Gauhati High Court
Tunu Urang vs The State Of Assam on 19 December, 2019
Equivalent citations: AIRONLINE 2019 GAU 666
Author: Nani Tagia
Bench: Nani Tagia
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GAHC010287142018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 122/2018
1:TUNU URANG
S/O. LT. HOLIRAM URANG, R/O. PURNE BORPATHAR, P.S. BORPATHAR,
DIST. KARBI ANGLONG.
VERSUS
1:THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : SRI JASADHIR DAS, AMICUS CURIAE
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
HONOURABLE MR. JUSTICE NANI TAGIA
JUDGMENT
Date : 19-12-2019 Heard Mr. J. Das, learned Amicus Curiae, appearing for the appellant and Ms. S. Jahan, learned Addl. P.P., Assam.
2. This appeal is directed against the judgment and order, dated 17.09.2018, passed by the learned Sessions Judge, Karbi Anglong, Diphu, Assam, in Sessions Case No. 215/2017. By the said judgment, the learned Sessions Judge convicted the accused/appellant under Section 302 of the IPC and sentenced him to imprisonment for life and pay a fine of Rs. 2,000/- with Page No.# 2/6 default stipulation.
3. The case of the prosecution, is that, on 31.07.2017 at about 5AM, a quarrel took place between the appellant and his son, Dharmeswar Urang, on some domestic matters. On the same day, at about 3PM, the body of the deceased Dharmeswar Urang was found in the house of the tenant of the appellant. Having got the information, the brother of the deceased, Birsa Urang (PW-1) lodged an FIR (Ext.-1). On the basis of the said FIR lodged by the PW-1, the police registered Borpathar P.S. Case No. 25/2017 under Section 302 IPC and commenced the investigation. During investigation, police recorded the statement of the witnesses under Section 161 CrPC, prepared the inquest report and sent the body of the deceased for post-mortem examination.
4. PW-6, Dr. Sorojit A. Marak, who conducted the post-mortem examination, found a long sharp cut injury around 8cm x 5cm on right lateral of neck with transected trachea along with transected right sided neck muscles and blood vessels with sign of bleeding and hematoma.
In the opinion of the doctor, the death was caused due to heamorrhagic shock and asphyxia following a long and deep cut injury on right side of neck.
5. On conclusion of the investigation, charge sheet was laid against the accused/appellant, and eventually he stood trial.
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6. In course of trial, charge was framed under Section 302 IPC against the appellant, to which he pleaded not guilty. Prosecution examined as many as 7(seven) witnesses including the doctor and the investigating officer. Out of the 7(seven) witnesses, PW-1 Birsa Urang, the elder brother of the deceased, stated in his evidence that he was living in a separate house at a distance of 1 KM from the parental house. However, the deceased and his father were residing jointly in the same house. According to him, on the day of the occurrence, at about 2PM, he was informed, that his father had killed his younger brother. Immediately, he came to the place of occurrence and found the body of his deceased brother with injuries. He also stated to have found his father sleeping in a separate room. During the cross-examination, he stated that one Nepali person informed him about the occurrence.
7. John Panika, PW-2, stated that he came to know from the villagers that the appellant has cut his own son and thereafter, he came to the place of occurrence alongwith others and found the deceased lying on the floor of a newly constructed room.
8. PW-3, Dilip Bhujel, a tenant of the appellant, stated that he was staying in the rented house belonging to the appellant and on the day of occurrence, he went out for his work. When he came back from work at about 12 o'clock, he noticed that the door of his house was open. Out of curiosity, when he entered into the room, he saw the dead body of the deceased lying on his bed. Immediately, he went to the house of the brother-in-law of the deceased and informed him about the matter.
9. According to Anupoma Urang, PW-5, she was informed that someone had killed Dharmeswar Urang (deceased). Immediately, she went to the place of occurrence and saw injuries on the body of the deceased. She also pleaded ignorance about the presence of the appellant at the place of occurrence.
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10. The Investigating Officer, PW-7, basically testified about the various steps taken by him during the investigation. According to him, he seized the ' dao' which was used in the commission of offence from the house, where the dead body was found.
11. Relying on the above evidence, the learned Sessions Judge recorded the conviction of the appellant and awarded the sentence, as indicated hereinbefore. Apparently, there was no direct evidence and conviction was based on circumstantial evidence. The learned Sessions Judge held that the deceased was found dead in the house of the appellant and the appellant did not offer any explanation as to how the death of the deceased was caused. Thus, basically relying on the said circumstance, the conviction of the appellant was recorded putting a reverse burden on the appellant under Section 106 of the evidence Act.
12. Evidently, the body of the deceased was found in the rented house of one Dilip Bhujel (PW 3). It was also in the evidence that after the occurrence, when the dead body was recovered and the PW-1 as well as others came to the place of occurrence, the appellant was found in his own house in an inebriated condition. When the police came, then only, he came out on being called by the police. The learned Sessions Judge observed that the appellant was found inside the house where the occurrence took place, but, we find no evidence on record to support such observation, that the deceased was found in the house, wherein the dead body was lying or the occurrence took place and as such, this finding of the learned Sessions Judge appears to be perverse inasmuch as, the dead body was admittedly found in the rented house of PW-3 and not in the house, where appellant was residing.
13. In a criminal trial burden is always on the prosecution to prove the guilt of the accused beyond reasonable doubt and Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden. Only when prosecution proves certain fact from which reasonable inference can be drawn regarding certain other facts, which unless explained by the accused Page No.# 5/6 by virtue of his special knowledge, tend to inculpet the accused, in such circumstance the accused owe an explanation, otherwise section 106 of the Evidence Act does not put any burden on the accused to prove his innocence. In the present case evidently prosecution has not been able to prove any fact, from which an adverse inference could be drawn to attribute culpability to the appellant, in absence of any explanation. As already indicated above, the findings of the learned trial court, that the deceased was found with the appellant in his house was perverse. Once, this findings is discarded, there is no other materials on record to attribute any special knowledge to the appellat in respect of the death of the deceased.
14. In the above facts and circumstances of the case, in our considered view, the accused appellant does not owe any explanation, with regard to the homicidal death of the deceased. Thus, having considered the evidence on record, we are of the considered opinion that the learned Sessions Judge wrongly shifted the burden on the appellant to seek an explanation from the accused in as much as, the very basis of seeking any explanation from the appellant that he was with the deceased at the time of occurrence has not been proved. Once, this circumstances, which the learned trial court heavily relied upon, is discarded, prosecution is left with no evidence, direct or circumstanital
15. In the above facts and circumstances, we are of the considered opinion that the prosecution has failed to prove the charge under Section 302 IPC against the present accused appellant, and as such, the conviction recorded and sentence awarded to the accused appellant cannot be sustained. Accordingly, we set aside the conviction and sentence of the appellant. Consequently, the appeal stands allowed. The appellant shall be released forthwith if he is not required in connection with any other case.
16. Having taken note of the service rendered by Mr. J. Das, learned Amicus Curiae, to this Court in conducting this matter, we hereby direct that a sum of Rs. 7,500/- be paid to him by the Legal Service Authority as a remuneration.
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17. The appeal stands allowed and disposed of.
18. The LCRs be remitted to the learned Court below forthwith.
JUDGE JUDGE Comparing Assistant