Gauhati High Court
Crl.A./304/2018 on 5 March, 2020
Author: Hitesh Kr. Sarma
Bench: Suman Shyam, Hitesh Kumar Sarma
Page No.# 1/11
GAHC010178072018
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL
PRADESH)
Criminal Appeal 304/2018
Sri Titul Baruah @ Akanijan,
S/O Late Arun Baruah,
Resident Of Village Lengibor No. 5 Bakupukhuri,
PS Mathurapur, Dist Sivasagar, Assam
.................. Appellant
-Vs-
1. The State of Assam
Represented by Public Prosecutor, Assam
2. Sri Nilakantha Bora
S/O Late Siba Nath Bora
R/O Village B. No. 5 Bakupukhuri,
PS Mathurapur, Dist Sivasagar, Assam
...................Respondents
Advocate for the Appellant
Mr. MK Das, learned counsel
Advocate for the State Respondent
Mr. RJ Baruah, learned Additional Public Prosecutor .
Date of hearing and Judgment: 5th of March, 2020.
Page No.# 2/11
BEFORE
HON'BLE MR. JUSTICE SUMAN SHYAM
HON'BLE MR. JUSTICE HITESH KUMAR SARMA
JUDGMENT AND ORDER (ORAL)
(Hitesh Kr. Sarma, J.) This is an appeal against the judgment and order, dated 23.04.2018, passed by the learned Additional Sessions Judge, Sivasagar in Sessions Case No. 48(S-C)/2010, convicting the appellant and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 30,000/- under Section 302 of the IPC, in default of payment of fine, rigorous imprisonment for 6 (six) months.
2. The case for the prosecution is that the accused-appellant, Akanijan @ Titul Baruah, at about 9:00 pm on 13.01.2010, went to the residence of the victim, Purnima Hatimuria (mother-in-law of the informant/PW1), and banged on the doors and windows of her house to which the victim/Purnima did not respond. The domestic help of Purnima, namely, Puja Garh/PW2 had seen through the hole of the window that the appellant Titul was banging on the doors and the windows. Thereafter, the victim went out in search of the thief who had stolen away some of her chickens. Then, the appellant had hacked the victim Purnima with a machete on her head, face and hand ultimately, resulting in her death.
3. On receipt of the FIR, the Mathurapur Police Station registered a case, being No. 08/2010 under Sections 302/34 of the IPC, and investigated into it. After completion of investigation, charge-sheet was laid against the accused-appellant Titul Baruah and another namely, Papu Gogoi under Sections 302/34 of the IPC. Accused Papu Gogoi was sent to the Juvenile Justice Board, Sivasagar as he was found to be a juvenile-in-conflict with law. A Page No.# 3/11 formal charge under Section 302 of the IPC was framed against the appellant Titul Baruah to which he pleaded innocence. Hence, the trial.
4. In this case, prosecution examined as many as 14 (fourteen) witnesses and the defence examined none. The appellant denied the incriminating circumstances put to him in his statement recorded under Section 313 of the Cr.PC. On conclusion of the trial, the accused-appellant was convicted and sentenced as indicated above.
5. We have scanned the evidence and the impugned judgment. We have also heard Mr. MK Das, learned counsel for the appellant and Mr. RJ Baruah, learned Additional Public Prosecutor for the state respondent.
6. On examination of the evidence on record, we find that the PW1, Nilakantha Bora, is the son-in-law of the victim Purnima. He is also the informant of the case. The PW2, Puja Garh, is a 12 years old girl used to stay with the victim since her childhood. She has been projected by the prosecution as an eye-witness to the occurrence. PW3, Smti. Dipali Gogoi, is a neighbour as well as relative of the victim. Immediately after the occurrence she had appeared at the place of occurrence with PW2. The PW10 is one of the daughters of the deceased who was informed over phone about the occurrence by Barnali Bordoloi (not examined by prosecution as witness). On arrival of PW10 at the place of occurrence, the PW2 had informed her that the appellant had cut her mother, Prunima. The PW14 is the Investigating Police Officer. He had investigated the case and had also recorded the statements of the witnesses. He had also seized the weapon of offence in presence of PWs 12 and 13. The evidence of these witnesses would be discussed in detail at an appropriate stage.
