Gauhati High Court
Chitrasen Goala And Anr. vs State Of Assam on 28 January, 1998
Equivalent citations: 1998CRILJ2118
Author: D. Biswas
Bench: D. Biswas
JUDGMENT N.G. Das, J.
1. This appeal is directed against the judgment and order of conviction dated 30-8-1995 passed by the learned Additional Sessions Judge, Sonitpur in Sessions Case No. 35(S)/94 whereby learned Addl. Sessions Judge convicted the appellants under Section 302 read with Section 34 of IPC 'and sentenced them thereunder to undergo RI for life and also to pay a fine of Rs. 5,000/- each in default of which they are to suffer RI for another one year.
2. We have heard Mr. S. C. Biswas, the learned counsel appearing on behalf of the appellants and Mr. D. Goswami, the learned Public Prosecutor.
3. The prosecution case which has given rise to this appeal is that the deceased Raju Nayak had a love affair with the sister of the appellants and on the date of occurrence viz. 15-11-1993 the deceased took the sister, namely, Smt Bulu Goala (P.W. 4) to his own house. The appellants and some other relations of Bulu came to know that Bulu was detained by the deceased in his house and on receipt of the information the appellants with their father and some others went to the house of deceased around 12 O' clock at night and by force they dragged both the deceased and Bulu to their house. It was also alleged that while dragging away the appellants and others who. accompanied them assaulted the deceased. On the following day the dead body of the deceased having been found in the courtyard of. the house of the appellants one Nirakar, the younger brother of the informant Niranjan Nayak passed the information to P.W. 1 Niranjan Nayak, the informant that the dead body of Raju was lying on the courtyard of the house of the appellants.
4. On receipt of this information Niranjan Nayak informed the Manager of the Tea Estate about this incident and thereafter went to the house of the appellants where he found the dead body of Raju Nayak lying on the courtyard of the house. He thereafter lodged a written ejahar with O/C, Sootea Police Station to the above effect.
5. On receipt of this ejahar the O/C Sootea Police Station registered a case under Section 302/34 of IPC being Sonitpur P. S. Case No. 97/ 93 and thereafter endorsed the case to Shri P. Boro, Sub-Inspector of Gohpur P. S. for investigation of the case. Accordingly, Shri Boro took up the investigation of the case. In course of his investigation Shri Boro visited the place of occurrence, prepared the inquest report of the deceased in presence of the witnesses, sent the dead body to the hospital for P. M. examination, recorded the statements of witnesses, obtained p.m. examination report etc. and thus after completion of the investigation charge-sheeted the appellants and one Monoj Goala for their prosecution under Sections 364/34, IPC and Sections 302/34 of IPC. The accused persons were arrested and they were also forwarded to the Court.
6. The case being exclusively triable by the Court of Session it was committed to the court of learned Sessions Judge who thereafter transferred the case to the Court of learned Addl. Sessions Judge for disposal of the case. The accused persons were also produced before the learned Addl. Sessions Judge, who after hearing the learned counsel for the parties framed two distinct charges, namely, one under Sections 364/34 of IPC and another under Sections 302/34 of IPC. Both the charges were read over and explained to the accused persons who pleaded not guilty and claimed to be tried.
7. The prosecution in support of their case examined 8 witnesses in all and also exhibited some documentary evidence namely, inquest report, seizure list, p.m. examination report etc. The accused persons led no evidence in support of their defence. However, the defence as would appear from the cross-examination as well as the statements they gave at the time of their examination under Section 313, Cr. P. C. is that they have been falsely implicated in the case and they quite categorically pleaded their innocence.
8. The learned Addl. Sessions Judge, however, after appreciation of the evidence on record arrived at the conclusion that the two appellants in furtherance of their common intention killed Raju Nayak and with this finding he convicted both the appellants for commission of the offence under Section 302 read with Section 34 of IPC and sentenced them thereunder as already indicated. The accused Monoj Goala was, however, acquitted of the charges.
9. Now in course of his argument Mr. Biswas, the learned counsel appearing on behalf of the appellants has not disputed about the death of Raju Nayak on the date and time as mentioned in. the charge. In view of the evidence on record particularly the evidence of the Doctor and the other witnesses who soon after receipt of the information that Raju Nayak was lying dead in the courtyard of the house of the appellants rushed to that place, we are of the view that he has rightly conceded.
10. P. W. 7 Dr. S. P. Bordoloy who conducted the autopsy on the dead body of deceased Raju Nayak deposed that on 16-11 -93 the dead body of deceased Raju Nayak was sent to the Civil Hospital in connection with the aforesaid case for p.m. examination. Accordingly he conducted the autopsy on the dead body of Raju Nayak and in course of the examination of the dead body he found the following injuries:-
1. Laceration over the scalp in the occipital region. The occipital bone of the skull is having communited (comminuted) fractured with profuse blood clot and draining of brain matters in the area of the skull.
