Gauhati High Court
Smti Puni Das & 2 Ors vs The State Of Assam on 19 May, 2015
Author: P. K. Saikia
Bench: P. K. Saikia, M. R. Pathak
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Crl. Appeal (J) No. 87 of 2013
1. Smt. Puni Das,
Wife of Sri Dunra Das
2. Sri Ajanta Das,
Son of Sri Durna Das
3. Rajendra Das @ Pepe
Son of Sri Durna Das
( All are resident of Moricha Gaon
P.S. Chabua, Dist.--Dibrugarh
.... Appellants
Versus
The State of Assam
.... Respondent
BEFORE HON'BLE MR. JUSTICE P. K. SAIKIA AND HON'BLE MR. JUSTICE M. R. PATHAK For the Appellant : Ms. R.D. Mozumdar, Amicus Curiae.
For the Respondent : Mr. K.A. Mazumdar,
Addl.P.P., Assam.
Date of hearing : 18.02.2015
Date of judgment : 19.05.2015.
Crl. A.(J). No. 87 of 2013
2
JUDGMENT AND ORDER (CAV)
(P. K. Saikia, J)
This appeal is directed against the judgment and order dated 31.05.2013, passed by the learned Sessions Judge, Dibrugarh in Sessions Case No. 92/2007 convicting appellants herein of offences u/s 147/148/149/326/302 IPC and sentencing each of them to suffer imprisonment for life and also to pay a fine of Rs. 2000/- (Rupees Two Thousand) i/d R.I. for another 3 (Three) months for offence u/s 302 IPC, sentencing each of them to imprisonment for 6 (Six) months for offence u/s 147 IPC, sentencing each of them to suffer R.I. for 6 (Six) months for offence u/s 148 and sentencing each of them to suffer R.I. for another 6 months for offence u/s. 149 IPC.
2. Being aggrieved by and dissatisfied with the aforesaid judgment, appellants (herein after referred to as accused persons as well) have preferred this appeal from jail citing several infirmities in the judgment under challenge.
3. We have heard Ms. R.D. Mozumdar, learned Amicus Curiae appearing for the appellants and also heard Mr. K.A. Mazumdar, learned Addl. P.P., for the State.
4. The facts necessary for disposal of the present appeal, in short, are that one Sri Horen Dangoria lodged an FIR with O/C, Rahmaria Police Station on 12.01.2006 alleging that his nephew Rajib Dangoria was brutally assaulted by appellants, namely, (a) Druna, (b) Ananta, (c) Ajanta, (d) Rajenta and (e) Puni Das with various weapons, such as, dao, axe, sphere etc., inflicting serious wounds on his person which occasioned his instantaneous death. It has been stated that at the time of incident, the ill-fated boy was going to field in search of his cattle. It has further been stated that informant came to know about the alleged incident from one Tikira Das who was examined as CW.
Crl. A.(J). No. 87 of 2013 35. On receipt of such an FIR, O/C, Rahamaria Police Station, (in short, PS) registered a case vide Rahamaria P.S. Case No. 02/2006 u/s 147/148/149/326/302 IPC and ordered one Sri Radha Buragohain, SI of Police, to investigate the case. Being so entrusted with the investigation, Sri Buragohain went to the place of occurrence during the course of investigation, examined the witnesses and arrested accused persons.
6. As the investigation progressed from stage to stage, he also conducted inquest on the dead body at hospital, took necessary steps for holding the post mortem examination on the dead body of the person aforesaid, did other needful and on conclusion of investigation, he submitted charge sheet u/s 147/148/149/326/302 IPC against accused persons aforesaid showing one Druna Das as absconder.
7. The learned Magistrate before whom charge-sheet was so laid, committed the case to the Court of Session since the offence u/s 302 IPC is exclusively triable by the Court of Session. The learned Sessions Judge on receipt of case on commitment and on hearing the parties was pleased to frame charge u/s 147/148/149/326/302 IPC against accused persons and charges, so framed, on being read over and explained to them, accused persons pleaded not guilty and claimed to be tried.
8. During trial, prosecution had examined as many as 10 witnesses including the informant, Investigating Officer (in short, I/O) as well as Medical Officer (in short, M/O) who conducted the autopsy on the body of the victim. The statements of accused persons u/s 313 CrPC were also recorded. Accused persons pleaded that they are innocent and no way connected with the crime in question. However, on being required, they also declined to adduce evidence in their defence.
