Gauhati High Court
Sri Kartik Roy vs The State Of Assam on 5 September, 2013
Bench: T. Vaiphei, P.K. Saikia
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
CRL. APPL. NO. 68(J) of 2010
Sri Kartik Roy
...... P etitioner
... ... .... VS ... ... ...
The State of Assam
... ... ..Respondents
BEFORE THE HON'BLE MR. JUSTICE T. VAIPHEI THE HON'BLE MR. JUSTICE P.K. SAIKIA Advocate for the Petitioners - Mr. B Nath, Amicus Curiae. Advocate for the Respondents - Mr. D Das, Addl. Public Prosecutor.
Date of Hearing - 05.09.2013.
Date of Judgment - 05.09.2013.
JUDGM ENT AND OR DER (OR AL )
01. Both Mr. B Nath, learned Amicus Curiae and Mr. D Das, learned Addl. Public Prosecutor appearing for the State of Assam are heart at length.
02. This criminal appeal has been preferred against the judgment dated 28.04.2010, passed by the learned Sessions Judge, Kokrajhar, Cril. Appeal No. 68(J)/10 Page 1 of 11 in Sessions Case No.56/2007, convicting the appellant under section 447/302 IPC and sentencing him to life imprisonment with a fine of Rs. 5000/- and, in default thereof, to suffer rigorous imprisonment for another 6 months and to undergo 3 months of RI for commission of the offence punishable under section 447 IPC. Both the sentences are to run concurrently. The case of the prosecution, briefly stated, is that on 23.11.2006 at about 11.30 a.m., the hen of the appellant was eating paddy in the courtyard of Krishna Roy, the wife of the informant. When the deceased had driven out the hen from her courtyard, the appellant was alleged to have trespassed on the courtyard of the informant and hacked the deceased to death by means of dao. In this assault, the appellant was alleged to have been aided by his wife, Smti. Balki Roy, who was, whoever, latter on discharged by the police. On the basis of the FIR lodged by the informant, the Officer-in-Charge of Kokrajhar Police Station on 23.11.2006 registered a regular case being Kokrajhar P.S. Case No.287/2006, under section 447/302 IPC and started investigation of the case. The appellant was alleged to have absconded till charge sheet was submitted by the police and, subsequently, surrendered before the learned Chief Judicial Magistrate, Kokrajhar. After investigating the case, the police submitted the charge sheet against the appellant under sections 447/302 IPC. On commitment, the learned Sessions Judge framed the charges against the appellant under Sections 447/302 IPC. The appellant pleaded not guilty to the charge and claimed to be tried. It may be noted at this stage that Cril. Appeal No. 68(J)/10 Page 2 of 11 the wife of the appellant had been discharged by the learned Sessions Judge at the time of consideration of the charges.
03. In the course of trial, the prosecution examined 8 witnesses to bring home the charges against the appellant while no evidence was laid by the appellant. After examining the appellant under section 313 Cr.PC and after hearing both the parties, the trial court passed the impugned judgment of conviction and order of sentence. Assailing the impugned judgment, the submission of the learned Amicus Curiae is that the dying declaration allegedly made by the deceased to the PW Nos. 3, 4 & 5, upon which heavy reliance was placed by the trial court in convicting the appellant is highly suspect, inasmuch as the nature of the injuries sustained by the deceased on the vital parts of her body must have physically incapacitated her from making such a declaration even if she was still alive by the time they met her: the trial court did not properly apply its mind on this vital aspect of the evidence. It is also contended by the learned Amicus Curiae that the dao, which was allegedly used by the appellant for causing the death of the deceased, was never seized by the police, thereby creating serious doubt on the case of the prosecution. It is also the contention of the learned Amicus Curiae that the fact that PW Nos. 3, 4 & 5 saw the appellant coming out from the house with dao in his hand does not necessarily mean that he was the culprit, inasmuch, as they could not even say that there was blood stain in the dao. In any view of the matter, according to Cril. Appeal No. 68(J)/10 Page 3 of 11 learned Amicus Curie, as the case of the prosecution suffers from many discrepancies, which could not be properly accounted for by the prosecution, the impugned judgment of conviction cannot be sustained in law.