Page No.# 4/11
7. PW6 is the autopsy doctor who had performed the post-mortem examination of the dead body of the victim. The relevant part of the finding recorded by PW6 in his report, Ext. 3 are as follows:-
"II- Cranium and Spinal Canal:
Sl. No. Particulars Remarks
1 Scalp, skull, vertebae Sharp cut injury over skull on the left side of the
head size 6 inch x ¼ inch x 2 inch
Maxilla is cut length 3 inch, depth 2 inch and
breath ½ inch
3 cut marks behind and below left ear 2 inch x ¼
inch x 1 inch, 2 inch x 1/3rd inch x ½ inch and 2
inch x ¼ inch x ½ inch
2 Membrane Membrane is cut size inch, brain matter is seen
from outside
3 Brain and spinal cord Bleeding over left temporal side present and cloth
is found inside temporal lobe
More detailed description of injury or disease:
Post mortem done over a female body with rigor mortis present age approx 47 years, found injury over skull, 3 injury below left ear, 1 above ear in the left temporal region, temporal bone is cut and brain matter is seen from outside, cloth seen inside temporal lobe of the brain. Injury over left maxilla there is a cut injury and size mentioned, injury over right wrist joint which is cut completely except skin over medial side present. Also 2 cut marks over lateral side as described. All the findings are ante mortem in nature".
In his opinion, the death was due to shock following haemorrhage due to injuries sustained.
8. PWs 4, 5, 7, 8, 9 and 11 are not very relevant for the prosecution as they have not implicated the appellant with the commission of the alleged offence. They had appeared at the place of occurrence at a later stage.
9. During the course of argument, the learned counsel for the appellant, Mr. Das has Page No.# 5/11 canvassed before this court that the prosecution has not been able to prove the charge against the appellant at all. It has further been submitted that there is no eye-witness to the occurrence and that the circumstances of the case also do not connect the appellant with the commission of the crime. The learned counsel for the appellant has specifically referred to the evidence of PWs 1, 2, 3, 10, 12, 13 and 14 and brought to our notice the glaring inconsistencies in their evidence and submitted that their evidence do not constitute a chain of circumstances to take a view that it was none but the appellant who had committed the crime. On the other hand, the learned Additional Public Prosecutor, Mr. Baruah, has submitted that when the PW2 had heard a sound, she went in search of the victim and found her lying at the place of occurrence in an injured state and had also seen the appellant fleeing therefrom. It is the further submission of the learned Additional Public Prosecutor that the Investigating Police Officer had seized the weapon of offence hidden in a nearby vegetable garden of one Probin Gogoi on being led by the appellant. Mr. Baruah further submits that although there is no eye-witness to the occurrence, yet, the above circumstances has established the charge against the appellant, beyond all reasonable doubt.
10. In the light of the above arguments of the respective counsel for the parties, we have scrutinised the evidence on record.
