Gauhati High Court
Shyamal Das vs The State Of Assam on 3 February, 2017
Equivalent citations: 2017 CRI. L. J. 3135, (2017) 172 ALLINDCAS 623 (GAU) (2017) 4 GLR (NOC) 4, (2017) 4 GLR (NOC) 4
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, ARUNACHAL PRADESH AND MIZORAM)
Criminal Appeal No. 108(J) of 2013
Appellant/Accused .... Shyamal Das
Respondents .... The State of Assam
BEFORE HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA For the Appellant/Accused ... Ms. A. Verma, learned Amicus Curiae For the Respondents ... Mr. K Konwar, learned Additional Public Prosecutor, Date of hearing & Judgment ... 03.02.2017 JUDGMENT AND ORDER (Ajit Singh, C.J.) Appellant Shyamal Das has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/- with default stipulation.
2. The victim of incident was Sunarton, aged about 27 years.
3. According to the prosecution case, appellant and Sunarton were good friends and lived in the same locality at Kathal Road falling within the jurisdiction of Police Station Silchar, Cachar. They were also rickshaw pullers by profession and after day's work, they usually used to spend time together along with two co-accused persons - Satish and Sundar, who were also rickshaw pullers and lived nearby. On the night of 9.8.2007, around 10 p.m., appellant, Satish and Sundar, as usual, went to the house of Sunarton and called him. Sunarton then left with them to spend time and did not return during the night. His father Monoranjan Roy (PW-1) naturally got worried and searched for Sunarton, but could Page 1 of 6 not find him. On the following morning, Monoranjan was informed by some boys that injured body of Sunarton was lying in a field near Kathal Road. Monoranjan, in turn, informed his brothers - Satya Ranjan Roy (PW-2) and Subhodhar Roy (PW-4) whereafter, all of them rushed to the place of occurrence. There they found Sunarton lying dead with multiple injuries. Satya Ranjan telephonically informed the police of Rangirkhari Police Out-Post. At that time, Subrata Purkayastha (PW-6) was In-charge of Police Out-Post. On receiving the information, he went to the place of occurrence with his staff and prepared inquest report exhibit 1 of the dead body. He also seized certain articles vide seizure list exhibit 3 and sent the dead body for post mortem examination.
4. Dr. BC Roy Medhi (PW-5) conducted the post mortem examination on the dead body of Sunarton. He found as many as five stab wounds on different parts of the body and also one cut injury on the neck. The doctor, in his post mortem examination report exhibit 4, opined that Sunarton died due to stab injuries, which were ante mortem in nature and caused by sharp cutting weapon. After the post mortem examination was conducted, Monoranjan (father) made ejahar exhibit 2 on 11.8.2007 at Police Outpost Rangirkhari, which was later registered as First Information Report. In the ejahar, he mentioned the names of appellant, Satish and Sundar as the possible assailants of Sunarton.
5. The appellant surrendered before Police on 10.3.2008. Likewise, Satish and Sundar also surrendered. But, during the trial, after framing of charge, Sundar and Satish absconded. In the result, the trial of appellant was separated and relying upon the evidence adduced by the prosecution, the trial court convicted and sentenced him, as aforesaid. The appellant, in his defence, had pleaded false implication.
6. It is argued on behalf of the appellant that the trial court, in the absence of any reliable and cogent evidence, committed an illegality in convicting the appellant. The learned Additional Public Prosecutor, on the Page 2 of 6 other hand, defended the impugned conviction and sentence of appellant.
7. As there is no direct evidence, the entire case of the prosecution is based on circumstantial evidence. The trial court relied upon the following circumstances in convicting the appellant:-
i) On the date of occurrence, at about 11 p.m., the appellant along with Satish and Sundar came to the house of the Sunarton and called him whereafter Sunarton went out with them;
ii) On the date of occurrence, at about 11 p.m., Arjun Suklabaidya met the appellant, Satish and Sundar in the company of Sunarton;
iii) On the date of occurrence, during day time also, the appellant, Satish and Sundar visited the house of Sunarton twice in search of him, but he was not found;
iv) The dead body of Sunarton was found in a paddy field with multiple injuries;
v) That the appellant absconded soon after the death of Sunarton;
vi) That the appellant did not give any explanation of being 'last seen together' with Sunarton.