9. On conclusion of trial and on hearing the arguments, advanced, by the learned counsel for the parties, the learned court below was pleased to convict accused persons of offences u/s 147/148/149/326/302 IPC and Crl. A.(J). No. 87 of 2013 4 sentenced them to punishment as aforesaid. It is that judgment which has been assailed in the present appeal.
10. It may be stated that on earlier occasion too, all appellants herein were stood convicted for committing offences they were charged with vide judgment dated 26.03.2012 although under the said judgment Ananta Das stood acquitted of the offences, he was charged with. However, present appellants had preferred an appeal against such a judgment. This Court, on hearing the learned counsel for the parties in such an appeal, was pleased to quash and set aside the judgment of the Trial Court aforesaid and remanded the case for fresh decision.
11. While remanding the case, a direction was also rendered to the Trial Court to examine one Tikira Das who reported the incident in question to PW 6 (Haren Dangoria) and who set the law in motion on the basis of information, furnished by said Tikira Das. The Trial Court examined Tikira Das as CW and thereafter, by its judgment under challenge, was pleased to convict accused persons of offences U/s 147/148/149/302 IPC and sentenced them to punishment as aforesaid.
12. Ms. R.D. Mozumdar, learned Amicus Curiae appearing for the appellants submits that the judgment under challenge cannot be sustained since the evidence of principal prosecution witnesses are contradictory, inconsistent and defective on material points and therefore, no reliance could be placed on the evidence, rendered by PW 1, PW 2 and PW 3.
13. It has also been pointed out that Sri Horen Dangoria (PW 6), who lodged the FIR (Ext.2), deposes that he came to know about the incident in question from one Tikira Das. Tikira Das was examined as Court witness. In his evidence, Tikira deposes that he did not know anything about the incident in question and denied having reported the incident to PW 6 who reportedly lodged the FIR on the basis of information, furnished by him (Tikira).
Crl. A.(J). No. 87 of 2013 514. Since the person who allegedly reported the incident in question to the informant refused to support the claim of PW 6 that on being informed about such incident, he lodged the FIR (Ext.2), it needs to be concluded that the prosecution case has no legs to stand on at all which, in turn, throws the entire prosecution case to overboard --------argues learned Amicus Curiae.
15. Prosecution, according to learned Amicus Curiae, places enormous reliance on alleged the seizure of weapon of offence and in that connection, testimonies, rendered by PW 4, PW 5, PW 7 and PW 10 were banked upon. However, the testimonies of most of those PWs are contradictory on material points. To support such a contention, it has been stated that PW 5 deposes that an axe was seized by police on the very next day of the incident in question. However, the seizure list, Ext. 1, reveals that the seizure of weapon, allegedly used in committing the crime in question, was seized only on 10.02.2006.
16. Similarly, though PW 5 as well as PW 7 depose that at the time of seizure of axe, it was smeared with blood but neither the I/O nor the seizure list, prepared by the I/O in that connection, discloses anything about the aforesaid axe being smeared with blood when it was seized. Even, PW 4, one of the signatories to the seizure list, did not speak anything about an axe , smeared with blood , being seized by I/O during investigation .
17. Again though PW 5, Sri Padmeswar Phukan, PW 7, Sri Depanta Das and PW 10, Radha Buragohain claim that the axe, used in committing the crime in question, was seized from the house of accused persons but the other witnesses, more particularly, PW 4 did not utter any word about aforesaid axe being seized from the house of accused persons. Thus, there is hardly any scope for the prosecution to place any reliance on the seizure list, Ext. 1 to prop up its case.
18. According to learned Amicus Curiae, some other persons, such as, Nirmal Dangoria, who reportedly saw the alleged incident was not made witnesses in the present case. Non examination of persons as witnesses who Crl. A.(J). No. 87 of 2013 6 reportedly saw the incident without assigning any reason whatsoever is fatal and on this count also, prosecution case ought to have been viewed with suspicion.
19. PW 1, Smti. Junu das @ Fumu Das @ Jhum Das deposes that incident occurred in front of her house. According to her, the victim as well as the accused persons resides at a place, separated by a distance of about 5 km. Similarly PW 2, Smti. Renu Das deposes that while the deceased resided at a place 5 km from the P.O., accused persons reside at a place 10 km from such place. It has not been shown as to why and for what purpose, the deceased and accused persons came to the place of occurrence on the eventful afternoon, far away from their respective residences.
