Gauhati High Court
Rajendra Pegu vs The State Of Assam on 1 September, 2022
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
Page No.# 1/13
GAHC010128132017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/29/2017
RAJENDRA PEGU
VERSUS
THE STATE OF ASSAM
2:SRI UMA KT. DOLEY
S/O-BIRESWAR DOLEY
VILL-BHITOR BAULIGAON
P.S.-SILAPATHAR
DIST.-DHEMAJI
ASSAM
Advocate for the Petitioner : MR.A K GUPTA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
JUDGMENT
Date : 01-09-2022 (Susmita Phukan Khaund, J) Page No.# 2/13 Heard Mr. A.K. Gupta, learned Amicus Curiae appearing on behalf of the appellant. Also heard Ms. S. Jahan, learned Addl. P.P. for the State of Assam.
2. This appeal is preferred seeking defeasance of the Judgment & Order dated 23.03.2004 passed by the Sessions Judge, Dhemaji convicting the accused Rajendra Pegu (hereinafter referred to as the appellant) and sentencing him to undergo Imprisonment for Life under Section 302 of the Indian Penal Code (IPC for short) and to pay a fine of Rs. 1,000/- with default clause.
FACTUAL MATRIX
3. An excerpt of the prosecution case is that in the evening of 16.11.2002 the appellant attacked Bireswar Doley (hereinafter referred to as the deceased) in front of Manthir Pegu's house, causing grievous injuries on his person. Thereafter, the villagers and the family members of the deceased came to the place of occurrence and shifted him to the Dhemaji Civil Hospital, but the deceased succumbed to his injuries in the morning of 17.11.2002.
4. On 17.11.2002, Sri Umakanta Doley, son of deceased lodged an FIR with the police at Sisibargaon Police Outpost under Silapathar P.S. and SBGN O.P GD Entry No. 275 dated 17.11.2002 was registered and the FIR was forwarded to Silapathar P.S. and registered as Silapathar P.S. Case No. 146/2002 under Section 302 of IPC. The Investigating Officer (I/O in short) embarked upon the investigation. The body of the deceased was forwarded for autopsy. The appellant surrendered at Dhemaji P.S. On completion of investigation charge- sheet was laid against the convict appellant under Section 302 of IPC and the case was committed to the Sessions Judge, Dhemaji for trial.
5. At the commencement of trial, a formal charge under Section 302 of IPC was framed and read over and explained to the appellant who adjured his guilt and claimed his innocence.
6. To substantiate its stance, the prosecution adduced the evidence of 13 witnesses and the appellant adduced the evidence of 2 witnesses including himself. Both the parties cross- examined the witnesses. On the incriminating circumstances arising against him the answers of the appellant to the questions under Section 313 of the Code of Criminal Procedure (Cr.PC for short) depicts a plea of total denial.
Page No.# 3/13 SUBMISSIONS
7. The learned counsel for the appellant, Sri A.K. Gupta (Amicus Curiae) laid stress in his argument that this case rests on the plank of confession of the appellant, leading to recovery of the weapon of offence. The circumstances does not form a complete chain and the sole circumstance of confession to the police cannot be used to saddle the appellant with such a serious offence.
8. On the contrary the learned Addl. P.P., S. Jahan has submitted that the appellant surrendered before the police along with the weapon of offence. He was also last seen at the place of occurrence. These circumstances reveal that the appellant is complicit.
CONSIDERATION OF SUBMISSIONS
9. To decide this case in its proper perspective, it is necessary to advert to the evidence. PW-1, informant is the son of the deceased. He has mentioned in the FIR that on 16.11.2002 at about 7 P.M. Manthir Pegu's wife raised alarm and she came and called him. He immediately went and found his father in a moribund state in front of Manthir Pegu's house. Manthir Pegu's wife (PW-8) also informed him that the appellant fled from the place of occurrence after assaulting his (PW-1's) father (deceased). Immediately they took the deceased to Dhemaji Civil Hospital but unfortunately the deceased succumbed to his injuries on 17.11.2002 at 6 hours. The FIR was marked as Exibit-1.
10. The informant PW-1 has testified that on 16.11.2002 at about 7 P.M., while he was at home, he heard a commotion emanating from the area near Manthir Pegu's house. He immediately rushed to the spot followed by his siblings. The family members of Manthir Pegu informed him that the appellant attacked his father and escaped. He found his father lying unconscious in Manthir Pegu's courtyard and he noticed blood oozing out from his father's nose and ear. The villagers gathered and he took his father to the Dhemaji Civil Hospital but finally his father expired in the next morning at about 6:30 A.M. His father was unable to give any statement before his death. PW1 has proved the FIR as Exhibit-1.
