Gauhati High Court
Ananta Sharma vs The State Of Assam on 10 March, 2015
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
Crl.A 157/2006
1. Sri Partha Pratim Bhuyan @ Debo Bhuyan
S/o- Lt Lakhinath Bhuyan
Resident of Saraipani, Chappana Grant
P.S- Titabor
District- Jorhat, Assam.
......... Appellant
-Versus-
1. The State of Assam
............ Respondent
For the appellant : Mr. D. Talukdar, Adv
For the respondent : Mr. B. Gogoi, Addl. P.P.
AND
Crl.A 154/2006
1. Sri Ananta Sharm a
S/o- Late Kabi Sharmah
Resident of village Amguri Kharikatia
P.S- Titabor
District- Jorhat, Assam.
......... Appellant
-Versus-
1. The State of Assam
............ Respondent
For the appellant : Mr. J. C. Barman, Adv
For the respondent : Mr. B. Gogoi, Addl. P.P.
2
BEFORE
HON'BLE MR. JUSTICE B.K. SHARMA
Date of hearing : 10.03.2015
Date of Judgment : 10.03.2015
JUDGMENT & ORDER (ORAL)
1. Both the appeals arising out of the common judgment of conviction have been heard together and are being disposed of by this common judgment. The appeals are directed against the judgment dated 22.06.2006 of the learned Additional Sessions Judge, Jorhat passed in Sessions Case No.78/2004, by which both the accused/appellants have been convicted u/s 304 Part-II/34 IPC with the sentence of rigorous imprisonment for 05(five) years each and to pay a fine of Rs.1000/- (rupees one thousand) each, and in default, further imprisonment for another 03(three) months.
2. On the basis of the FIR that was lodged by PW-1, who is the brother of the deceased, on 29.10.2003, Titabor Police Station Case No.92/2003 was registered u/s 302/34 IPC, which was preceded by Bandarchaliha out post GD Entry No.375 dated 28.10.2003. The story narrated in the FIR (Ext.2) is that on 28.10.2003 at about 9/10 A.M., the deceased of Bandarchaliha under Titabor Police Station was brought dead to his house on a motorcycle by two persons, who revealed to PW-2, the wife of PW-1 that they had brought the deceased in that condition as per direction of the accused/appellant involved in Criminal Appeal No.157/2006.
3. Upon registration of the aforesaid police station case, the Investigating Officer carried out the investigation and in due course submitted charge sheet. Thereafter, the accused/appellants were charged u/s 302/34 IPC, to which they pleaded not guilty and claimed to be tried.
4. During trial, the prosecution examined 14(fourteen) witnesses. The accused/appellants were also examined u/s 313 Cr.P.C. Raising the 3 following point for determination, the learned trial Court having convicted the accused/appellants as aforesaid, they have preferred the independent appeals.
W hether accused Sri Partha Pratim Bharali, Sri Dadu K achari, Sri Sanjib Gogoi, Sri R obin Gogoi and Sri Ananta Sarm a had, in furtherance of com m on intention of all of them , com m itted m urder by intentionally/ know ingly causing the death of Putul Gogoi in the night of 27.10.2003 or in the m orning of 28.10.2003 at Bandarchaliha under Titabor P.S or not?
5. I have heard Mr. J.C Barman, learned counsel representing the accused/appellant in Criminal Appeal No.154/2006 and so also Mr. D. Talukdar, learned counsel representing the accused/appellant involved in Criminal Appeal No.157/2006. I have also heard Mr. B. Gogoi, learned Additional Public Prosecutor, Assam. I have also perused the entire materials on record.
6. Both Mr. Barman and Mr. Talukdar, learned counsels submit that the learned trial Court could not have convicted the accused/appellants on the basis of the evidence on record. According to them, suspicion howsoever might be grave cannot lead to conviction of the accused/appellants. They also submit that it being a case of circumstantial evidence, the prosecution was required to establish the offence alleged against the accused/appellants by establishing all the links, but there is total failure on the part of the prosecution to do so.
7. Countering the above argument, Mr. B. Gogoi, learned Additional Public Prosecutor, Assam on the other hand, submits that the deceased being under the custody of the accused/appellants, it was for them to explain the circumstances leading to his death. He submits that the deceased having been brought to his house on a motorcycle when he was already dead, would go to show that it was the accused/appellants, who were responsible for causing his death.