20. In view of above, learned Amicus Curiae submits that prosecution could not at all make out the charges leveled against accused persons, much less its proving the charge against accused persons beyond all reasonable doubt as required under the law and as such, the judgment under challenge needs to be quashed and set aside and accused persons needs to be acquitted of the offences aforesaid.
21. On the other hand Mr. K.A. Mazumdar, learned Addl. P.P., submits that though there are some infirmities in the testimonies, rendered by PWs, more particularly, PW 1, PW 2 and PW 3, yet, such infirmities cannot be said to be of that nature which require the court to disbelieve the evidence, so tendered by them. Rather such inconsistencies in the evidence of those witnesses are found to be quite natural and normal since they were asked to render evidence before the court after a gap of several years.
22. His further case was that the evidence of PW 3 is truthful which is found evident from her cross examination and such evidence of PW 3 alone establishes the charges leveled against the accused persons.
23. Regarding infirmities in the seizure list, it is said that when testimonies of all the witnesses are read together, it would appear clear that there are Crl. A.(J). No. 87 of 2013 7 some minor infirmities in the testimonies of PWs vis-à-vis seizure of weapon of offence. But such infirmities cannot be allowed to be blown beyond their sizes since the prosecution establishes that seized axe was used in committing the crime in question. He, therefore, urges this court to dismiss the present appeal on affirming the judgment of the trial court.
24. We have heard the learned counsel for the parties, having regard to the judgment under challenge and materials on record. We have found that the star prosecution witnesses are PW 1 Smt. Junu Das @ Fumu Das @ Jhum Das, PW 2 Smti. Renu Das, PW 3, Smti. Lakhima Das. In her evidence, PW 1 states that on the fateful morning, she saw accused persons chasing the ill- fated boy.
25. She also saw them running after the victim, armed with dao, axe, lathi etc. It is in her evidence that accused persons assaulted the aforesaid boy on the road. She did not see accused Ananta at such place when the incident was going on. Being so, assaulted, the victim fell down on the ground profoundly injured. His whole body was smeared with blood.
25. He was, thereafter, taken to hospital where he died subsequently. In her cross examination, she, however, admits that when she came to the place of occurrence, accused persons had already left such place. Therefore, she could not say what types of weapons were used in assaulting the victim. Such admission on the part of PW 1, in our opinion, clearly shows that she was not an eye witness to the incident aforementioned.
26. PW 2 also deposes that on the fateful date at about 3.30 p.m., the incident in question took place. She heard hue and cry and came out of her house and saw victim being assaulted by accused persons. According to her, while Smti. Puni Das and Durna Das were armed with Fepera, Ajanta was also armed with an axe. Being so hit, the victim fell down on the ground for which the victim was taken to hospital where he died sometime later. In her cross examination, she stated that she saw the incident from a distance of Crl. A.(J). No. 87 of 2013 8 about 100 meter but she did not find accused Ananta amongst the accused persons.
27. PW 3 deposes that on the fateful day, she heard hue and cry on the road in front of their house. Hearing such hue and cry, she came out of her house and saw accused persons including Durna assaulting Rajib with dao and axe. Being so assaulted, the deceased fell down on the ground. Soon thereafter, accused persons too fled the scene. Injured was taken to hospital but he died sometime later. According to PW 3, though Ananta was also at the place of occurrence yielding lathi but he did not took part in the assault.
28. PW 5, Sri Padmeswar Phukan, PW 6, Haren Dangoria and PW 7, Dipanta Das are not the eye witnesses to the incident. They came to know about the incident from others. According to PW 6, the incident was reported to him by one Tikira (CW) and on the basis of such information, a police case was registered and in connection of which police seized an axe on the strength of seizure list (Ext. 1).
29. It may be stated here that PW 4, Sri Jogen Das, PW 6 and PW 7 are also said to be witnesses to the seizure of weapon of offence, namely, axe on the strength of seizure list, Ext. 1. While PW 6 and PW 7 supported the fact of seizure of aforesaid weapon of offence, PW 4 refused to do the same since he is found saying that he did not know anything about the alleged incident far too less about seizure of axe by the police during investigation.
