Gauhati High Court
Rakesh Kr. Singh vs State Of Assam on 28 January, 2003
Equivalent citations: 2003CRILJ3206, II(2003)DMC447, (2003)2GLR529
Author: D. Biswas
Bench: D. Biswas
JUDGMENT P.G. Agarwal, J.
1. This criminal appeal is directed against the judgment and order dated 10.10.2001 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 66(J-J)/97, whereby the appellant accused Rakesh Kr. Singh was convicted under Section 302 IPC and sentenced to imprisonment for life and pay a fine of Rs. 1000, in default to further imprisonment for three months.
2. The facts of the present appeal are that the present appellant-accused Rakesh Kr. Singh is an Inspector of Custom & Central Excise. He had married Julie Singh (Barthakur) on 3rd July, 1995. On 27.9.1996 her dead body was found in burnt condition and an FIR being lodged, police took up the investigation. The dead body was sent for postmortem examination after a request was made by Mr. J.B. Ekka, Executive Magistrate. PW 7 is Dr. Narayan Bordoloi who held the autopsy and found the following injuries :
"Dead body of a healthy female. Extensive superficial burns seen over the whole body except a portion in the buttock and the back. There are as of arrhythmia in the burnt portion. Narrow grave border of reddening seen in the unburnt areas of the buttock and the back surrounding the burnt areas. The tongue is half protruded. The hairs are singed in frontal region while flesh in the back are unaffected. Rigor mortis absent.
The burn is ante mortem and caused by flame. The viscera are preserved. In my opinion, the death is due to shock due to burns."
3. In this case, the death of Julie Singh, wife of the accused appellant due to burn injuries have not been disputed and stand well established.
4. The trial court framed charges under Sections 302/201 IPC. The prosecution examined, as many as, 9 witnesses but none of them, except Sikha Barthakur, PW 6, whose evidence we will revert later on, are eye witnesses. PWs 1, 2 and 3 were not present when the incident took place. Whereas PW 4 arrived at the place of occurrence later on and saw the accused pouring water on the body of the deceased. PW 5 is a formal witness, whereas PWs. 7 and 8 are two Doctors and PW 9 is the investigating police officer.
5. The learned Sessions Judge has entered the conviction on the basis of the evidence of PW 6, Sikha Barthakur, the younger sister of deceased Julie Singh. The evidence of Sikha Barthakur, PW 6, is that her parents left for Guwahati leaving her with her sister, the deceased, who was staying with her husband, the accused Rakesh Singh. On the fateful evening, a quarrel took place between the husband and the wife and it spilled over to her. It may be mentioned that the deceased and the accused used to reside adjacent to the house of PW 6 and her parents. After the quarrel, the accused came to their place and taking advantage of the Situation that Julie Singh was in the bathroom, the accused tried to commit rape on her. In the meantime, Julie Singh came out of the bathroom and abused her husband. Thereafter the accused appellant assaulted the deceased and dragged her outside and after pouring Kerosene Oil on her body, set her on fire. The accused threatened her with similar fate in case she discloses anything to anyone.
6. In this case we find that the accused appellant had filed a written argument before the learned Sessions Judge raising several contentions including the validity of the charge, FIR, post-mortem report etc. etc. On perusal of the materials on record and in view of the settled proposition of law that FIR is not a substantive piece of evidence, we hold that there is not much force in the above submission. In this case, there is no dispute at the Bar that Sikha Barthakur, PW 6, was arrested on the night of occurrence itself along with the accused Rakesh Kr. Singh. Thereafter, she was in jail custody as an accused. She was subsequently released under Section 306 Cr.PC and made an approver and her statement was recorded on 27.11.1996. The accused appellant has also raised certain doubt regarding the manner in which the pardon was granted under Section 306 Cr.PC. Considering the evidentiary value of the statement of PW 6, we are of the view that the status of the witnesses be determined first, i.e., whether PW 6, Smt. Sikha Barthakur, is (a) an independent prosecution witness; (b) an accomplish/approver; (c) a co-accused.
7. As stated above, PW 6, Sikha Barthakur, was arrested by police on 27.9.1996 and she was in jail custody. The Investigating Police Officer have deposed that after the arrest, Rakesh Singh and PW 6, Sikha Barthakur, were forwarded to Magistrate who remanded them to jail custody and subsequently on 27.11.1996 the Magistrate granted pardon to Smt. Sikha Barthakur. The charge-sheet was also submitted against PW 6, Sikha Barthakur. Thus, it is crystal clear that the prosecution, at no point of time, has treated or projected PW 6 as an independent prosecution witness and all along she was projected as an approver after pardon was granted to her.
8. The next question is whether PW 6 is an accomplice or approver. Section 306 Cr.PC reads as follows :
"306. Tender of pardon to accomplice. - (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof."