11. Manthir Pegu's wife Smt. Padmeswari Pegu, PW-8 has testified that the appellant is her nephew (brother-in-law's son). The deceased is known to her. The incident occurred at night and the place of occurrence was about 200 meters away from her house. While she was Page No.# 4/13 sleeping, she heard her daughter-in-law Sharmita screaming, and she went out towards the particular place from where the commotion was emanating. She saw Purnima, who told her that her husband (Purnima's husband) had killed the deceased and fled. Thereafter they carried the deceased (Bireswar) and called his wife. Meanwhile the villagers assembled and they took the deceased to the hospital.
12. Purnima is the appellant's wife and she was not examined as a witness. The evidence of PW-8 has not substantiated the evidence of PW-1. She has not supported the testimony of PW-1 that she raised alarm and then PW-1 came and she informed him that the appellant killed his father and she saw the appellant escaping from the place of occurrence. PW-8's evidence depicts that Purnima informed her about the incident. Purnima is the appellant's wife. PW-8 did not witness the appellant escaping after assaulting the deceased. The last seen theory remains unsubstantiated. PW-8's evidence depicts that she heard about the incident from Purnima. The irony is that Purnima is the appellant's wife and she was not examined as a witness. PW-1 may have heard about the incident from Manthir's family members, but there is no evidence that Manthir's family members or wife saw the appellant running away from the place of occurrence. Even if the evidence of PW-4 is taken into consideration, the last seen theory does not hold good.
13. Smt. Pachi Doley is the wife of the deceased. She has testified as PW-4 that the incident occurred one night, in the Assamese month of Aghun (November/December). While she was serving food to her children, she heard the appellant calling her husband. When her husband responded, her (PW-4's) neighbour 'Hero' asked her husband (deceased) not to create any trouble. Her husband who was returning, after fishing, reached in front of Manthir Pegu's house and at that time she heard a commotion and rushed to the spot. She found her husband lying in an injured condition in Manthir Pegu's courtyard and blood was oozing out from his nose and ears. Manthir's wife Padmeswari (PW-8) told her that the appellant Dissi had assaulted her husband (deceased). She did not see the appellant in the place of occurrence and she confronted Manthir's family members, accusing them of assaulting her husband but they vehemently denied and they informed her that Dissi had assaulted her husband (deceased).
14. No contradiction could be elicited through the cross-examination of PW-4. On the Page No.# 5/13 contrary PW-8's evidence depicts that she was not even certain, if the appellant killed her husband (deceased). Initially she confronted Manthir's family members for her husband's death.
15. The learned Addl. P.P. has emphasised on the evidence of Sri Girin Pegu who testified as PW-11 that the incident occurred about a year ago. He reached home at night and after dinner he went out to the field. The appellant was fishing in another spot and was chasing away a cat. The deceased asked the appellant not to kill the cat and after that he heard the deceased Bireswar crying "I am dying". He heard the cries from the direction of Manthir Pegu's house and he saw the appellant running away.
16. The evidence depicts that the appellant is also referred to as Dissi. PW-11 further testified that Manthir Pegu's wife Padmeswari shouted that Dissi assaulted the deceased and then he "PW-11" went there and saw the deceased lying in the courtyard of Manthir's house. He noticed blood oozing out from ears, nose and mouth of the deceased. The deceased was unable to speak. They (including PW-11) took the deceased to Dhemaji Civil Hospital. He heard that the deceased passed away in the morning. He went to the hospital. The police also came to the hospital. Inquest was held in his presence and he identified his signature Exhibit-2(2) on the inquest report.
17. It has to be presumed that PW-11 saw the appellant running away from the place of occurrence. On presumption, the appellant cannot be held to be last seen in the place of occurrence immediately after the incident. PW-11 heard about the incident from PW-8, who learnt about the incident from Purnima. Both PW-4 and PW-11 have stated about a conversation between the appellant and the deceased before the deceased was found killed, PW-4 heard the appellant calling her husband (deceased). Her husband responded when PW- 4 called him. PW-11 also stated that immediately before the incident, the deceased asked the appellant not to kill the cat and thereafter he heard the deceased crying "I am dying". These cries were heard from Manthir Pegu's house. Then PW-11 saw the appellant running away and PW-8 told him that the appellant assaulted the deceased. PW-11 has not specifically mentioned the place from where the appellant was seen running away. It has already been held in our foregoing discussions that the last seen theory does not hold good because the witnesses PW-1, PW-4 and PW-11 have heard from PW-8 that the appellant killed the Page No.# 6/13 deceased whilst PW-8 stated that Purnima (appellant's wife) told her that the appellant killed the deceased. As Purnima is the appellant's wife she was not examined as a witness by the I.O. Non-examination of Purnima as a witness snaps the link and the chain of circumstances is not complete.