30. PW 10 is I/O of the case. According to him, on 12.01.2006 he was doing duty as attached officer at Rahmaria Police Station. On that day, PW 6, Haren Dangoria lodged an FIR alleging that accused persons had assaulted and killed one Rajib Dangoria. On the basis of such an FIR, a case was registered and he was ordered to investigate the case. During the course of investigation, he visited the place of occurrence, prepared a sketch map of the same, examined the witnesses, did other things needful but before he could complete the investigation, he was transferred.
Crl. A.(J). No. 87 of 2013 931. Before we proceed further, we find it necessary to consider the evidence of Doctor who conducted autopsy on the dead body. He was Dr. Rupak Kr. Gogoi and was examined as PW 9. According to him, on 13.06.2006 (13.01.2006 ?), he was posted as Assistant Professor in the Department of Forensic, Assam Medical College and Hospital, Dibrugarh. On that day, he conducted autopsy on the body of one Rajib Dangoria and found the following:-
"1. Incised wound measuring 3 cm x 1 cm present on right zygamatic area directed downward and forward muscle deep.
2. Incised wound 5 cm x 1 cm present on muscle deep, on outer aspect of upper third of right arm directed down ward and forward.
3. Incised wound 4 cm x 1 cm which incised the right ulna bone, present on distal third of right forearm on outer side in horizontal plane.
4. Incised wound 2 cm x 1 cm x muscle deep present on back of right hand.
5. Incised wound 12 cm x 4 cm x muscle deep present on front of the right thigh in middle part, directed downward medially.
6. Incised wound 4 cm x 1 cm x muscle deep present on lower third of outer aspect of right leg, directed downward and forward.
7. Incised wound 7 cmx 1 cm present on left partietal area of scalp, directed downward and forward, which incised the skull bone.
8. Incised wound 3 cm x 1 cm x scalp deep, present on occipital area of the scalp in horizontal place."
32. According to PW 9, the death was due to shock and haemorrhage resulting from injuries as described. All injuries were ante mortem and caused by sharp cutting weapons and homicidal in nature. The above evidence of the Doctor has not been disputed by accused persons. Now, we need to know who caused the death of Rajib Dangoria on 12.01.2006.
Crl. A.(J). No. 87 of 2013 1033. We have already found that though PW 1, PW 2 and PW 3 claim that they were witnesses to the incident under consideration, yet, we have also found that PW 1 is not an eye witness since she impliedly admitted in her cross-examination that accused persons left the PO before her arrival at such place. Being so, no reliance can be placed on her evidence in ascertaining the charges, leveled against accused persons.
34. So situated, let us consider the evidence of PW 2 and PW 3. In her evidence, PW 3 claims that accused Ananta was also present at the place of occurrence armed with lathi when the incident was still going on although he was not taking part in assaulting the victim. However, such evidence has been completely contradicted by PW 1 and PW 2 who, in no uncertain terms, claim that Ananta was not present at the place of occurrence when the incident under consideration was under progress.
35. It is worth noting here that Ananta Das was examined as DW 1. Having examined as above, he claims that he lives separately from his other family members long before the incident in question occurred. According to him, he lives at a place situated at a distance of 2 Kms from his other family members. It is also in his evidence that he was not present at the PO on the eventful afternoon.
36. We have found no reason not to accept the aforesaid testimony of DW 1. Such revelation gives more and more credence to the testimonies of PW 1 and PW 2 that accused Ananta was not present at the PO on the afternoon aforementioned. The projection above not only caste a serious doubt about the credibility of the evidence of PW 3 but it also requires the Court to view the entire prosecution case with enormous suspicion.
37. According to PW 10, the incident in question occurred on the road just in front of the house of accused persons. However, in her evidence, PW 2 claims that house of accused persons situated at a distance of 10 kms from the PO. In that connection, PW 1 deposes that the house of accused persons Crl. A.(J). No. 87 of 2013 11 is situated at a distance of 5 kms from such place. Thus, those three PWs gave different stories regarding the location of the place of occurrence.
