Gauhati High Court
Sri Abhijit Nandi vs The State Of Assam on 31 July, 2013
Bench: I. A. Ansari, Indira Shah
Page 1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA;
MANIPUR; TRIPURA; MIZOAM & ARUNACHAL PRADESH)
Criminal Appeal No. 73 of 2009
Abhijit Nandy
- Appellant
- Versus -
State of Assam
- Respondent
PRESENT
HON'BLE MR JUSTICE I A ANSARI
HON'BLE DR. (MRS.) JUSTICE INDIRA SHAH
Advocates present:
For the appellant : Mr. P. J. Phukan,
For the Opposite party : Mr. Z. Kamar,
Public Prosecutor,
Assam.
Dates of hearing and judgement : 31.07.2013
JUDGEMENT AND ORDER
(ORAL)
(Ansari, J) By judgment and order, dated 19.12.2008, passed, in Sessions Case No. 140(NL) of 2004, by the learned Sessions Judge, Lakhimpur, the accused-appellant, Abhijit Nandy, stands convicted under Section 302 IPC and sentenced to suffer imprisonment for life and pay fine of Crl. A. 73 of 2009 Page 2 Rs. 5,000/- and, in default of payment of fine, suffer rigorous imprisonment for one year.
2. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus:
(i) Deceased Babu Deka and Montu Deka were both sons of Naren Deka, Babu Deka having married accused Simi Nandy (since acquitted). Accused Simi Nandy used to live with her parents and her brother, Abhijit Nandy, their house being situated barely at a distance of about 16 cubits from the house of Naren Deka. Following marital discord, which surfaced between Babu Deka (since deceased) and accused, Simi Nandy (since acquitted), a criminal case came to be registered involving Babu Deka and his family.
(ii) On 20.11.2002, when Babu Deka and Mantu Deka returned home from work, accused Simi Nandy, accompanied by her mother, accused Parboti Nandy (since acquitted), came to the house of Naren Deka and called both, Babu and Mantu, to her house for sorting out the differences, which had developed between Babu Deka and his wife, accused Simi Nandy. Lured by the offer of settlement, Babu Deka and Mantu Deka went to the house of accused, Sukhlal Nandy alias Anil Nandy (since acquitted), father of accused Simi Nandy. Shortly thereafter, hue and cry were heard emanating from the house of the accused Sukhlal Nandy. Attracted by the hue and cry, so raised, Naren Deka (PW3) went running to the house of accused, Sukhlal Nandy alias Anil Nandy, and, on arriving there, he found both his Crl. A. 73 of 2009 Page 3 sons, Babu and Mantu, lying, smeared in blood, at the courtyard of the house of the accused aforementioned. When Naren Deka raised alarm, his neighbour, Tarun, took him to Khelmati Police Outpost, where Naren Deka informed the police about the occurrence.
(iii) Before, however, reporting of the occurrence by Naren Deka to the police at the said Out Post, accused Sukhlal alias Anil, appeared, on the very night of the occurrence, i.e., 20.11.2002, at about 10.20 PM, at Khelmati Police Out Post and verbally informed the police that, at about 10 PM, on that very day (i.e., 20.11.2002), Babu Deka and his brother, Mantu Deka, had quarreled and fought with Abhijit Nandy, son of Sukhlal alias Anil Nandy, in the courtyard of Sukhlal Nandy's house and Abhijit struck on the heads of both, Mantu Deka and Babu Deka, causing injuries on them, both the injured had fallen down and were lying in his (Sukhlal's) courtyard and that he (accused Sukhlal) was unaware as to whether they were dead or still alive.
(iv) On receiving the information, so given by accused Sukhlal (since acquitted), GD Entry No. 296, dated 20.11.2002 (Ext. 7), was made, at 10.20 PM, at the said police out post, and, suspecting the informant, Sukhlal Nandy, being involved in the occurrence, the police detained accused Sukhlal Nandy (since acquitted) at the said out post and rushed to the house of accused Sukhlal Nandy (since acquitted) and found Babu Deka lying dead in the courtyard of the house of accused Sukhlal Nandy (since acquitted); whereas, accused Mantu Deka, though injured, was still alive. The police, therefore, sent injured Crl. A. 73 of 2009 Page 4 Mantu Deka to the hospital. However, on the way to the hospital, Mantu Deka, too, succumbed to his injuries.
(v) During investigation, police held inquest over the said two dead bodies, which were also subjected to post-mortem examination. This apart, police seized a dao, a spade, a piece of wood, etc., from the place of occurrence.