18. The evidence of PW-8 and PW-11 is not substantiated by the evidence of Smt. Sharmita Pegu who has testified as PW-9 that the incident occurred at night, in the month of Kati (November). While she was lying on the bed, she heard some shrieks and she, followed by her mother-in-law (PW-8) rushed towards the commotion. The incident took place on the road, near her house and she saw the deceased lying there. She raised alarm. She did not know who assaulted the deceased. A lathi was shown to her by the police.
19. A careful scrutiny of the evidence depicts that, although it appears that PW-9 met the deceased immediately after the incident, yet her evidence does not transpire the sequel of events. The circumstances does not form a complete chain.
20. The evidence of other witnesses does not at all implicate that the appellant is complicit. Sri Khageswar Pegu has testified as PW-2 that the incident took place at around 7 P.M. on 16.11.2002. He learnt from the villagers that the appellant killed his brother-in-law Bireswar Doley and so he rushed towards Manthir Pegu's house but did not find the deceased. Then he went to the deceased's house and he noticed injuries on his head.
21. In sync with the evidence of PW-2, Sri Bipin Chandra Doley has testified as PW3 that on the night of 16.11.2002, Tileswar Pegu came and informed him that the appellant killed his brother (deceased). He went to his brother's house and thereafter to the hospital. His brother died at about 6 A.M. in the following morning and his nephew lodged the ejhar (FIR). The police held inquest in his presence.
22. This witness proved his signature on the inquest report as Exhibit-2(1). It is amply clear that the evidence of PW-2 is hearsay evidence, as Tileswar Pegu was not examined as a witness.
23. The evidence of PW-5, Sri Indeswar Sangma and PW-6, Sri Manik Ch. Saikia does not at all implicate that the appellant is complicit. Their evidence depicts that when they went to the police station, they were informed that the appellant had surrendered and they were Page No.# 7/13 asked to affix their signatures, which they did.
24. Suren Pegu who testified as PW-7 has denied any knowledge about the incident. These witnesses were not cross-examined by the defence.
25. PW-10, Hembilas Upadhaya was present when the weapon of offence was recovered. He has testified that the police took the appellant to the place of occurrence, i.e. the courtyard of Manthir Pegu's house. The police also took him (PW-10) along with them. The courtyard was searched and the police found a lathi near Manthir Pegu's granary. When asked, the appellant admitted that he had killed the deceased with that lathi which was 2 feet and 8 inches long. The lathi was measured by the police and the diameter was 4 inches. He identified the lathi as material Exhibit-1 and the seizure list through which the lathi was seized as Exhibit-3. He has put his signature as Exhibit 3(2).
26. In cross-examination PW-10 has admitted that the lathi was also recovered in presence of Susan Pegu, whom he had called to the place of occurrence. He has admitted that the lathi was lying in the ground under the granary and was visible to all. In his cross-examination he has also testified that the granary was adjacent to the road through which people commute. He did not witness the appellant producing the lathi, but the lathi was already with the police.
27. The learned Trial Court convicted the appellant on the basis of his confession leading to the recovery of the lathi. The I.O. Sri Lambit Gogoi testified as PW-13 that on 17.11.2002 the appellant Rajendra Pegu surrendered at Dhemaji P.S. The appellant confessed that he had killed the deceased and he agreed to produce the lathi, with which he had killed the deceased. He recorded the statement of the appellant which is marked as Exhibit-5. He (P-
13) has identified the signature of the appellant as Exhibit-5(1) and 5(2). He has proved his signature as Exhibit-5(5). He has proved the seizure list through which he seized the lathi from the compound of Manthir Pegu's house. Exhibit-3 is the seizure list and he has affixed his signature on the seizure list as Exhibit-3(4). He has identified the signature of the appellant on the seizure list as Exhibit-3(5).