8. I have given my anxious consideration to the submissions made by the learned counsels for the parties and have also perused the entire materials on record. My findings and conclusions are as follows.
49. The learned trial Court has passed the impugned judgment of conviction primarily on the basis of the evidence of PW-13 and also in reference to the evidence of the hostile witnesses i.e. PW-10 and PW-12.
10. PW-1 is the informant and elder brother of the deceased, who in his deposition sated that when the deceased was brought on a motorcycle, he was not at home, but was informed of the same by PW-2. Thereafter, he lodged the FIR (Ext.2).
11. PW-2 is the wife of PW-1, who in her deposition stated that on the day of occurrence at about 9 a.m., two boys had brought the deadbody of her brother-in-law on a motorcycle and told her that they had brought the deadbody as was sent by the accused/appellant Debo @ Parthapratim i.e. the accused/appellant involved in Criminal Appeal No.157/2006. It will be pertinent to mention here that two other persons namely, Sri Dadu Kachari and Sri Robin Gogoi in their statements recorded u/s 313 Cr.P.C stated that they had brought the deceased on a motorcycle while he was alive.
12. PW-3 is another brother of the deceased, who in his deposition stated about calling him by PW-2 to their house. On visit, he found the deadbody of the deceased.
13. PW-4 and PW-5 stated in their depositions that they had heard about the death of the deceased.
14. PW-6 is the wife of another co-accused Sri Sanjib Gogoi. She along with PW-7 and PW-8 deposed that they had seen the deceased hale and hearty on the previous day of the incident. PW-7 and PW-8 in their depositions stated that they had seen the deceased coming out from the house of PW-6 and PW-9.
15. As recorded in the impugned judgment of conviction and also found from the narration of the evidence led by the prosecution, there is no eye witness as to how the deceased died. However, the learned trial Court on the basis of the evidence adduced by PW-1, PW-2 and PW-3 has held that the deceased was brought dead to his house. In this connection, the statements of 5 Dadu Kachari and Robin Gogoi, recorded u/s 313 Cr.P.C, referred to above, has also been referred to. As noticed above, in their statements u/s 313 Cr.P.C, it was their specific plea that they had brought the deceased to his house when he was alive.
16. PW-14 in his deposition stated that the motorcycle in question was seized vide seizure list (Ext.8). From the seizure list it was found that one Subon Bora was the registered owner of the motorcycle, who had executed a Sale Deed on 24.10.2003 in favour of the accused/appellant involved in Criminal Appeal No.157/2006. Although the motorcycle was not registered in his name, but he came in possession of the same by virtue of the said Sale Deed.
17. As noted above, the learned trial Court has convicted the accused/appellants primarily on the basis of the evidence adduced by PW-13 and in reference to the evidence adduced by the hostile witnesses i.e. PW-10 and PW-12.
18. PW-13 in his deposition stated that on 27.10.2003 at about 7 p.m., while he was working as ASI of Titabor Police Station, the accused/appellants brought the deceased in drunken condition in a vehicle having Green Tea Leafs to Titabor Police Station. Thereafter, GD Entry No.640 dated 27.10.2003 was made (Ext.3). According to him, Putul Gogoi i.e. the deceased was sent to Titabor PHC for medical examination through a requisition, for which separate GD Entry No.641 of the same date was made (Ext.4). After medical examination of the deceased, he was again taken to Titabor Police Station and the opinion of the doctor was noted vide GD Entry No.642 dated 27.10.2003 (Ext.5). According to this witness, Putul Gogoi was handed over to both the accused/appellants for dropping him in his house, for which another GD Entry No.645 dated 27.10.2003 was made (Ext.7).
19. According to the evidence of PW-10 and PW-12 (declared hostile), the accused/appellants inste4ad of taking Putul Gogoi i.e. the deceased to his home, kept him in the firm house belonging to accused/appellant involved in Criminal Appeal No.157/2006. Following day 6 morning, he was sent to his house on a motorcycle driven by Dadu Kachari and Robin Gogoi.
