ASWINI KALITA v. STATE OF ASSAM

Judgment

GAHC010184742014 Page No.# 1/45 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./96/2014 ASWINI KALITA S/O LATE GOLAK, R/O VILL. MANIMARA UNDER PATHARKUCHI, P.S. DIST. BARPETA, ASSAM. VERSUS STATE OF ASSAM For the Appellant : Mr. K. Agarwal, Sr. Adv. Mr. B.K. Singh, Adv. For the Respondents: Ms. S. Jahan, APP, Assam Linked Case : Crl.A./91/2014 DR. KISMAT ALI and ANR. S/O LATE HAZI IBRAHIM ALI R/O LACHIT NAGAR ULUBARI UNDER PALTAN BAZAR POLICE STATION GUWAHATI-7 IN THE DIST. OF KAMRUP M ASSAM. 2: SANKAR BISWAKARMA S/O LATE DINGHA BAHADUR BISWAKARMA R/O NO. 1 GOROIMARI UDALGURI UNDER UDALGURI POLICE STATION IN THE DIST. OF UDALGURI BTAD0 ASSAM. VERSUS Page No.# 2/45 THE STATE OF ASSAM ------------ For the Appellant : Mr. D. Das, Sr. Adv. Mr. B.M. Choudhury, Adv. For the Respondents: Ms. S. Jahan, APP, Assam Linked Case : Crl.A./89/2014 WASIM RAFIQUE and 2 ORS. S/O LATE ABDUR RAFIQUE R/O HOUSE NO. 24 S.S. ROAD LAKHTOKIA UNDER PANBAZAR POLICE STATION GUWAHATI-1 IN THE DIST. OF KAMRUP M ASSAM. 2: BALIN CHANDRA DEKA S/O LATE CHENIRAM DEKA. 3: TILAK BORO S/O SRI MAHINDRA DAIMARY BOTH ARE RESIDENTS OF VILLAGE SONARISHAL UNDER BAIHATA POLICE STATION IN THE DIST. OF KAMRUP ASSAM. VERSUS STATE OF ASSAM ------------ For the Appellant : Mr. Z. Kamar, Sr. Adv. D. Talukdar, Adv. For the Respondents: Ms. S. Jahan, APP, Assam BEFORE THE HON’BLE MR. JUSTICE SUMAN SHYAM THE HON’BLE MR. JUSTICE ROBIN PHUKAN Page No.# 3/45 Date of hearing : 21/02/2022, 22/02/2022 23/02/2022 & 24/02/2022. Date of judgement : 26/04/2022 JUDGEMENT AND ORDER (CAV) Suman Shyam, J

1. Heard Mr. K. Agarwal, learned senior counsel assisted by Mr. B.K. Singh and Ms. P. Neog, learned counsel appearing for the sole appellant in Crl. App. 96/2014; Mr. D. Das, learned senior counsel assisted by Mr. B.M. Choudhury, learned counsel for the appellants in Crl. App. 91/2014 and Mr. Z. Kamar, learned senior counsel assisted by Mr. D. Talukdar and Mr. P. Choudhury, learned counsel for the appellants in Crl. App. 89/2014. Ms. S. Jahan, learned APP, Assam, has appeared on behalf of the State of Assam.

2. These 3 (three) appeals are directed against the common judgement dated 15/02/2014 passed by the learned Additional Sessions Judge No. 1, Kamrup (M) at Guwahati, in Sessions case No. 40(K)/2004, whereby, the appellant in Criminal Appeal No. 96/2014, i.e. accused Aswini Kalita was convicted under Section 302/201 of the Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5,000/- for the offence committed under Section 302 of the IPC and to undergo rigorous imprisonment for three years and to pay fine of Rs. 1,000/- for committing the offence under Section 201 of the IPC with default stipulations. By the impugned judgement, the appellants in Criminal Appeal No. 89/2014, viz. (1) Md. Washim Rafique, (2) Sri Balin Chandra Deka and (3) Sri Tilak Boro as well as the two appellants in Criminal Appeal No. 91/2014 i.e. Dr. Kismat Ali and Sri Sankar Biswakarma, were convicted under Section 201/202 of the IPC and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 1,000/- each for committing the offence under Section 201 of the IPC and also to undergo rigorous imprisonment for three months and to pay fine of Rs. 1,000/- each with default stipulation, for committing the offence under Section 202 of the IPC. The sentences awarded by the learned Sessions Court were to run concurrently in case of all the accused persons.

