Gauhati High Court
Sri Pabitra Das vs State Of Assam And Anr on 17 February, 2020
Author: S. Hukato Swu
Bench: S. Hukato Swu
Page No.# 1/11
GAHC010121122018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 203/2018
1:SRI PABITRA DAS
S/O SRI BHUBAN DAS, R/O MORICHA GAON UNDER CHABUA POLICE
STATION IN THE DISTRICT OF DIBRUGARH, ASSAM.
VERSUS
1:STATE OF ASSAM AND ANR
REPRESENTED BY PP, ASSAM.
2:SRI HITEN DAS
S/O SRI KULESWAR DAS
R/O MORICHA GAON UNDER CHABUA P.S. IN THE DISTRICT OF
DIBRUGARH ASSAM
Advocate for the Petitioner : MR D TALUKDAR
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
HONOURABLE MR. JUSTICE S. HUKATO SWU
Date : 17-02-2020
JUDGMENT & ORDER (ORAL)
M.A. Ali, J Heard Mr. D. Talukdar, learned counsel for the appellant and Ms. S. Jahan, learned Addl. P.P. for the State respondent as well as Mr. A.K. Gupta, learned counsel for the informant Page No.# 2/11 respondent No. 2.
2. This appeal is directed against the judgment and order dated 24.04.2018 passed by the learned Sessions Judge, Dibrugarh, in Sessions Case No. 117/2016, whereby, the learned Sessions Judge convicted the appellant under Section 302 IPC and sentenced him to rigorous imprisonment for life and fine of Rs. 1,000/-, with default stipulation.
3. The prosecution case, as reflected in the FIR was that on 28.06.2016, at about 6.30 PM, when Kanai Das (deceased) was coming home from market by riding his motorcycle, the co-villager Pabitra Das inflicted multiple cut injuries to him and had left the place. Immediately, he was shifted to hospital by the members of the family. However, the doctor declared him dead. The brother of the victim Sri Hiten Das (PW-1) lodged the FIR (Ext.1), on the basis of which, Chabua P.S. Case No. 97/2016 was registered under Section 302 IPC. During investigation, police recorded the statement of the witnesses, prepared inquest report and sent the body for postmortem examination. Dr. Subhajyoti Deka (PW-9) conducted the postmortem examination on the body of the victim.
4. According to the autopsy doctor, the following injuries were found on the body of the deceased.
"(I) One incised wound of 10cm X 1cm bone deep, nick outer table obliquely over frontal 1cm above left ear and 7 cm above right eye brow. (II) One incised wound of 12 cm X 6 cm obliquely present over the right arm, lateral aspect 14 cm below the tips shoulder beveling with flap of skin and muscle, humors bone is cut.
(III) One incised wound of 14 cm X 4 cm, obliquely present 1 cm below injury No. II, muscle deep, clean cut skin, muscle vessels.
(IV) One incised wound of 10 cm X 6.5 cm over right arm, clean cut ulna radius intact at 11 cm below elbow obliquely muscle vessels cut.
(V) One incised wound over left knee and lower one third of thigh 21 cm X 6 cm bone nicked, muscles vessels clean cut.
(VI) One incised wound over the left arm beveling of 8 cm X 1 cm, 19 cm above elbow. (VII) One incised wound 23 cm below injury No. VI of size 13 cm X 3 cm over left forearm with radius ulna clean cut attach to a skin tag, vessels nerve muscle clean cut."
Page No.# 3/11 In the opinion of the doctor, death was due to hemorrhage and shock as a result of the injuries sustained and all the injuries were antemortem and caused by sharp cutting weapon. The death was within 18 to 24 hours from the postmortem examination.
5. On completion of the investigation, charge sheet was laid against the present appellant under Section 302 IPC. The offence alleged against the appellant being triable exclusively by the court of Sessions, learned Magistrate having taken cognizance of the case, committed the case to the court of Sessions. Learned Sessions Judge framed charge against the appellant under Section 302 IPC, to which, he pleaded not guilty and stood trial.
6. In course of trial, 13 witnesses were examined by the prosecution in order to bring home the charge against the appellant. On completion of the prosecution evidence, the accused/appellant was examined under Section 313 CrPC, wherein he pleaded innocence and examined himself as DW-1 in support of his case. On appreciation of the evidence, learned Sessions Judge convicted the appellant under Section 302 IPC and awarded the sentence as indicated above.