28. The appellant has testified as DW-1 and he has denied that Exhibit-3(5) is his signature. He also denied his signatures marked as Exhibit-5(1) and 5(2) on his statement leading to the recovery of the lathi. The appellant has also stated that on 17.11.2002 at about Page No.# 8/13 9 A.M., Priyo Pegu (DW-2), Bishnuram, Raju Pegu, Dulal Kumbang and Bhaguram Das brought him out of his house and handed him over to the police on suspicion of killing the deceased. They accosted him and threatened him and then handed him over to the police. The police arrived from Sisibargaon Police Outpost and took him along with them from Dhemaji P.S. He has also denied that he has surrendered before the police. He has denied leading to the discovery of the lathi, which is the alleged weapon of offence in this case.
29. The appellant's evidence is substantiated by the evidence of Priyanath Pegu, DW-2 who has testified that after the death of Bireswar Doley, he (DW-2) accompanied by Bishnu, Dulal and others brought the appellant and handed him over to the police at Dhemaji police station.
30. Although the Trial Court has discussed in depth about the seizure of the weapon of offence as led by the appellant, yet the statement of the appellant leading to the discovery of the weapon of offence has not been proved by the witnesses who according to the I/O (PW-
13) were present when the accused recovered the lathi. I/O's evidence depicts that Indreswar Changmai, PW-5 and Manik Saikia, PW-6 were present when the appellant recovered the lathi lying under the granary of Manthir's house. They have not stated that they were present when the appellant recovered the lathi.
31. The Trial Court relied on the statement of the appellant to the police, to convict the appellant resorting to Section 27 of the Indian Evidence Act, 1872 (the Evidence Act for short). The Trial Court went to the extent of discussing that the statement of the appellant Exhibit-5 clearly depicts that he attacked the deceased with a lathi over his head and made good his escape. Then this confessional statement to the police was discussed along with the evidence of the Medical Officer Dr. Buragohain, PW-12 by the Trial Court. It was held by the Trial Court that the injury detected by PW-12 speaks of head injury of the deceased caused by blunt object and the confessional statement of the appellant to the police, corroborates the evidence of Dr. Buragohain as well as the evidence of other witnesses. The confessional statement of the appellant to the police was thus stretched and used as corroborating evidence to fasten the guilt on the appellant.
32. It is true that Section 27 of the Evidence Act is an exception to Sections 25 and 26 of Page No.# 9/13 the Act and the confessional statement recorded by Police Officer can be accepted as evidence to the extent which relates distinctly to the extent of discovery of fact in consequence of an information received from the accused.
33. In the instant case the statement of the appellant was used in an omnibus manner. It is true that on performing post-mortem examination PW-12 detected the injury No. 2 - which is blood clot found under scalp over left parietal bone;
Injury No. 3 - depressed fracture of the left parietal bone found; Injury No. 4 - intracranial blood clots over whole brain.
The opinion of the Medical Officer (PW-12) reveals that the cause of death is intracranial haemorrhage. He has proved the autopsy report as Exhibit-4.
34. There is no denying that the deceased passed away in the morning of 17.11.2002 due to the injuries sustained by him but the statement of the appellant which also includes his statement leading to the discovery of the weapon of offence cannot be used in an omnibus manner to be corroborated by the statement of the Medical Officer (PW-12). A statement which is not related to the recovery of an article is not admissible under Section 27 of the Evidence Act. The scope and ambit of Section 27 of the Act were stated in Phulukuri Kottaya v. Emperor, AIR (1947) PC 67, which have become locus classicus, in the following words:
"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' " these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
Page No.# 10/13
35. It has been held by the High Court of Tripura, Agartala in Criminal Appeal (J) No. 55 of 2020 and decided on 22.06.2022 by relying on the decision of Dabu Munda v. State of Tripura, reported in 1991 GLR 293, that - "In view of the above principles, as enunciated by the Gauhati High Court, we find force in the submissions of Mr. A. Acharjee, learned counsel appearing for the appellant except the fact which is revealed by the accused in the custody about the discovery, no other fact relating to acceptance of guilt, close to confession, cannot be treated as the legal evidence under Section 27 of the Evidence Act."
36. It has been observed in Dabu Munda's case(supra) that -
"9. The learned trial court has placed reliance upon the statement said to have been made by the accused appellant to the Investigating Officer, which has led to the recovery of the dead body. The learned counsel for the appellant has submitted that no such statement was made by the appellant. We had carefully considered the evidence and in our opinion the learned trial court was in error in having placed reliance upon the part of the statement under Section 161 of the code recorded by the deceased Sl. R.K. Datta marked Ext.P/10. It is settled law that only that much of the statement made by an accused in custody during investigation to the police is admissible as leads to the recovery of some articles or things. Any other part of the statement which is not related with the recovery of articles is not admissible under Section 27 of the Indian Evidence Act......".