04. On the other hand, Mr. B. Das, the learned Addl. Public Prosecutor appearing for the State, supports the impugned judgment of conviction and submits that the evidence of PW 3, 4 & 5 are more than sufficient to uphold the conviction, which does not call for the interference of this Court. He also submits that the following circumstantial evidence, such as, the screaming of the deceased heard by PW No.3, 4 & 5 just before the death of the deceased, the appellant being seen by PW Nos. 3, 4 & 5 carrying the dao in his hand when they went to the scene of occurrence just after hearing of the scream of the deceased, the abscondence of the appellant immediately after the incident and the non-explanation of his abscondence just after the incident by the appellant, have completely ruled out the possibility of the appellant being innocent of the charges levelled against him. It is thus the contention of the learned Addl. Public Prosecutor that these circumstances cumulatively establish the guilt of the appellant beyond reasonable doubt. He, therefore, strenuously urges this Court to dismiss the appeal, which is totally devoid of merit.
05. We have gone through the evidence available on record and the impugned judgment of the trial court and have no reason to Cril. Appeal No. 68(J)/10 Page 4 of 11 disagree with the findings recorded by the trial court in convicting the appellant. In the first place, the learned Sessions Judge in para 24 of the judgment have given the finding regarding the injuries sustained by the deceased on the basis of the evidence of PW 1, who was conducting the post mortem examination on the deceased and came to the conclusion that those injuries found by him on the deceased corroborated the injuries sustained by the deceased as described by PW Nos. 3, 4 & 5. As for the non-recovery of the dao, the learned Sessions Judge in his finding, which is at paragraph 25 recorded that after commission of the offence, the appellant fled away from the place of occurrence with the dao and, as such, the IO of the case could not seize the same. The finding of the trial court is that on 30.03.2007, the appellant surrendered before the trial court, which remanded him to judicial custody, whereas, the date of occurrence took place on 23.11.2006 and that under such circumstances, it was not possible to recover the dao which was used by the appellant to commit murder on the deceased. He, therefore, accepted the explanation of the prosecution regarding their failure to recover the weapon of offence. In our view, this finding of the trial court does not suffer from any infirmity. Moreover, non-recovery of weapon of offence alone cannot be a ground to disbelieve the case of the prosecution, when there are other solid materials based on the evidence of PWs 3, 4 and 5 to convincingly substantiate the charge against the appellant.─See Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 543 . Cril. Appeal No. 68(J)/10 Page 5 of 11
06. The following findings with respect to the established circumstantial evidence may be noticed : -
26. There is no direct eye witness to the occurrence when accused Kartik Roy caused Dao cut injuries on the vital parts of the body of Krishna Roy in her courtyard but there is strong circumstantial evidence against accused Kartik Roy. I refer below the citation Sharad Birdhichand Sarda Vs. State of M aharashtra, AI R 1984 SC 1622 : -
i) "The circumstances from which the conclusion of guilt is to be drawn should be fully established;
ii) 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;
iii) The circumstances should be of a conclusive nature and tendency;
iv) They should exclude every possible hypothesis except the one to be proved; and
v) 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".Cril. Appeal No. 68(J)/10 Page 6 of 11
27. Keeping in mind the above Golden principles on circumstantial evidence as laid down by the Hon'ble Supreme Court and considering the evidence on record, the following strong circumstances are found present in this case, which are summed up as follows: -
a) At the time of inflicting Dao cut injuries on the vital parts of the body of Krishna Roy by accused Kartik Roy, Krishna Roy was shouting helplessly that she was cut (hacked?) by accused Kartik Roy.
b) Hearing hue and cry of Krishna Roy that she was cut by accused Kartik Roy, PW 3 Smti.
Kanteswari Roy and her husband whose house are adjacent to the house of Krishna Roy came immediately to the courtyard of Krishna Roy and found her with serious injuries. While PW 3 and her husband were coming to the house of Krishna Roy immediately after hearing hue and cry of Krishna Roy, they saw accused Kartik Roy was running from the house of Krishna Roy with a Dao in his hand. Injured Krishna Roy reported them that she was cut by accused Kartik Roy.
c) PW 4 and PW 5 who were harvesting paddy near to the house of Krishna Roy also heard hue and cry of Krishna Roy that she was cut.
Hearing this PW 4 and PW 5 came running to the house of Krishna Roy and they saw accused Kartik Roy was coming from the house of Krishna Roy with a Dao in his hand.
Reaching to the courtyard, they saw Krishna Cril. Appeal No. 68(J)/10 Page 7 of 11 Roy with serious injuries on her person.