7. Aggrieved, the appellant preferred the instant appeal.
8. Learned counsel for the appellant, Mr. D. Talukdar, contends that though some of the prosecution witnesses sought to project themselves as eye witnesses, their oral testimony has suffered from glaring inconsistencies and contradiction among themselves, which rendered the oral testimony of the prosecution witnesses totally unworthy of trust. The purported dying declaration relied by the learned trial court was also not believable, inasmuch as, as per the oral testimony of PW-8, the lone independent witness, who arrived he place of occurrence first in point of time, the deceased was not in a position to speak after the occurrence and as such, there was no legal evidence to prove the charge against the appellant beyond reasonable doubt.
9. Supporting the conviction and sentence of the accused/appellant, learned counsel for the informant/respondent Mr. A.K. Gupta and learned Addl. P.P., Ms. S. Jahan, submit, that the evidence brought on record were sufficient to establish the charge beyond reasonable doubt.
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10. We have considered the submissions made by the learned counsel for the parties and also meticulously gone through the evidence and materials brought on record.
11. The first witness examined by the prosecution was the informant Hiten Das, who lodged the FIR. He stated that at the time of the occurrence at about 6.30 PM, he was in his shop, which was at a little distance from the place of occurrence. One boy, namely, Palbor (PW-8), who was also his co-villager came running to his shop and informed, that his brother Kanai was cut. Immediately, he rushed to the place of occurrence and saw that the victim was in a sitting position and his motorbike was being on the road by his side. He further deposed that on his arrival at the place of occurrence, the victim sought for water. He also deposed to have heard the victim saying that Pabitra Das cut him with a 'dao' and asked for taking him (victim) to hospital. He further stated that at that point of time, Robin Das (PW-2) and wife of the victim, Smt. Pranati Das (PW-4) as well as Bulbul Das (PW-5) came to the place of occurrence. They immediately arranged a vehicle and took the victim to Nursing Home. He also stated that on the way to hospital, Kanai Das told his wife that he was assaulted by Pabitra Das. According to him, Pranati Das, Bulbul Das, Robin Das and Parag Das were in the said vehicle. During cross examination, it was elicited that his grocery shop was at a distance of 300 meters from the place of occurrence. It was also elicited that PW-8, Palbor Das did not tell him as to who inflicted injury to the victim. It was also elicited that on the next morning, he lodged the FIR after discussing with the family members including Paragjyoti Das (PW-3), Rubul Das, Robin Das (PW-2) and Bulbul (PW-5). During cross examination he stated that there were three persons in the village by name Pabitra Das.
12. PW-2, Robin Das testified, that having learnt about the occurrence, he along with the PW-4 and PW-5 came and found the victim lying with injury all over his body and took the victim to Nursing Home at Dibrugarh by arranging a vehicle belonging to one Lalit Das. According to him, on the way to hospital, Kanai Das stated that he will soon die and that he has been cut by Pabitra Das. It was elicited during his cross examination that till his arrival at the place of occurrence, PW-1 did not reach the place of occurrence. He further stated that when they reached the place of occurrence, the deceased did not say anything to them. He also stated in cross examination that when he reached the place of occurrence, there was no Page No.# 5/11 other person from the locality. It was also elicited in his cross examination that the deceased did not specifically mention the name of the accused with his father's name and they implicated the accused on suspicion.
13. The third witness examined by the prosecution was one Porag Jyoti Das as PW-3. He testified that having heard the scream of someone by saying 'katile katile' he saw a bike falling on the ground at a distance of about 50/100 meter and he ran towards the bike and noticed injuries on the body of the deceased. According to him, Kanai Das (victim) told him that the accused caused the injury. According to him, till his reaching the place of occurrence, the accused was present there and he pushed him away and also asked not to inflict injury to the victim. Thereafter he raised alarm and then, PW-4 came. He further stated that in the meantime, people gathered and he became nervous seeing the incident. He further stated that Kanai Das requested him to help to raise up to seating position and also for calling a vehicle. Accordingly, he arranged a vehicle and Rubul Das, Robin Ds and Pranati Das took the victim to hospital. During cross examination, it was elicited that on the following day, the house of the accused was set ablaze. According to him, he informed the members of the family of the deceased Kanai Das.