3. The prosecution case, as unfolded from the materials available on record, is to effect that on 22/08/2012, at about 9 a.m., an abandoned cartoon was seen lying under the over bridge at Hedayatpur, on the eastern side of the Nehru Stadium at Guwahati. Having Page No.# 4/45 seen the cartoon, suspecting bomb in it, Sri Arun Chandra Kalita had informed the Latasil Police Station, where-after, the Police arrived at the spot, opened the cartoon and found a female dead body inside the cartoon which was wrapped in a holdall. Accordingly, the Officer- in-Charge of the Latasil Police Station Sri Tileswar Saikia had lodged an ejahar based on which, UD case No. 9/2002 was registered in the Latasil Police Station on 22/08/2002 and thereafter, investigation had commenced.

4. Inquest was held and the dead body was sent for post-mortem examination. During the course of investigation, the dead body was identified as that of Preeti Roy Bharali. Having learnt about the identity of the deceased Latasil Police Station Case No.103/2002 was registered under Section 302/201 of the IPC. Upon completion of investigation, charge sheet was laid against accused Aswini Kalita under Section 302/201 of the IPC for committing the murder of deceased Preeti Roy Bharali and also for destroying the evidence. Charge sheet was also submitted against accused persons Md. Washim Raifque, Sri Balin Chandra Deka, Sri Tilok Boro, Dr. Kismat Ali and Sri. Sankar Biswakarma under Section 114/201/202 of the IPC and against co-accused Smt. Lakhi Das under Section 201 of the IPC. After committing the case for trial by the Sessions Court, charges, as aforesaid, were framed against all the accused persons .The charges were read over and explained to the accused persons. However, since they had pleaded not guilty and claimed to be tried, the matter went up for trial. All the accused persons were subjected to joint trial.

5. There is no eye witness in this case and the prosecution case is based on circumstantial evidence. The prosecution had also relied upon the confessional statements of 3 (three) accused persons, viz. Sri Aswini Kalita, Dr. Kismat Ali and Sri Sankar Biswakarma recorded under section 164 Cr.P.C. In order to bring home the charge, the prosecution had examined as many as 21 witnesses including the doctor who had conducted the post-mortem examination over the dead body (PW-16) and the two I.Os., who had conducted investigation and submitted charge sheet in this case as PWs 21 and 20 respectively. Based on the evidence available on record, the learned Sessions Judge had convicted the above named appellants in the manner indicated herein above. However, co-accused Smt. Lakhi Das was acquitted by the learned trial court by giving her the benefit of doubt.

6. By referring to the materials available on record, Mr. K. Agarwal, learned senior counsel appearing for the appellant Aswini Kalita has argued that save and except the Page No.# 5/45 confessional statement of the accused, there is no other material available on record so as to convict his client. Mr. Agarwal has further argued that even the so called confession of the appellant has not been recorded in accordance with law in as much as, sufficient time for reflection was not afforded to the accused. The learned counsel has argued that statement of his client recorded by the learned Magistrate being ex-culpatory in nature, the same could not have been relied upon by the learned Sessions Court so as to convict the appellant, more so, in view of the fact that the appellant had subsequently retracted his confession. Mr. Agarwal has also argued that although the learned Sessions Judge has held that there was discovery of garments and hair of the victim by the Police on being led by the accused, in reality, there was no such discovery in this case. To sum up his arguments Mr. Agarwal has submitted the conviction of the accused cannot be based solely on his exculpatory confession and in the present case, the evidence available on record is not sufficient to complete the chain of circumstances so as to convict his client under Section 302/201 of the IPC.Therefore, the appellant deserves to be acquitted. In support of his above arguments, Mr. Agarwal has relied upon the following decisions :-

1. (1999) 5 SCC 253 State through Superintendent of Police, CBI/SIT Vs. Nalini and others.

2. AIR 1939 PC 47 Pakala Narayana Swami Vs. Emperor.

3. AIR 1953 SC 459 Puran Vs. State of Punjab.

4. AIR 1957 SC 637 Sarwan Singh Rattan Singh Vs. State of Punjab.