(vi) On the following day, i.e., 21.11.2002, Naren Deka, father of deceased Babu and Mantu, lodged a written Ejahar, at Khelmati Police Outpost, about the occurrence and, treating the said Ejahar as First Information Report (in short, 'FIR'), North Lakhimpur Police Station Case No. 1318/2002, under Section 302/34 IPC, was registered against 4 (four) accused persons, namely, Abhijit Nandy (i.e., the appellant), his sister, accused Simi Nandy (since acquitted), his father, accused Sukhlal Nandy alias Anil Nandy (since acquitted), and his mother, accused Parboti Nandy (since acquitted). On completion of investigation, police laid charge-sheet, under Sections 302/34 IPC, against all the four accused aforementioned.
3. At the trial, when a charge, under Sections 302 read with Section 34 IPC, was framed against the four accused persons aforementioned, they all pleaded not guilty thereto.
4. In support of their case, prosecution examined altogether 7 (seven) witnesses including the Investigating Officer. All the accused were, then, examined under Section 313 (1) (b) Cr.PC and, in their examinations aforementioned, all the accused denied that they had Crl. A. 73 of 2009 Page 5 committed the offence, which they were alleged to have committed, the case of the defence being that of denial. No evidence was adduced by the defence.
5. Having, however, found accused Sukhlal alias Anil Nandy, his wife, accused Parboti Nandy, and his daughter, accused Simi Nandy, not guilty of the offence, which they had been charged with, learned trial Court acquitted them accordingly; but taking the view that accused Abhijit Nandy had been proved, beyond reasonable doubt, guilty of commission of offence under Section 302 IPC, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, which has been passed against him, accused Abhijit Nandy, as a convicted person, has preferred this appeal.
6. We have heard Mr. P. J. Phukan, learned counsel, appearing for the appellant, and Mr. Z. Kamar, learned Public Prosecutor, Assam.
7. While considering the present appeal, what may be noted is that the fact, that the dead bodies of Babu Deka and Mantu Deka were subjected to post-mortem examination, has not been in dispute at the trial. The doctor (PW1), who had, admittedly, conducted the post- mortem examination, on 21.11.2002, on the dead bodies of Babu Deka and Mantu Deka, has given his findings as follows:-
"Babu Deka:
Scalp would depressed with left side of skull. Extensive injury over the scalp on left side. Fracture of skull on frontal bone. Size - 2"
X 2" X ½ ". All membranes were ruptured. Brain matters came out Crl. A. 73 of 2009 Page 6 through the wound. No abnormality detected on walls, ribs and cartilleges, pleurae, heart vessels, peritoneum, mouth, pharynx, stomach, small intestine, large intestine, liver, spleen, kidneys, and organs of generations. Larynx, trachea, lungs, pericardium congested. Muscles over frontal bone injured and ruptured. Frontal bone fractured.
Detail description: Extensive injury to scalp with fracture of the frontal bone on left side with injury to the membrane and brain matters. Extensive intra-cranial harmorrhage seen.
Mantu Deka:
Condition of the body emaciated. Fracture and lacerated injury over the scalp. Extensive injury over occipital region with fracture of occipital bone. Membranes were injured. Brain matters came out. Thorax, abdomen, liver, spleen, kidneys, etc. - no abnormality detected. Bladder - empty. Fracture of occipital bone. Detail description: Extensive injury to scalp and skull. Size 4" X 3"
X 1". Depressed fracture over occipital bone. Brain matters and memings were injured and extensive intra-cranial haemorrhage seen."
8. In the opinion of the doctor (PW1), the cause of death, in the case of the said two deceased, was shock and haemorrhage, which resulted from the injuries sustained by them. What may, now, be noted is that the findings of the doctor, as regard the injuries found on the said two dead bodies, and the doctor's opinion, with regard to the causes of death, were not disputed at the trial. We, too, notice nothing inherently incorrect or improbable in the findings, given by the doctor, and/or his opinion with regard to the causes of death of the said two deceased.
Crl. A. 73 of 2009 Page 7
9. Bearing in mind, therefore, the medical evidence on record, which shows that both the said deceased had sustained injuries on their heads, when we turn to the evidence of PW3, Naren Deka, father of deceased Babu Deka and Mantu Deka, we find that according to his evidence, his son, Babu Deka, had married accused Simi Nandy, daughter of accused Anil Nandy and accused Parboti Nandy, and that accused Abhijit Nandy (i.e., the appellant herein) is brother of accused Simi Nandy.