37. In view of the foregoing discussions, it is held that in the instant case the evidence on record was grossly inadequate to convict the appellant by resorting to his statement under Section 25 of the Evidence Act, which he has denied of making before the I.O. while he was in police custody. The Trial Court also relied on the confession by the appellant qua Section 25 of the Evidence Act. Another injury which was detected on post-mortem examination was a cut injury found over the back of the right leg 2 inches below the knee joint of size 2 inches X 1 inch x ½ inch. Direction - horizontal. There is no explanation how the deceased sustained this cut injury. The weapon of offence allegedly recovered was a wooden lathi. The other inconsistency in the recovery of the weapon of offence is that the lathi was found lying in the open, near the granary which was not even fenced. This has been admitted by the PW-3 in Page No.# 11/13 his cross-examination that there was no fence between the granary of Manthir Pegu's house and the road abutting the granary. It could be deciphered from the evidence that the place of occurrence is near Manthir's house. The granary of his house is not fenced.
38. It has also been observed in Pulukuri Kottaya's case (supra) that information relating to the discovery of a fact does not form the foundation of a prosecution case. It is only one link in the chain of proof, and the other links must be forged in the manner allowed by law.
39. Scanning the entire evidence, it is held that each of the circumstances were not proved. The circumstances are not linked and does not form a complete chain.
40. In an illuminating judgment in Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622, while dealing with the circumstantial evidence, the Hon'ble Supreme Court has held that :- " The onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are :-
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
41. Reverting back to the case in hand, it is held that the circumstances does not form a complete chain. The accused was last seen running away by PW-11, who did not even mention from which place he was seen running away. Accused was not last seen with the deceased. The disclosure statement is not proved concussively and so is the conduct of the Page No.# 12/13 accused after the incident.
42. The Trial Court also heavily relied on the conduct of the appellant after the incident as one more circumstance against the accused. The appellant has however denied that he surrendered before the Dhemaji Police. The Trial Court relied on the evidence of PW-5 and PW-6 and arrived at a decision that the appellant surrendered before the Dhemaji police. A careful scrutiny of the evidence of PW-5 and PW-6 depicts that they were told that the appellant surrendered before the police. They were informed in the police station that the appellant killed a person and surrendered before the police. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same by itself cannot be a ground to convict him or hold him guilty for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the Court may take into consideration along with the other evidence on record, direct or indirect. The conduct of the appellant in this case, although relevant cannot form the basis of conviction, that too when the appellant as DW-1 has denied that he surrendered before the police. The DW-2 has also stated that he had taken the appellant to the police station after the incident.
43. It is trite law that defence evidence can be considered on preponderance of probabilities. It is also apt to reiterate that not a single prosecution witness has affirmed that the appellant has surrendered before the police. PW-5 and PW-6 heard in the police station (outpost) that the appellant surrendered at the station. We are constrained to hold that each of the circumstances, in itself were not proved.
44. In the ultimate analysis, we have reached to the conclusion that the Trial Court has erred. The evidence on record was inadequate to convict the appellant. The appeal succeeds. The impugned order of conviction of the appellant and the sentence passed against him by the judgment and order is hereby set aside. The appellant is held not guilty of the offence of which his stands convicted for. Accordingly, the appellant is set at liberty. The surety also stands discharged.
45. We have noted that while convicting the appellant, which we have set aside by this order, the learned Trial Court did not pass any order for payment of compensation to the Page No.# 13/13 victim or his dependents as contemplated under Section 357A of the Cr.P.C. We have been also informed that there is a scheme prepared by the State of Assam under sub-section 9 of Clause 5 of the Assam Victim Compensation Scheme, 2012 as notified on 05.03.2016, which has also been revised on 01.02.2019 if that is so, let the State verify if the deceased had left any dependent or legal heir and if so, let the compensation fixed by the State in terms of the aforesaid notification dated 01.02.2019 be paid to the dependent(s) or legal heirs of the victim after making necessary verification. The aforesaid exercise will be carried out in association with the Dhemaji District Legal Services Authority at the earliest and preferably within a period of 3(three) months from the date of receipt of a copy of this order. A copy of this order be furnished to the Member Secretary, Assam State Legal Services Authority as well as the Secretary, Dhemaji District Legal Services Authority to assist the State authorities in this regard.
46. LCR be sent back forthwith to the concerned Court.
47. Mr. A.K. Gupta, learned amicus curiae, who has ably assisted this Court in conducting this appeal, may be paid the honorarium at the rate fixed as per rules.
JUDGE JUDGE Comparing Assistant