11. The evidence of PW2, Puja Garh shows that she deposed in her examination-in-chief that the incident had taken place on the day of Uruka of Magh Bihu. While she was sleeping, she heard the appellant calling the victim from backside of her house stating that he had brought wine, bhujia and peanuts to which she had asked the appellant to come next morning as she was suffering from toothache. However, the appellant continued to bang on the doors and windows of the house of the victim. The appellant had taken away a hen from Page No.# 6/11 the house of the victim. The victim had approached Hema Gogoi (husband of PW3) and had also informed him about the incident. But, from the evidence of PW3, Smti. Dipali Gogoi, who is the wife of Sri Hema Gogoi, it appears that at the relevant point of time, Hema Gogoi was at Bangalore. Therefore, on the basis of the evidence of PW3, it cannot be believed that the victim had informed Hema Gogoi about stealing of a hen by the appellant. However, from the evidence of PW3, it appears that the victim had informed her that the appellant had stolen away hens from her house for the second time. The PW2 also deposed that after coming to know about stealing of the hens, PW3 advised the victim to keep the hens inside her house. At that point of time, the victim went in search of the appellant. She had taken the torch light of PW3. The PW2 also deposed that while herself and PW3 were keeping the hens inside the house, they had heard a sound of hacking. Then the PWs 2 and 3 went out to see as to what had happened and found the victim lying on the road with cut injuries. In the glow of light, they had seen the appellant running away after hacking the victim. The evidence of PW3 reveals that after about one and a half hours, she and PW3 went in search of the victim as she did not come back till then and found the victim lying in an injured condition at the place of occurrence. The evidence of PW2 that on the glow of light she had seen the appellant fleeing away from the place of occurrence after hacking the victim is belied by herself as she deposed in her cross-examination that due to fog people could not be recognised at the time of occurrence. The evidence of the PW2 also reveals that she and PW3 did not see any person at the scene of occurrence meaning thereby that they did not see the appellant also fleeing away. She has also admitted in her evidence that they went out in the dark in search of the victim and due to the fog, they did not see any people on the road. It has also come out from her evidence that there was another boy with the appellant since before the time of Page No.# 7/11 occurrence. In her cross-examination, she is very specific that she did not witness the occurrence, but at the same time, we have noticed that she had stated, in her cross- examination, that she had seen the appellant hacking the victim.
12. This PW2 has also given her statement under Section 164 of the Cr.PC before the Magistrate which the prosecution has not introduced in evidence. From the cross-examination of the PW2, in respect of her statement under Section 164 of the Cr.PC, it appears that she did not implicate the appellant as the person hacking the victim to death. The PW2 is a child witness of 12 years of age. She has given different versions in her examination-in-chief, in her cross-examination and also in her statement recorded under Section 164 of the Cr.PC as admitted by her.
13. In so far as acceptability of the evidence of a child witness is concerned, the Hon'ble Supreme Court in the case of Nivrutti Pandurang Kokate vs. State of Maharashtra, reported in (2008) 12 SCC 565 held, in para 10, as follows:-
"10. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court Page No.# 8/11 comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
14. The different versions of the PW2, as indicated above, varies from one to the other to such an extent that it is unsafe to place reliance on her evidence. We feel it necessary to record that the PW2 once deposed that she had seen the appellant fleeing from the scene of occurrence although in her cross-examination she deposed that she had seen the appellant hacking the victim. It has also come out from her evidence that the statement given by her before the Magistrate under Section 164 of the Cr.PC, she did not state that she had seen the appellant hacking the victim or fleeing away from the place of occurrence. Therefore, it is difficult to hold the evidence of this witness acceptable due to variations of her version.
15. The evidence of PW3 shows that there was no street light and due to fog even the nearby people were hardly visible in the night of occurrence. Her further evidence is that even in the light it was difficult to recognise people due to dense fog at the relevant time of occurrence. Her further evidence is that if there were lights, it was still difficult to recognise people. According to PW3, while herself and PW2 arrived at the place of occurrence, she was told by the victim that the appellant had hacked her which was also heard by PW2. Such evidence of PW3 means that the victim had made a dying declaration before her to the hearing of the PW2. But, the PW2 has not deposed anything in her evidence about such dying declaration and as such same has not corroborated. The alleged dying declaration has been brought on record for the first time and even the Investigating Police Officer (PW14) has not whispered about such facts. Therefore, the dying declaration said to have been made by the victim has not been proved.
16. The evidence of PW10, one of the daughters of the victim, is to the effect that while Page No.# 9/11 she had come to the place of occurrence, her mother (victim) was still alive but not in a position to speak.