2. Clotted blood inside the nose and mouth.
3. Penetrating injury (1/4" x 1/4" x 1" above the left ankle in the posterior aspect and penetrating in the muscles and vessels of that area. Profuse blood clot seen.
4. Bruising of the skin over the right eyebrow area.
5. Laceration over the left elbow.
6. Multiple bruising all over the body.
11. The Doctor has riot virtually been cross-examined. Apart from that on going through the evidence of P. Ws. 1,2,3,4,5 and 6 we find that those witnesses .also visited the house of the appellants on receipt of the information that the dead body of deceased Raju Nayak was lying on the courtyard of the house. According to them they also found the dead body of deceased Raju Nayak lying on the courtyard of the house. It is, therefore, abundantly clear that Raju Nayak died a homicidal death. It may however, be mentioned here that the Doctor did not say whether the injuries as described above were sufficient in the ordinary course of nature to cause the death of Raju Nayak,
12. However, the crucial question which calls for consideration in this case is whether the evidence on record is sufficient to arrive at the conclusion that the appellants committed the crime in furtherance of their common intention. Mr. Biswas, the learned counsel appearing on behalf of the appellants has pointed out a number of infirmities and has submitted that in view, of the infirmities the conviction and sentences passed by the learned Addl. Sessions Judge is not sustainable. One of the infirmities which Mr. Biswas at the very outset pointed out is that there is no FIR in this case in the eye of law. To substantiate his contention Mr. Biswas has drawn our, attention to the evidence of the informant who has been examined as P.W. I in this case.
13. Admittedly, the ejahar on the basis of which the investigation of the case was started was lodged by Niranjan Nayak, P, W. 1, This ejahar has also been marked as Ext. 3. This Ext. 3 document shows that Niranjan Nayak could not put his signature and hence his left thumb impression was taken. Examined as P.W. 1 Niranjan Nayak the informant stated in his examination-in-chief that on receipt of the information that the dead body of Raju Nayak was lying in the courtyard of the house of the appellants he went there and at that time police also examined the dead body. It is stated by him that some person wrote in his presence and then he put his thumb impression on the ejahar. This witness also deposed that he did not. know who wrote the ejahar. From his statement it appears that he lodged the ejahar in the residence of the appellants after arrival of the police personnel. But the ejahar which has been marked as Ext. 3 shows that this written ejahar was received in the Thana by Sub-Inspector Jahidul Islam, 0/C, Sootia P. S. The contention of Mr. Biswas is that this is not the real FIR of this case. According to him the evidence of P.W. 1 will clearly show that on getting the information that dead body of Raju was lying on the courtyard of the house of the appellants he informed the Manager of the Tea Estate and the Manager in his turn passed the information to the police over phone. But the Manager has not been examined. Not only this, the person who actually wrote this ejahar has not also been examined. Mr. Biswas contends that for non-examination of the person who wrote this ejahar it cannot be taken into consideration. In support of his contention Mr. Biswas, Id. counsel for the appellants 'has placed reliance upon the decision of the Calcutta High; Court rendered in the case of Debendra Chandra Sarkar v. Emperor reported in AIR 1934 Cal 458 : 1934 (35) Cri LJ 904. In that case the learned Judges of Calcutta High Court made an observation in respect of non-examination of the person who wrote the ejahar, The observation reads as under:-
If the man who wrote out the Ejahar produced in Thana has not been examined, it is not possible to ascertain what exactly was the version of the informant at the time when the ejahar was put first down in writing or whether the writing represented a genuine version given by the informant himself or a version coloured by interference from other sources.
14. In the present case, it is an admitted fact that there is no eye-witnesses in respect of the factual part of the occurrence, The evidence of this P.W. 1 if taken into consideration then it would be quite apparent from his statement made in examination-in-chief that he at first passed the information to the Manager who in his turn again informed the police of Chootia (Sootia) P.S. over phone. But the evidence of the Investigating Officer does not show that he received any such information over phone. This matter could have been clarified in case the Investigating Officer would have produced the relevant G. D, before us. But the G, D. has not been produced. Apart from this, the learned Addl. Sessions Judge also did not follow the prescribed procedure before marking this ejahar as Ext. There is practically no evidence to show that as to how this ejahar was exhibited. We find from the evidence of P. W. 9 i.e. the Investigating Officer that this ejahar was suddenly marked as Ext. 3. There is no statement for accepting this ejahar. We are also of the view that the competent person who could prove this ejahar is the scribe of the document. But that scribe has not been examined. The Investigating Officer did not assign any reason as to why he did not think it necessary to examine this scribe of this document marked as Ext. 3, It is also not understandable to us as to why in face of the evidence of P.W. 1 that he at first passed the information about the incident to the Manager of the Tea Estate, the Investigating Officer did not examine the Manager of the Tea Estate. It is true if the Manager would have been examined then it would appear what information this P.W. 1 actually passed to him at that time.