14. PW-4 was the wife of the deceased. According to her, at about 6.30 PM, PW-3 came to her house and informed that her husband was assaulted and immediately she went to the place of occurrence and PW-3 left for arranging a vehicle. She stated that her residence was at a distance of about 200 meters, wherefrom she ran to the place of occurrence and heard her husband (victim) crying by saying 'katile katile'. She also deposed that her husband told her that the accused had inflicted the injury. During cross examination of this witness, it was elicited, that before she reached the place of occurrence, the accused had left the place. She further stated that the occurrence took place half an hour before her arrival at the place of occurrence. This witness also stated in cross examination that there were four persons by name Pabitra in their village.
15. PW-5, Bulbul Das stated that hearing commotion, he came to the place of occurrence and saw Kanai Das lying with injuries. In the meantime, a vehicle was brought by Lalit Das and thereafter he along with others accompanied the victim to hospital. He also stated that while going to hospital, Kanai Das mentioned a few times that accused had cut him and he will not Page No.# 6/11 survive and on reaching the hospital, the doctor declared the victim dead. It was elicited during cross examination that within 15-20 minutes the vehicle reached the hospital.
16. PW-6, father of the vicim testified that when Kanai Das was coming back after selling fish, the accused dealt several blows with his dao to Kanai and Kanai raised alarm by saying 'Morilo O, Morilo O, Bachao' (I am dying, I am dying, save me). According to him, PW-3 Paragjyoti Das drove away the accused and prevented the fight. According to him, he also met the accused at the place of occurrence, who had showed a 'dao' carrying with him and told that he had cut his son and also threatened to inflict injury to him.
17. PW-7 was one Sonali Das. According to her, she had heard someone crying by saying 'Morilu' (dying) and after some time, Paragjyoti Das (PW-3) came and informed her that the accused repeatedly dealt dao blows to the victim Kanai. She came to the place of occurrence and found Kanai Das lying with several injuries. She also stated to have noticed Pabitra (accused) leaving the place of occurrence. This witness also stated that Kanai Das was able to speak and he was sitting. According to her, the leg of the victim was severed.
18. PW-8, Utpal Das deposed that at about 6 PM, while he was studying in his house, having heard a sound of crying 'katile-katile', he came out of the house and found Kanai Das lying with injury. Immediately, he informed the members of Kanai Das's family and returned back. He further stated, that he did not see as to who caused the injury to the victim. During cross examination, he stated that his nick name is Palbar and when he reached the place of occurrence, he did not find Kuleswar (PW-6), Sonali Das (PW-7) and Pragjyoti Das (PW-3) at the place of occurrence. He further stated that when he returned back after informing the members of the Kanai Das's family, he saw people assembled at the place of the occurrence. It was also elicited during cross examination that when he saw Kanai Das lying with injury, he was not in a position to speak and he was lying speechless.
19. PW-10, Ashim Kumar Das stated that at about 6.30 PM, while he was returning from daily market, he had noticed from a distance of about half kilometer, that Kanai Das while crossed the house of the accused, the accused stopped him and dealt a blow with his dao and immediately Kanai Das fell down in the ground. He also stated to have seen Kanai Das carrying a mobile phone on his hand. In the meantime, there was commotion and people assembled, Page No.# 7/11 but he did not go to the place of occurrence.
20. PW-11, Jituram Das stated that at about 6.30 PM, while he was returning after playing football, he had noticed Kanai Das proceeding on his motorbike and at that time, Pabitra Das asked Kanai Das to stop and inflicted injury with dao on his leg. Thereafter Pabitra also hit him on his head and other parts of the body. According to him, after inflicting the injury, Pabitra Das left the place of occurrence and in the meanwhile, people assembled. During cross examination, this witness was confronted with his previous statement before police, which were also confirmed through the Investigating Officer, PW-13, which shows that he did not make any statement before police regarding witnessing the occurrence. PW-12, Santosh Das was not an eye witness. He stated to have heard about the occurrence from the PW-11.