17. We have also noticed from the evidence of PW1 (informant) that he was told by the PW2 that she had identified the appellant but could not recognise two of his companions who went to the house of the victim. Such evidence amply suggest that at the relevant time of occurrence or immediately before that, there were two other persons apart from the appellant. The PW1 also deposed that nothing was visible at the place of occurrence as there was no light and there was dense fog.
18. Therefore, from such evidence of PWs 1, 2 and 3, it does not appear that any one of them had, in fact, seen the appellant hacking the victim or fleeing away from the scene of occurrence. We have already disbelieved the evidence of PW2. Therefore, the argument of the learned Additional Public Prosecutor in respect of one of the circumstances, i.e., PW2 witnessing the appellant fleeing from the scene of occurrence, fails.
19. We have also noticed that the appellant had allegedly stolen hens from the house of the victim for the 2nd time immediately before the occurrence. Thereafter, while the PWs2 and 3 were putting the hens inside her house, the victim went in search of the theif and when she did not come back for about one and a half hours, the PW2 went in search of the victim alongwith PW3 and found her lying in an injured state. Such evidence shows that the victim sustained injuries before their arrival at the scene of occurrence and during the one and a half hours time since she had left. Therefore, it appears that who had caused injuries on her person was not known to PWs 2 and 3 or to any of other witnesses. The possibility of some other person hacking the injured cannot be ruled out in view of the time gap of one Page No.# 10/11 and a half hours in between her leaving the house in search of the 'thief and detecting her in an injured state at the place of occurrence.
20. The prosecution has also stressed on the fact that the weapon of offence was seized from the vegetable garden of one Probin Gogoi on being led by the accused persons. From the evidence of the Investigating Police Officer (PW14), it does not appear as to which of the accused persons had led him to the discovery of the weapon of offence. We have already found that one of the companion of the appellant was referred to Juvenile Justice Board being a juvenile-in-conflict with law. The Investigating Police Officer (PW14) deposed that he had caught both of them and 'they' had shown in the weapon of offence which he had seized vide Ext. 4 in presence of witnesses. However, there is no disclosure statement of the appellant brought on record by the prosecution. That apart, the evidence of the Investigating Police Officer shows that the accused persons had shown him the weapon of offence at the vegetable garden of one Probin Gogoi. This Probin Gogoi has not been examined by the prosecution as witness. On the other hand, the PW12, who is a witness to the seizure deposed that she did not see the seized weapon in the court. The PW13, another witness to the seizure of the weapon of offence, categorically deposed that the police seized a 'Kalam Katari' vide Ext. 4, which she had exhibited in the court vide M.Ext. 1. But, in her cross- examination, she deposed that police had asked them to show the knifes and they had shown various types of knifes to the police and the police had seized one of them. Such evidence means that the police did not seize the weapon offence vide Ext. 4 as shown by the appellant from the vegetable garden of Probin Gogoi. Therefore, the discovery of the weapon of offence, on being led by the appellant or his companion, is also found to be not proved due to inconsistencies of the evidence of seizure witnesses and the Investigating Police Officer Page No.# 11/11 (PW14) himself. Therefore, the remaining circumstance regarding seizure of the weapon of offence, as pointed by the learned Additional Public Prosecutor, also could not be proved by the prosecution.
21. In view of the above, it appears that the prosecution has not been able to bring home the circumstances constituting a chain unerringly pointing only to the guilt of the appellant. Therefore, not only is there absence of direct evidence, there is also no circumstantial evidence to prove the charge against the appellant beyond all reasonable doubt. Therefore, he deserves acquittal on benefit of doubt.
22. Accordingly, the appeal is allowed.
23. The accused-appellant be set at liberty forthwith.
24. Issue release order accordingly.
25. Send down the LCR along with a copy of this judgment.
26. Also send a copy of the judgment to the Superintendent of concerned Jail.
JUDGE JUDGE Comparing Assistant