10. As regards the occurrence, PW3 has deposed that on the day of occurrence, at about 8-00/9-00 P.M., when Babu and Mantu returned home from work, accused Simi and accused Parboti called both, Babu and Mantu, to their house and, a short while thereafter, some quarrel took place at the house of accused Parboti, the distance between the house of the accused and the house of PW3 being barely 16 cubits. It is in the evidence of PW3 that he, on hearing hue and cry raised from the house of accused Sukhlal, went running to the house of the accused and saw Babu and Mantu lying, smeared with blood, at the courtyard of the house of the accused Sukhlal Nandy and, when he raised alarm, a person, called Tarun, took him to police station, police came and took away the dead body. PW3 has clarified, in his evidence, that while Babu was found dead by the police, Mantu was still alive and though he (Mantu) was sent to hospital, he, too, died and, thereafter, he lodged a written Ejahar, which is Ext. 4, at Khelmati Police Outpost. Crl. A. 73 of 2009 Page 8
11. Pausing here for a moment, we may point out that, according to the evidence of the Investigating Officer (PW5), on 20.11.2002, i.e., the day of the occurrence, while he was functioning as In-charge, Khelmati Police Outpost, accused Sukhlal Nandy alias Anil Nandy came there, at about 10-00 P.M., and verbally informed that his son, Abhijit Nandy, had injured Babu Deka and Mantu Deka and that both the injured were lying in the courtyard of his (Sukhlal's) house and he was not aware as to whether the injured persons were still alive or had succumbed to their injuries. It is in the evidence of the Investigating Officer (PW5) that, based on the oral information, so received, Khelmati GD Entry No. 296, dated 20.11.2002, was made at about 10-20 P.M. The said GD Entry has been proved by PW5 as Exhibit 7. The contents of Exhibit 7, being relevant and heavily relied upon by the prosecution, are reproduced below:
"GDE No. 296 dated 20.11.02 At 10:20 P.M. Receipt of information & Proceeding of i/c & Staff Now, Sri Sukhlal Nandi, S/o Late Charan Nandi, a resident of North Lakhipur town, Ward No. 14, P/S North Lakhimpur, arrive at the police out post and verbally inform that at about 10 p.m., Sri Babu Deka along with his brother Sri Mantu Deka, quarreled fought with his son Sri Abhijit Nandi in his courtyard and his son struck in the heads of said Mantu Deka and Babu Deka and thereby causing injury, fell them on the ground. At present they were lying in his courtyard. He not know whether they are dead or alive. On the Crl. A. 73 of 2009 Page 9 basis of this information, the informant is kept in the outpost suspecting his involvement in this case.
Now I proceed to the place of occurrence, i.e., ward No. 14 accompanied by staff leaving H/C, Kamal Bara in charge of the diary.
Sd/- Illegible, Dist. & Session Judge, Lakhimpur, North Lakhimpur, Sd/- Sri Thaneswar Chutia, Date 20.11.2012 I/O Certified by me, Sd/- Illegible, 16.01.2007"
12. So far as PW2 is concerned, he is a witness to the seizure of a rod, an axe and a dao, which had been seized by the police, and PW4 is a witness to the inquest, which had been held on the said two dead bodies.
13. As far as PW7 is concerned, he has denied that he had any knowledge about the occurrence and though he was declared hostile by the prosecution, nothing could be elicited from his cross- examination by the prosecution to show that it was the accused- appellant, Abhijit Nandi, who had caused injuries on the persons of Babu and Mantu leading to their death. The evidence of PW2, PW4 and PW7 do not, therefore, advance the case of the prosecution.
14. As far as PW6 is concerned, he has merely submitted charge-sheet against all the four accused.
15. The question, therefore, which falls for determination, in the present appeal, is: Whether the present accused-appellant was the one, Crl. A. 73 of 2009 Page 10 who had caused injuries on the heads of Babu and Mantu leading to their death and, if so, whether the acts of causing of death of Babu and Mantu by the accused-appellant would amount to commission of the offence of murder ?
16. While considering the questions, posed above, it is imperative to note that as many as four accused persons were put on trial, they being, if we may reiterate, the present appellant, Abhijit Nandy, his sister, Simi Nandy, his mother, Parboti Nandy, and his father, Sukhlal Nandy alias Anil Nandy. The learned trial Court acquitted three of the accused persons, namely, Simi Nandy, Parboti Nandy and Sukhlal Nandy alias Anil Nandy. Noticeably, neither the prosecution has preferred any appeal nor has any revision or appeal been filed by the victim or his family against the acquittal of the said three accused persons.