21. On our assessment of the evidence, we find that PW-3, PW-6, PW-10 & PW-11 claimed to be eye witnesses of the occurrence. PW-3, Paragjyoti Das stated in his evidence that he had seen from a distance of about 50/100 meter that Kanai Das fell on the ground and on reaching the place of occurrence, he had seen injury on the body of Kanai Das. He also stated to have seen the accused Pabitra Das inflicting injuries and he resisted the accused from causing further injury and pushed him away. He further deposed that he raised alarm, hearing which the wife of Kanai Das arrived and thereafter he became nervous. The PW-6, father of the victim also stated that while he was coming from market, he had seen Kanai raising alarm 'Morilo-Morilo' 'Basao-Basao' and at that point of time, PW-3 had driven away the accused and prevented the fight between Kanai Das and Pabitra Das. He also stated that the accused threatened him to kill with the dao, which he was carriying in his hand. The PW-11 also stated that while he was coming after playing football, he had noticed Kanai Das proceeding on a motorcycle, who was obstructed by Pabitra and inflicted injuries. He further stated that after inflicting injuries, the accused left the place and thereafter other people assembled. A conjoint reading of the oral testimonies of these three witnesses would show that if the evidence of PW-11 is believed, then his testimony belies the oral testimony of PW-6 & PW-3 as regards their claim of witnessing the occurrence, inasmuch as, according to PW-11, he was witnessing the occurrence from the very beginning and other people assembled only after the accused had left the place.
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22. The evidence of the PW-8, Utpal Das also assumes significance, inasmuch as, according to him, he was studying at the time of occurrence and hearing sound of crying, he immediately came out of his house and found the victim Kanai Das lying in a pool of blood with injury and he was speechless. Immediately he rushed to inform the members of the family of the deceased and when he returned back, he had noticed that people assembled at the place of occurrence. The PW-1, brother of the deceased, who lodged the first information report also supported the PW-8. Because according to him, on being informed by the PW-8 about the occurrence he came to the place of occurrence and found the victim with injuries. According to PW-1, all other persons assembled after his arrival. The sketch map (Ext.9) shows that the house of PW-8 was in the close proximity of the place of occurrence and as such, if the evidence of PW-1, the first informant, brother of the deceased and PW-8, who appears to be most natural witness is believed, then it was only the PW-8, who came to the place of occurrence, before any other person arrived there. The PW-8 clearly stated that on reaching the place of occurrence, which was just by the side of his house, he found the deceased lying in a pool of blood with injury and he was not in a position to speak. He also stated that he had not seen the accused at the place of occurrence. Therefore, the oral testimony of PW-8, the most reliable and independent witness of the case and the PW-1 also belied the oral testimony of PW-6, PW-3 and PW-11 that they had witnessed the occurrence, inasmuch as the evidence of PW-8 would show that all the PW-11, PW-6 & PW-3 came later and as such though the PW- 11, PW-6 & PW-3 claimed to be eye witnesses their claim of being eye witnesses is hardly worthy of trust.
23. The PW-10 also claimed to be eye witness, who stated that he had seen the occurrence from a distance of half kilometer that the accused stopped the victim in front of his house and inflicted injuries with dao. He also stated to have seen a mobile phone in the hand of the deceased. Surprisingly enough, though he was witnessing the occurrence, he did not go to the place of occurrence. It was in the evidence of PW-8, that the light was insufficient at the time of occurrence. When the occurrence took place at a distance of half kilometer and it was already evening and light was insufficient, the testimony of PW-10 that he had seen the occurrence from a distance of half kilometer including the victim carrying a mobile phone in his hand appears to be inherently improbable and unworthy of inspiring confidence. This apart, his conduct that inspite of noticing the accused inflicting injuries to the victim, he did not feel the necessity to go to the place of occurrence also appears to be unnatural. Therefore, PW-10, Page No.# 9/11 though claimed to be eye witness, his testimony is hardly worth of trust