38. One may note here that the house of the deceased is situated at a distance of 5 kms--- according to PW 1 and PW 2. Why the deceased came to the place of occurrence, situated at a distance of 5 kms from his house on the eventful afternoon has not at all been explained by the prosecution. In our opinion, in the facts and circumstances of the present case, the prosecution was duty bound to show why the deceased was at such an unexpected place on the eventful afternoon. Since it was not done, it also casts a serious doubt about the authenticity of the entire prosecution case.
39. We have also found that PW 5 and PW 7 claim that an axe was seized on 10.02.2006 and when it was so seized, it was smeared with blood. However, I/O did not utter a single word about the seizure of an axe, smeared with blood. Nor was there any averment in seizure list, (Ext. 1) to show that at the time of seizure of the aforesaid axe, it was smeared with blood.
40. Worse still, PW 4, one of the signatories to the seizure list, did not even utter any word about the seizure of any axe on 10.02.2006 by the I/O ,much less seizure of an axe, smeared with blood. Therefore, the claim of PW 5 and PW 7 that during the course of investigation, I/O seized an axe, smeared with blood, is again found to be extremely doubtful.
41. It may also be stated that incident in question took place on 12.01.2006 whereas seizure was made as late as 10.02.2006 and such seizure was made from accused persons, if one believes the averments made in seizure list, Ext. 1. More importantly, there is evidence on record to show that house of accused persons was burnt down on the day on which Rajib Dangoria got killed. Therefore, it is wholly unbelievable that the seized axe would retain blood mark thereon despite being the house where from such axe was recovered and seized burnt down by fire. The fact that police seized a half burnt axe makes such a conclusion inevitable.
Crl. A.(J). No. 87 of 2013 1242. The inconsistencies in the evidence of prosecution witnesses on matters pertaining to seizure of weapon allegedly used in committing the crime in question and the impossibility of such a seized article to retain blood mark thereon after being burnt by fire raise serious doubt about the authenticity of evidence of those witnesses which is, in turn, makes the prosecution case more and more doubtful.
43. PW 6 deposes that he came to know about the alleged incident from one Tikira. Averments, rendered in the FIR (Ext. 2) support such a claim. In other words, the whole prosecution case was premised on the information, furnished to PW 6 by one Tikira. However, Tikira, was not examined as prosecution witness for which he was examined as Court witness. As being a Court witness, Tikira, refused to support such a contention, made by PW 6 since he is found saying that he did not know anything about the alleged incident.
44. Accused Ajanta was examined as DW 2. According to him, he was not at the PO on the eventful afternoon. Even his other family members were not present at the PO as per his information. Such evidence, in our opinion, makes the plea of accused persons that they were no way involved in the crime in question more and more acceptable
45. We have already found that the victim died a homicidal death on 12.01.2006. But then, in our considered opinion, prosecution could not establish beyond all reasonable doubt that accused persons had killed the deceased at the PO on the fateful afternoon and that they did so in furtherance of their common object and as such, it cannot be said that learned Trial Court was right in convicting accused persons of the offences, they were charged with and sentencing them to punishment as aforesaid.
46. In the result, the judgment under challenge is liable to be quashed and set aside.
Crl. A.(J). No. 87 of 2013 1347. Consequently, the judgment in question is quashed and set aside and accused /appellants are acquitted of offence U/s. 147/148/302/149 IPC. They are ordered to be released forthwith, if they are not required in connection with any other case.
48. Return the LCR.
49. We deeply appreciate the assistance rendered by Ms. R. D. Mozumdar, learned Amicus Curiae. We, therefore, direct the State to pay her an amount of Rs. 7,000/- (Rupees Seven Thousand) as being her professional fee. Same needs to be paid within a period of 3 (Three) months from the date of receipt of a certified copy of this judgment.
50. Since the deceased died a tragic death on 12.01.2006, we are of the opinion that some compensation as completed u/s 357A CrPC needs to be paid to legal heir(s) of the deceased on proper identification.
51. Accordingly, we direct the State to pay an amount of Rs. 1, 00,000/- (One lakh) only to the legal heir(s) of the deceased as being compensation. The said amount is to be paid within a period of 3 (Three) months from the date of receipt of a certified copy of this judgment and same needs to be paid through the secretary of District Legal Services Authority, Dibrugarh.
52. A copy of this judgment be furnished to the Secretary, State Legal Services Authority for doing further needful as indicated above.
JUDGE JUDGE
Rupam
Crl. A.(J). No. 87 of 2013