17. Situated thus, what clearly emerges is that, at the relevant point of time, there were as many as four persons, admittedly, present in the house of the accused-appellant's father, i.e., accused Sukhlal Nandy (since acquitted), where Babu and Mantu were injured. Though a charge of criminal conspiracy had been levelled against accused Simi Nandy and her mother, Parboti Nandy, they have not been convicted of the offence of criminal conspiracy either. This apart, there is, admittedly, no cogent, clear and clinching evidence to show as to who, amongst the said four accused persons, was the one, who had caused injuries on the persons of Babu and Mantu leading to their death. Crl. A. 73 of 2009 Page 11
18. For the purpose of securing conviction of the accused- appellant, Abhijit Nandy, the prosecution heavily relied, and so relied the learned trial Court, upon the oral information, which accused Sukhlal Nandy had, allegedly, given to the police, on the night of the occurrence, i.e., on 20.11.2002, at 10-20 P.M., at Khelmati Police Outpost, and it is this oral information, which is being relied upon by the prosecution even in the present appeal in order to sustain the conviction of the accused-appellant.
19. However, while considering the contents of the GD Entry No. 296, dated 20.11.2002 (Ext. 7), it may be noted that even if an information, with regard to the commission of a cognizable offence, is given by a person, who is subsequently made accused, such an information, given by him, would, nevertheless, be treated as the First Information Report. If the contents of the information, so given, constitutes confession of the accused, who gives such information, the contents of such information to the extent that such information amounts to confession of the accused, would not be admissible in evidence, the same being barred by Section 25 of the Evidence Act except to the extent as the bar may be lifted by taking recourse to Section 27 of the Evidence Act.
20. A reference, with regard to the above, may be made to the case of Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119, wherein the Supreme Court has pointed out that a confession, made to a police officer, under any circumstances, is not admissible in evidence against Crl. A. 73 of 2009 Page 12 the accused and when the provisions, embodied in Section 25 and 26 of the Evidence Act, convey that confession, made by an accused to a police officer, while he is in the custody of the police officer, shall not be used in the evidence against the accused, an information, given by an accused to a police officer, constituting former's confession, would not be admissible in evidence. The Supreme Court has also observed, in Aghnoo Nagesia's case (supra), that a First Information Report is not substantive evidence, though the contents of the First Information Report may be used to corroborate the informant, under Section 157 of the Evidence Act, or to contradict him under Section 145 of the Evidence Act if the informant is called as a witness and that if the information is given by the accused himself, the fact of his giving information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. It has been further observed, in Aghnoo Nagesia's case (supra), by the Supreme Court, that if the information, given by an accused, is a non-confessional statement, it is admissible against the accused as an admission under Section 21 of the Evidence Act, but a confessional First Information Report, made to a police officer, cannot be used against the accused as evidence, because of the embargo placed by Section 25 of the Evidence Act except as provided under Section 27 of the Evidence Act.
21. To put it a little differently, the position of law, on the question of legality and probative value of a First Information Report, lodged by a person, who is, later on, made an accused, is in brief, thus: First Crl. A. 73 of 2009 Page 13 Information report, recorded under Section 154 CrPC is not substantive evidence, but the same may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Act, if the informant is called as a witness at the trial. Where the accused himself gives the first information, the fact of his giving the information will be admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is non-confessional, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant; but if the First Information Report given by the accused to a police officer is confessional in nature, the same cannot be used against him in view of the bar imposed under Section 25 of the Evidence Act. Such confession will include not only the admission of the offence, but all other admissions of incriminating facts relating to the offence contained in the confessional statement. No part of such confessional statement can be received in evidence except to the extent that the ban of Section 25 is lifted by Section 27 of the Evidence Act. The relevant observations, appearing, in this regard, in Aghnoo Nagesia's case (supra), read as under:
"9. Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found under the heading "Admissions". Confession is a species of admission, and is dealt with in Crl. A. 73 of 2009 Page 14 Sections 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides: "No confession made to a police officer, shall be proved as against a person accused of an offence."
The terms of Section 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by Section 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by Section 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by Sections 24, 25 and 26. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-section (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of Section 27 of the Evidence Act. The words of Section 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Crl. A. 73 of 2009 Page 15 Magistrate under Section 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by Section 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under Section 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by Section 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by Section 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them.