24. PW-1, the brother of the deceased stated in his evidence that on reaching the place of occurrence, he had found the deceased in sitting condition and he asked for water from him and also stated to have heard the deceased saying that Pabitra inflicted the injuries with dao. As already indicated above, PW-1 admittedly came to the place of occurrence on being informed by PW-8, the independent witness, who clearly deposed that the accused was not in a position to speak and he was lying speechless. It was in the evidence of PW-7 that one of the leg of the deceased was severed from his body, therefore the testimony of PW-1 that he had found the victim in sitting condition, who also made a dying declaration appears to be hardly worthy of inspiring confidence. The PW-2, PW-4 and PW-5 also stated about oral dying declaration made by the victim while shifting him to hospital. According to PW-2, on the way to hospital, the victim was saying, that he will soon die and that he had been attacked by Pabitra. During cross examination, this witness stated that the deceased did not mention the father's name of Pabitra and there were three persons by name Pabitra in their village and on suspicion, they had implicated the present appellant as his name is also Pabitra. The PW-4, the wife of the deceased stated that on her arrival at the place of occurrence hearing hue and cry, her husband told that the accused had cut him. She stated that the legs of her husband were almost severed and he also received cut injury on his head. She further stated that she accompanied her husband to hospital in a vehicle and throughout the journey to hospital, her husband was crying. PW-5, who also accompanied the victim to hospital along with PW-2 & PW-4 stated that on the way to hospital, Kanai Das mention a few times that accused had cut him and he will not survive. He also stated that on reaching the hospital, doctor told that the victim was already dead. During cross examination, it was elicited that it took 15-20 minutes time to reach the hospital. The PW-1, brother of the victim deposed that PW-2, PW-4, PW-3 & PW-5 accompanied the victim to hospital, but Paragjyoti Das (PW-3) stated that he did not go to hospital in the vehicle, rather, according to PW-3, PW-2, PW-4 & PW-5 accompanied the victim to hospital. Although, PW-2 & PW-5 stated that the victim made a dying declaration while he was shifted to hospital that Pabitra inflicted the injuries, such evidence was again belied by PW-4, the wife of the victim, inasmuch as, she did not state about any dying declaration being made by the deceased on the way to hospital, rather, according to her, the dying declaration was made by her husband at the place of occurrence when she reached Page No.# 10/11 there.
25. According to PW-2, the victim stated that he will soon die and that he was cut by Pabitra, whereas according to PW-5, the victim uttered the name of Pabitra few times. If the evidence of PW-2, PW-4 & PW-5 are read together, the evidence of PW-2 & PW-5 regarding the dying declaration made by the accused while shifting to hospital is hardly convincing, inasmuch as, the PW-4, the wife of the deceased, who was also in the vehicle did not support the PW-2 & PW-5 regarding the dying declaration on the way to hospital. This apart, the version of PW-2 & PW-5 also differs as to the exact words uttered by the victim. When the victim was shifted to hospital within 15-20 minutes and the doctor told that the victim already died, such evidence of PW-5, coupled with the evidence of PW-8, who clearly stated that the deceased was not in a position to speak rendered the oral testimony of PW-1, PW2, PW-4 & PW-5 as regards the oral dying declaration totally unworthy of credence. Although, the dying declaration is an important piece of evidence, before relying on a dying declaration, the court must be satisfied that what has been stated in the dying declaration is the unalloyed truth.
26. In the present case, evidently, the victim was not in a position to speak as deposed by PW-8, who was an independent witness. The oral testimony of the prosecution witness that though, the victim was shifted to hospital within 15-20 minutes, the doctor told that he was already dead also lent support to the oral testimony of the PW-8, that the victim was not in a position to speak. Thus, the above evidence along with the glaring inconsistencies and contradictions in the testimony of the PW-2, PW-4 & PW-5 render the oral testimony of the PW-1, PW-2 & PW-5 regarding oral dying declaration of the deceased extremely doubtful. Therefore, in our considered opinion, no reliance can be placed on the testimony of the PW-1, PW-2, PW-4 & PW-5 as to the so called oral dying declaration which is otherwise also a very weak piece of evidence.
27. Once the so called dying declaration is discarded, prosecution is literally left with no evidence, which would support its case. As already indicated above, there was no eye witness and the entire prosecution case was banking on the so called oral dying declaration, which is Page No.# 11/11 found to be unreliable.
In view of the above facts and circumstances and the materials brought on record, we are of the considered opinion that the prosecution evidence was grossly inadequate to prove the charge under section 302 IPC against the appellant and as such, the impugned judgment of conviction and sentence cannot be sustained. Accordingly, we set-aside the conviction and sentence of the appellant and consequently the appeal stands allowed.
We take note of the fact that learned Sessions Judge has not passed any order as to compensation under section 357-A IPC. Therefore, we direct the Legal Services Authority to pay Rs.5,00,000/- to the dependent of the deceased Kanai Das as compensation under the victim compensation scheme.
The appellant Pabitra Das be released forthwith, if not required in any other case. The appeal stands allowed.
Send down the LCR.
JUDGE JUDGE Mkk Comparing Assistant