15. It has been quite strenuously argued by Mr. Biswas, the learned counsel for the appellants that the evidence of P.W. 4 Bulu Goala will show that the deceased was assaulted by her father. This witness was however, declared hostile and the learned Addl. Sessions Judge also allowed the learned Addl. P.P. to examine this witness in the nature of cross-examination. We have quite carefully perused the evidence of this P.W. 4. But we cannot help pointing it out here that the learned Addl. Sessions Judge did not follow the prescribed procedure in recording the evidence of this witness. It appears from the cross-examination made by the learned Addl. P.P. that he put some suggestions to this witness on the basis of the statement that was recorded by the Investigating Officer under Section 161, Cr. P. C. But the manner in which learned Additional Sessions Judge recorded the evidence is not the proper way. The correct procedure to be followed would assume to be first asked the witness whether he/she made the previous statement. If the witness returns the answers in the affirmative, the previous statement in writing need not be proved and the cross-examiner may, if he so chooses left it to the party who called the witness to have the discrepancy, if any, explained in the course of re-examination. If on the other hand, the witness denies having made the previous statement attributed to him or states that he does' not remember having made any such statement and it is desired to contradict him by the record of the previous statement the cross-examiner must read out to the witness the relevant portion or portions of the record which are alleged to be contradictory to his statement in the Court and give him an opportunity to reconcile the same if he could. But in the instant case, it is found by us that learned Addl. Sessions Judge did not follow this at all. We are, therefore, not prepared to place" any reliance upon the evidence of this witness.
16. As to our query about the explanation of the accused regarding the presence of the dead body in the courtyard of the house of the appellants, it is submitted by the learned counsel for the appellants that the evidence on record will show that not only the appellants but their father was also charged with the commission of the offence. It is stated that the evidence of P.W. 4 will show that it was her father who assaulted the deceased. Therefore, it is argued by the learned counsel for the appellants that the appellants cannot be held responsible for beating the deceased.
17. P.W. Anupam Nayak, who is a relation to the appellants stated that the appellants and some other persons, namely, Sarbeswar and Deb and others assaulted his wife Anita Nayak, Raju and the girl and they also took away Raju and the girl from their house. But during cross-examination it was suggested to this witness that he did not make such statement to the Investigating Officer. The Investigating Officer also stated that this P.W. 2 did not make such statement to him. We are, therefore, of opinion that this statement of P.W. 2 cannot be taken as a legal evidence and no reliance can be placed on this part of his statement.
18. P.W. 5 Ramesh Sabaris Chowkidar of the village. He deposed that on the following day of the occurrence he got information from one Chutu Munda that there was some noise in the house of Monoj Goala. On receipt of this information he went to the house of Monoj Goala and according to him when he went there he found the dead body of Raju Nayak lying on the courtyard. He further stated that on seeing the dead body of Raju lying on the courtyard he asked who had killed him. According to him Monoj told him that he killed him. But after making this statement he subsequently stated that the deceased did not die till then. According to him at 6 a.m. he found the deceased sitting on a jute bag on the floor leaning against a wall. His evidence as we find suffers from a number of infirmities and as such we are of the opinion that no reliance can be placed upon his evidence.
19. P.W. 6 Chutu Munda simply stated that there was some hallas in the house of the appellants and he asked the Chowkidar to go to that house. He actually contributes nothing in support of the prosecution case.
20. So, on analysis of the evidence as discussed above, we are of the view that the prosecution could not prove it affirmatively who actually assaulted the deceased. It is, however, clear from the evidence of the prosecution witnesses that the appellants also took part in taking away Raju and the girl namely, Bulu from the house of P.W. 2. But learned Addl. Sessions Judge neither discussed the evidence in respect of the charge under Sections 364/34, IPC nor made any finding thereon. The State also did not file any appeal. That apart, abduction by itself is no offence. It is an offence when it is coupled with one of the intentions contemplated by the Penal Code. From the evidence on record we find that not only the appellants but some other persons also took part in taking away Raju and the girl from the house of P.W. 2. It may be re-called here that the background of this case is that Raju brought the girl in his house without consent of the father of the girl and that is why the appellants being brothers of the girl came to the house for rescue of the girl who is only 11 years old.
21. Apart from all these infirmities pointed out above we have also found that the learned Addl. Sessions Judge after holding the appellants guilty for the offence did not give enough scope to them for making their submissions about the sentence to be awarded.
22. For all the infirmities we are of the opinion that the accused persons are entitled to get the acquittal and accordingly we set aside the judgment and the order of conviction and sentence passed by the learned Additional Sessions Judge. The appeal is, therefore, allowed. The appellants are in Jail and hence, they shall be released forthwith.