8. As mentioned above, Monoranjan is father of Sunarton. He has testified that on the date of incident, around 11 in the night, the appellant along with Satish and Sundar came to his house and called Sunarton, whereafter all of them left together. According to him, Sunarton did not return in the night, and on the following morning, around 7 a.m., he was informed by some boys that body of Sunarton was lying in the field. He then rushed to the field, which was at a distance of ½ km from his house, where he saw the dead body of Sunarton with multiple injuries. In the cross examination Manoranjan has candidly Page 3 of 6 admitted that prior to the date of occurrence also, on the calling of appellant and other co-accused persons, Sunarton used to go with them as all of them were rickshaw pullers by profession and had cordial relationship since long. He has thus not attributed any motive against the appellant for causing the death of Sunarton. We however find no reason to disbelieve his evidence that on the night, around 11 p.m., Sunarton had left with appellant and other co-accused persons from his house on their calling and thereafter, he did not return. His this evidence is also corroborated by the evidence of Satya Ranjan and Subhodhar. Both of them have said that Monoranjan did mention about Sunarton leaving the house in the night on being called by appellant and other co-accused persons. But except for this circumstance, there is no other evidence against the appellant to connect him with the death of Sunarton.
9. The next circumstance that on the date of occurrence, the appellant and other co-accused persons visited the house of Sunarton twice in search of him, in our considered view, has really not been proved by the prosecution. We say so because only Subhodhar has testified that on his asking Monoranjan had told him about this fact. But Monoranjan, in his entire evidence, has nowhere stated about such disclosure to Subhodhar. And Subhodhar himself in his police case diary statement did not mention about this fact. The trial court, therefore, committed an illegality in relying upon this circumstance against the appellant.
10. Another circumstance relied upon by the trial court is that Arjun had met the appellant along with other co-accused persons in the company of Sunarton at Kathal Road around 11 p.m. Even this circumstance ought to have been disbelieved by the trial court. It is true that Arjun has testified that around 11 p.m. he met appellant along with other co-accused persons in the company of Sunarton at Kathal Road and on the next morning, dead body of Sunarton was found in a nearby field. But, in the police case diary statement, he did not mention anything about his such meeting with appellant and Sunarton. In the statement he Page 4 of 6 merely said that he saw the appellant and other co-accused persons calling Sunarton from the latter's house. The trial court therefore should have rejected this circumstance against the appellant.
11. The next circumstance against the appellant is that he absconded after the date of occurrence. The record reveals that appellant did abscond and he surrendered after 8 months. It is however well settled that mere abscondance of an accused does not lead to a firm conclusion of his guilty mind, as even an innocent man may abscond in order to evade arrest and such an action may be part of the natural conduct of the accused. (see AIR 2011 SC 200). Thus, the possibility of being falsely framed in connection with the murder of Sunarton compelled the appellant to abscond cannot be ruled out and for this reason alone, he cannot be held guilty.
12. Lastly, it is also true that appellant did not offer any explanation of being 'last seen together' with Sunarton. But again the Supreme Court in Kanhaiya Lal vs. State of Rajasthan, (2014) SCC 715 has held that mere non-explanation of being last seen together with deceased person on the part of accused, by itself cannot lead to proof of guilt against him.
13. From the above discussion, it is clear that the circumstance of 'last seen together' with deceased Sunarton is the singular piece of circumstantial evidence available against the appellant. And, in the case of Kanhaiya Lal (supra), the Supreme Court has held that the circumstance of 'last seen together' does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Therefore, merely because the appellant was last seen with Sunarton and he did not offer any explanation of having been last seen, in our considered opinion, cannot lead to proof of guilt against him. This fact assumes more importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship Page 5 of 6 between the appellant and Sunarton for a long time. Also there is no evidence to show that appellant was seen with Sunarton at or near the place where his body was found.
14. For these reasons, we are unable to sustain the impugned judgment and sentence. The appeal is allowed and the conviction and sentence imposed on the appellant are set aside. He is acquitted of the charge by giving benefit of doubt. He is directed to be released from the custody forthwith, unless otherwise required.
JUDGE CHIEF JUSTICE
skd
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