Krishna Roy reported them that she was caused Dao cut injuries by accused Kartik Roy.
They served water to Krishna Roy. They saw there PW 3 Kanteswari Roy and her husband near to injured Krishna Roy. Thereafter, Krishna Roy succumbed to her injuries;
d) PW 1, Dr. Nikunja Das in the post mortem examination of deceased Krishna Roy found multiple injuries on the vital parts of the body of Krishna Roy corroborating the evidence of PWs 3, 4 and 5 regarding injuries. The injuries were caused by sharp cutting weapon as found from the evidence of PW 1. Accused was running with a Dao in his hand from the house of Krishna Roy just after the occurrence which was noticed by PWs 3, 4 & 5 that she was cut by accused Kartik Roy. It is thus clear from the circumstances and the deposition of the witnesses that accused Kartik Roy caused Dao cut injuries on the person of Krishna Roy and the injuries were found sharp cut injuries;
e) As per the evidence on record, accused Kartik Roy was absconding after committing of murder of Krishna Roy. Police could not arrest him. Subsequently, accused Kartik Roy surrendered before the Court;
f) There was oral dying declaration of Krishna Roy before PWs 3, 4 & 5 that she was cut by accused Kartik Roy.
Cril. Appeal No. 68(J)/10 Page 8 of 11
07. In our judgment, the trial court has correctly appreciated the legal position with respect to the elements on the basis of which circumstantial evidence can form the basis of conviction. In the instant case, the proved circumstances of the prosecution case which could not be falsified or demolished by the defence are that PW Nos. 3 heard the deceased screaming at the time of the incident uttering the words that she was hacked by the appellant; that PW 4 and 5 also heard the deceased screaming with the words that she was being hacked and that the three of them saw the appellant fleeing the house of the deceased with dao in his hand; the appellant absconded just after the incident, for which no explanation is forthcoming from him in his examination U/s 313, CrPC; the dying declaration made by the deceased to PWs 3, 4 and 5 that she was hacked by the appellant. At this stage, it may be noted that the fact that the appellant had absconded for a considerable period of time, is inculpatory in nature and relevant under Illustration (i) of Section 8 of the Evidence Act, and when the same was put to him in his examination under section 313 CrPC, no explanation was given by him as to why he absconded after the incident: such abscondence is a circumstance pointing to the guilty intent of the appellant. The law is well settled that the non-explanation of, or failure to explain inculpating circumstance appearing against the accused would form an additional link in the chain of circumstances and strengthen the case of the prosecution. In our opinion, the aforesaid circumstances, taken cumulatively, do form a chain so complete that there is no Cril. Appeal No. 68(J)/10 Page 9 of 11 escape from the conclusion that within all human probability the crime was committed by the appellant and none else.
08. A desperate attempt was, however, made by the learned Amicus Curiae to show that the dying declaration of the deceased is highly doubtful, inasmuch, as the deceased was not physically in a position to make such a declaration due to the grievous nature of the multiple injuries sustained by her in the vital parts of her person. In our opinion, the cross-examinations of PWs 3, 4 and 5 do not bring out anything to discredit the testimony of the testimonies of PW Nos. 3, 4 & 5 in this behalf. Moreover, in the cross-examination of PW 4, it was revealed that PW 4 was serving water to the deceased just before her death. In our opinion, this revealing evidence of PW 4, that too, on her cross-examination by the defence, has established, more than anything, that the deceased was quite conscious and capable of making dying declaration before her death. After weighing the evidence, we are of the view that the above circumstances are consistent with the hypothesis of the guilt of the appellant and there can be no other explanation except that he is guilty of the charge. In other words, the circumstances so proved are so complete and incapable of explanation of any other hypothesis than that of the guilt of the appellant and such evidence are not only consistent with his guilt but they are also inconsistent with his innocence. In this view of the matter, we do not find any Cril. Appeal No. 68(J)/10 Page 10 of 11 reason for upsetting the findings and conclusions of the trial court upon which it convicted the appellant under section 302/447 IPC.
09. For the reasons stated in the foregoing, there is no merit in this appeal, which is hereby dismissed. The appellant shall now serve out the remaining period of his sentence. Transmit the LCRs. Mr. B Nath, the learned Amicus Curiae shall be paid as sum of Rs.5000/- by the Assam Legal Services Authority for assisting this Court.
Judge BI PLAB Cril. Appeal No. 68(J)/10 Page 11 of 11