9. In Black's Law Dictionary (5th Edition) the word 'accomplice' has been defined as :
"One who knowingly, voluntarily and with common intent unites with the principal offender in the commission of a crime/One who is in some way concerned or associated in commission of crime/partaker of guilt/ one who aids or assists, or is an accessory/Equally concerned in the commission of crime/An 'accomplice' is one who is guilty of complicity in crime charged, either by being present and aiding or abetting in it, or having advised and encouraged it though absent from place when it was committed, though mere presence acquiescence, or silence in the absence of a duty to act, is not enough, no matter how responsible it may be, to constitute one an accomplice. One is liable as an accomplice to the crime of another if he gave assistance or encouragement or failed to perform a legal duty to prevent it with the intent thereby to promote or facilitate commission of the crime."
10. A bare perusal of the statement of Sikha Barthakur will show that this witness has nowhere stated about her involvement in the above crime, directly or even indirectly. She seems to be another victim of crime or merely a spectator. Her entire statement is exculpatory and she has not incriminated herself in any manner. Learned Public Prosecutor, however, submitted that at the relevant time and at the relevant place there were only three persons, namely the accused appellant, PW 6 and the deceased. The deceased is no more in this world to depose as to what had happened and the accused has a right under the law to remain mum. Hence, PW 6 was the only eye witness left after witnessing the incident and it was her duty to give information. He had referred to the provision of Section 39 of the Cr.PC. In this case, we find that the police immediately after reaching the place of occurrence found two persons, namely, the accused appellant and PW 6 and arrested both of them. Hence the Constitutional safeguards to remain silent were available to both the PW 6 and the accused appellant. Moreover, it cannot be said that as PW 6 had failed to discharge her responsibility under Section 39 Cr.PC as she was an accomplice to the crime of murder. In the case of A.S.N. Reddy v. State of Hyderabad, AIR 1956 SC 379, the Apex Court had held that a witness merely accompanying the accused does not satisfy the requirement of an accomplice. In the case of State v. Boberts 13P 896 Col. 15 OR 187 it was stated that the term 'accomplice' in the case of who are particeps criminis, whether consider in a direct legal sense of the term as principal or accessories and particular includes any associate in the crime and or assisting, co-operating or aiding in its commission. In another case of State v. Western 219 P 180 Col. 109 OR 19 it was held "the mere presence of a terrified onlooker or his failure to report a crime, does not constitute him an accomplice".
11. In the present case, we find that PW 6 was a 18 years old young girl staying with her elder sister who was married to the accused appellant. There is no other evidence on record except, her own statement, which shows that not to speak of participation in the crime, she had no inkling even that the incident may end in the death of her dear sister. We, therefore, hold that she was not an accomplice and there is no question other becoming an approver or giving her pardon. Pardon is granted or sought when somebody claims that he has committed a mistake. Learned counsel for the appellant has submitted that the law is well settled that the evidence of an accomplice or approver cannot be accepted unless it corroborated with the material facts and in the instant case there is no corroboration whatsoever. In view of what has been stated above, we, therefore, hold that the PW 6 cannot be termed as an accomplice or approver in view of exculpatory evidence/ materials on record.
12. In this case as stated above, police has submitted charge-sheet against PW 6 also. Thus, she is a co-accused. Section 30 of the Evidence Act reads as follows :
"Consideration of proved confession affecting person making it and other jointly under trial for same offence. - When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession."
13. Although PW 6 was charge-sheeted along with the appellant, she was not tried in view of the pardon granted as per Section 306 Cr.PC. The law is, however, well settled that the evidence of co-accused cannot form a basis for conviction and it can be used only for the purpose of lending support to the prosecution story in cases where the balance is otherwise evenly poised. In the instant case there is absolutely no other material except the statement of PW 6.
14. There is another aspect of the matter also. On perusal of the record we find that although PW 6 was arrested on 26.9.1996 and when she was sent to the Magistrate for recording her confession under Section 164 Cr.PC, she declined to confess. Thereafter, she filed an application seeking pardon and pardon was granted after recording her statement on 27.11.1996. Ext. 5 is the said statement and this seems to be the only statement of PW 6, besides the evidence given by her before the Court. Learned Public Prosecutor could not show any statement of PW 6 recorded by I.O. prior to this date although police was required to record her statement soon after her arrest. Thus, we find that after two months of the incident the witness PW 6 disclosed for the first time and made a statement implicating the accused appellant in the above incident. In ASN Reddy (supra) the Apex Court observed that the evidence of a person witnessing the occurrence but not divulging the same to anybody for 2/3 days should be scanned with much caution. Considering the facts and circumstances of the case and in absence of any corroboration whatsoever we hold that the statement of PW 6 does not inspire much confidence and cannot be relied on for basing conviction. As we feel that she has not stated the whole truth after two months of the incident and there is something against, her evidence no doubt cast a strong suspicion regarding the involvement of the appellant. But in a criminal trial the conviction cannot be based on the basis of suspicion only.
15. In view of the above, the appeal is allowed, the conviction and sentence of the accused appellant is set aside and the appellant is acquitted of the charges and he be set at liberty forthwith.