20. It is on the basis of the above evidence, the learned trial Court has held the accused/appellants guilty of the offence punishable u/s 304 Part- II/34 IPC. What weighed the mind of the learned trial Court is that the accused/appellants instead of dropping the deceased in his house, had taken him to the aforementioned firm house and kept him there for the night. It was only on the following morning, he was sent on a motorcycle through Dadu Kachari and Robin Gogoi. In the statements made u/s 313 Cr.P.C, said Dadu Kachari and Robin Gogoi categorically stated that when Putul Gogoi was taken to his home, he was very much alive. On the other hand, PW-1, PW-2 and PW- 3 stated that he was brought dead. Referring to the said evidence, the learned trial Court has come to the conclusion that it being a case of circumstantial evidence, the chain of events stood established. Presumption has been drawn that since the deceased was kept in the firm house, it was the accused/appellants, who were responsible for the commission of the offence punishable u/s 304 Part-II/34 IPC.
21. As discussed above, it was the accused/appellants who had taken the deceased i.e. Putul Gogoi to police station when he was found drunk. He was also medically examined and thereafter the police advised the accused/appellants to take Putul Gogoi to his home. But according to the defence, Putul Gogoi declined to go home and instead stayed back along with the accused/appellants in the firm house. Merely because he had stayed back with the accused/appellants and was sent home through Dadu Kachari and Robin Gogoi, who in their statements recorded u/s 313 Cr.P.C stated that Putul Gogoi i.e. the deceased was very much alive when he was brought home, it cannot be said that in the circumstances it was the accused/appellants who were responsible for the death of the deceased. In this connection, the evidence adduced by PW-10 may be referred to, who in his cross examination stated that on being asked to go home, Putul Gogoi declined to go and accordingly he was given shelter in the firm house.
722. PW-11 is the doctor, who had performed the postmortem examination over the deadbody of Putul Gogoi on 29.10.2003. He in his deposition stated that he found the following injuries on the person of the deceased:-
1. Laceration 3 cm x ½ cm x skin deep in the left lateral side of the forehead.
2. M ultiple abrasions of different size and shape in the back and posterior side of legs i.e. both legs.
3. The w all of the abdom en though found intact but it w as found sw ellen on the left half. The spleen found raptured. Spleen can be raptured by hitting on the hard substance or by kicking or by a blow and som etim es in such cases there m ay not be any injury ex ternally. The rapture of the spleen is sufficient in the ordinary course to cause the death of a person.
The w hole abdom en w as found full of blood.
R igorm ortis present and the injuries w ere ante-m ortem .
The other organs w ere found healthy.
Opinion:- the death w as due to syncope resulting from close abdom inal injuries sustained by the deceased i.e. for the rapture of the spleen.
In the cross examination, he stated thus:-
No ex ternal injury w as found in the abdom en or on the chest of the deceased. Due to falling on hard substance, spleen m ay be raptured also. To rapture the spleen, forceful violence from outside is m ust either by falling or by hitting in violent w ay. R apture of the spleen is a blunt injury in nature.8
23. From the above piece of evidence of PW-11, what is found is that no external injury was found in the abdomen or on the chest of the deceased. As regards the damage caused to the spleen, he was of the opinion that due to falling on hard substance, there might be rapture of the spleen.
24. Another aspect of the matter is that if the accused/appellants had killed the deceased, in the normal circumstances, they would not have sent him in a motorcycle that too through two other persons, who have been acquitted. As submitted by the learned counsels for the appellants, had the deceased been dead when he was taken home in a motorcycle, it would not have been possible to take him in a motorcycle. The conduct of the accused/appellants is also to be taken note of in the entire episode. It was the accused/appellants who had taken the deceased Putul Gogoi to the police station when he was found drunk. Thereafter, although he was taken to the firm house of the accused/appellant in Criminal Appeal No.157/2006, there is nothing to show that it was the accused/appellants, who caused the death of the deceased.
25. As noted above, suspicion howsoever might be grave, cannot lead to conviction. For all the aforesaid reason, I am of the considered opinion that the accused/appellants are entitled to benefit of doubt.
26. Accordingly, the impugned judgment of conviction and sentence passed by the learned Additional Sessions Judge, Jorhat in Sessions Case No.78/2004 stands interfered with by setting aside the same. Both the appeals are allowed. Bail bonds shall stand discharged.
27. Registry shall transmit the case record to the learned Court below along with a copy of this judgment.
JUDGE Alam