10. Section 154 of the Code of Criminal Procedure provides for the recording of the First Information. The information report, as such, is not substantive evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Act, if the informant is called as a witness. If the First Information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is a non-confessional statement, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant, See Faddi vs. State of Madhya Pradesh explaining Nisar Ali v. State of Up and Dalsingh v. King Emperor. But a confessional first information report to a police officer cannot be used against the accused in view of Section 25 of the Evidence Act."
22. In the backdrop of the law, as discussed above, let us revert to the case at hand. In the present case, the oral information, in question, Crl. A. 73 of 2009 Page 16 was lodged by Sukhlal Nandi, who was, later on, made accused. Since the oral information, which accused Sukhlal Nandy had given to the police, set into motion the police machinery and led to the investigation of the case, the Ejahar, subsequently filed by PW3, father of the said deceased, could not have been treated, in law, as the First Information Report of the case.
23. Undoubtedly, the First Information Report, in the present case, was the information, which had been given to the police by none other than the father of the accused-appellant and the same stands proved as Exhibit 7. What is, however, of immense importance to note is that, in the FIR, accused Sukhlal Nandy did not say anything, which amounted to confession inasmuch as he (accused Sukhlal Nandy) did not furnish any information, which could be said to be self-incriminating. Far from this, the information, which accused Sukhlal Nandy gave, implicated his son (i.e., the present appellant), Abhijit Nandy, as the person, who had caused, on the heads of both, Babu and Mantu, injuries, which, eventually, led to their death.
24. In short, thus, accused Sukhlal Nandy informed the police that his son, Abhijit Nandy, had struck on the heads of Babu and Mantu causing injuries on their heads. In support of the truth of the statement, so made by the informant, i.e., accused Sukhlal Nandy, there is no evidence on record. The contents of a First Information Report, as clarified in Aghnoo Nagesia's case (supra), do not constitute substantive evidence and cannot, therefore, become basis of conviction, Crl. A. 73 of 2009 Page 17 though the contents of the First Information Report are, undoubtedly, important and can be used for corroborating the informant by taking recourse to Section 157 of the Evidence Act or in order to contradict the informant by taking recourse to Section 162 of the CrPC.
25. In support of the contents of the First Information Report, which accused Sukhlal Nandy had lodged, there being no evidence on record, the information, which had been given by accused, Sukhlal Nandy, to the police, and which did not constitute substantive evidence, cannot be said to have been proved; more particularly, when one cannot remain oblivious of the fact that, at the time of the occurrence of assault on the said two deaceased, there were present, in the said house, as many as four persons besides the said two deceased and each one of the said four persons, namely, the present appellant, i.e., Abhijit Nandy, accused Sukhlal Nandy, accused Parboti Nandi, and accused Simi Nandy, could have been the assailant of Babu and Mantu. Logically, therefore, when there was no evidence in support of the contents of the GD Entry, 296, dated 20.11.2002, the present appellant, Abhijut Nandy, stood in the same position as did the remaining three other accused persons, who stand acquitted.
26. In the case at hand, the conviction of the accused-appellant is based on circumstantial evidence. In a given case, which is based on circumstantial evidence, the chain of events has to be convincingly proved and must be complete in all respects. Such a complete chain of Crl. A. 73 of 2009 Page 18 events must unerringly point to the accused, who is put on trial as the offender.
27. In the case at hand, when there is no evidence to show that it was the accused-appellant, who had injured Babu and Mantu and when the possibility of the other inmates of the house aforementioned having committed the offence could not have been boldly ruled out, the present appellant, Abhijit Nandy, could not have been convicted, particularly, when the remaining accused were acquitted by the learned trial Court by according to them benefit of doubt. At any rate, the present appellant, in the case at hand, deserved to be accorded benefit of reasonable doubt.
28. Because of what have been discussed and pointed out above, we are of the clear view that the evidence on record fell grossly short of the standard of proof, which is demanded in a criminal trial, and the present appellant ought to have been given, at least, benefit of doubt.
29. In the result and for the reasons discussed above, this appeal succeeds. The conviction of the accused-appellant and the sentence, passed against him by the judgement and order under appeal, are hereby set aside. The accused-appellant is held not guilty of the offence, which he stands convicted of, and he is acquitted of the same under benefit of doubt.
30. Let the accused-appellant be set at liberty, forthwith, unless he is required to be detained in connection with any other case. Crl. A. 73 of 2009 Page 19
31. With the above observations and directions, this appeal stands disposed of.
32. Send back the LCR.
JUDGE JUDGE RK Crl. A. 73 of 2009