf of the appellant has stated that the learned Judge while convicting and sentencing the appellant as mentioned basically relied on the statement of evidence recorded under Section 161 Cr.P.C. which is not permissible under the law. According to him, the statement made under Section 161 cannot be substantive evidence and the same can only be used to proving the contradictions.
17. To substantiate his such submission, he has relied on a decision of the Apex Court (Baldev Singh v. State of Punjab) wherein it was observed as under:
6Needless to stress that the statement recorded under Section 161 of the Code of Criminal Procedure shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to Section 161(1) and that the first information report is not a substantial piece of evidence. The High Court has misled itself into relying upon these two statements and thereby has fallen into a serious error. It is pertinent to note in this connection that P.W.7, an Advocate who is a disinterested witness has testified to the fact the both P.Ws 9 and 10 met him after the incident, but they did not tell the name of the appellant.
18. The Apex Court in Omkar Namdeo Jadhao and Ors. v. Second Additional Sessions Judge, Buldana and Anr. in paragraph 3 held as under:
3The Court should not come to the conclusion on the basis of 161 statements which are not evidence. It can be used at the trial only for contradictions or omissions when the witness was examined. Nor it could be conradicted by looking at the physical features of the witnesses even before they are examined. The Additional Sessions Judge had discharged them concluding that the Police Officers had fabricated the record. It would appear that the learned Sessions Judge had overstepped his jurisdiction in recording a finding, while looking at the physical features of the accused, that the police had fabricated the record. The High Court has also not property considered the matter while going into the question regarding discharge of the accused for other offences. Under these circumstances, we hold that in view of the finding recorded by the Sessions Judge of fabrication of the record and that the case is false one, issuance of notice under Section 340, Cr.P.C. is wholly unjustified. The said order of the Sessions Judge is accordingly quashed.
18.(a). In a landmark judgment reported in AIR 2004 SC 943 (Ram Swaroop and Ors. v. State of Rajasthan), the Supreme Court in paragraph 23 and 24 observed as follows:
23. We have also noticed that the High Court has attached undue importance to the statements made in the course of investigation and recorded under Section 161 of the Code of Criminal Procedure. It is well settled that a statement recorded under Section 161 of the Code of Criminal Procedure cannot be treated as evidence in the criminal trial but may be used for the limited purpose of impeaching the credibility of a witness. We find that in paragraph 6 of the judgment, the High Court while dealing with the evidence of P.W.7 has clearly treated the statement of P.W.7, recorded in the course of investigation, as substantive evidence in this case. The High Court observed:
He is consistent in his statement Under Section 161, Cr.P.C. that while he alongwith Kishore (P.W. 10) were sitting in front of the house of Kishore, which is just near the Shiv Temple, Ramswaroop and his sons Ram Kalyan and Hiralal armed with lathis came and gave beating to Bhanwar Lal and specifically head injury is attributed to Ramswarop. In the statement in Court, he only attributed injuries to Haralal and Ram Kalyan. Even he is consistent on the fact that while Madan Lal and his mother came and tried to save Bhanwar Lal from these persons, they were caught hold by Dakhan and Ram Kanya and Dakhan and Ram Kanya have given beating to Madan Lal and his mother.
24. In our view the High Court ought to have considered his deposition rather than his statement recorded under Section 161 of the Code of Criminal Procedure. The inconsistency between the two version is obvious from the fact that the prosecution had to declare the witness hostile. The approach of the High Court, therefore, is clearly erroneous.
19. Having regard to the above judicial pronouncements and also on scrupulous scrutiny of the circumstantial evidence so adduced by the prosecution thrugh the witnesses, we are of the firm view that the appellant is entitled to get the benefit of doubt as regards his involvement in commission of killing his wife and accordingly we have no hesitation to interfere with the impugned conviction and sentence.
20. Consequently, the impugned conviction and sentence is hereby quashed and set aside.
21. The appellant be set at liberty forthwith if he is not wanted in connection with any other criminal case.
22. In the result, this appeal succeeds and stands allowed.
Send down the LCR immediately.