High Court
Case Details
Crl.A. 71/2012 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI HON’BLE MR. JUSTICE P.K.MUSAHARY This is an appeal against the judgment and order dated 23.3.2012 passed by the l earned Sessions Judge, Udalguri convicting the appellants under Section 342 and 302 read with Section 34 IPC and sentencing each of them, for their conviction under Section 342 IPC read with Section 34 IPC for simple imprisonment for one year and also sentencing each of them, for their conviction under Section 302 I PC read with Section 34 IPC, imprisonment for life and pay fine of Rs.1 lac, and in default of payment of fine to undergo simple imprisonment for another perio d of one year. 2. The prosecution case briefly stated is thus: Gopal Chauhan (since deceased) was the son of Parmeshwar Chauhan , who tried to take away forcibly the daughter of Mahadev Chauhan, Rita. On 22.1 1.2004, Gopal Chauhan went to the house of accused Mahadev Chauhan to take away Rita. However, the accused appellants caught hold of Gopal Chauhan and beat him mercilessly to death at the courtyard of the house of accused Mahadev Chauhan. W hile Mahadev Chauhan was proceeding towards Kalaigaon Police Station, he happene d to meet ASI of Police Rajabuddin Ahmed (PW-8) at Singrimari where the said po lice officer had the case of some law and order problem. Mahadev Chauhan informe d P.W.8 that he had detained Gopal Chauhan by fastening him with the help of ro pe and kept him in his house. After discharging his responsibility at Singrimari Tea Estate, PW.8 arrived at the house of accused Mahadev Chauhan and found the dead body of Gopal Chauhan lying at the courtyard of the house of accused Maha dev Chauhan. Having found the said dead body with multiple injuries, PW-8 inform ed PW-9, who was functioning at the relevant point of time as Officer-In-Charge of Kalaigaon Police Station, about the fact that Gopal Chauhan’s dead body had b een found lying at the house of accused Mahadev Chauhan. Having received the inf ormation as mentioned herein before, PW-9 made an Entry in General Diary (Ext.3) and went to the house of the accused Mahadev Chauhan, where PW-9 held inquest over the dead body, and also subjected it to post mortem examination. In cours e of time, on completion of investigation, a charge-sheet was laid. Meanwhile,
Legal Reasoning
however, Sri Sugrib Chauhan lodged the written ejahar (Ext.1) at the said police station and treatin g the same as the First Information Report, Kalaigaon Police Station Case No.14 2/04 was registered under Sections 302/34 IPC against the accused appellants who se names appeared in the said written ejahar as assailants of the said deceased. 3. Having completed the investigation, Investigating Officer (PW-9) submitted charge-sheet, under Section 302/34 IPC, against the present accused-a ppellants. 4. At the trial, when charges under Sections 342 and 302 read with Section 34 IPC were framed against the accused appellants, all of them pleaded n ot guilty thereto. 5. In support of their case prosecution examined altogether 9 witne ss. The accused appellants were then examined under Section 313 Cr.P.C. and in t heir examination aforementioned, the accused denied that they have committed the offence. While so denying their guilt all the accused took the plea of alibi. I n support of their plea, the defence too adduced evidence of examining two witn esses including the accused Mahadev Chauhan. 6. Having found all the accused guilty of the offences, to which t hey were charged with, the learned trial Court convicted and sentenced them a s mentioned above. Aggrieved by the orders of conviction and sentence, which have been passed against them, the accused have preferred this appeal. 7. We have heard Mr. B M Choudhury, learned counsel for the appella nts and Ms S.Jahan, learned Addl. Public Prosecutor, Assam. 8. While considering the present appeal it needs to be noted, at th e very out set, that the Doctor, PW-7 who had conducted the post mortem examinat ion on 23.1.04 on the dead body of Gopal Chauhan, found as follows: (cid:28) (i)Lacerated injury 3 cm x 2 cm over the right parietal region of the scalp. (ii)Swelling of both elbow joints. (iii)Swelling of both tebial region. (iv)Lacerated injury (v)Left parital bone was found fractured and depressed into the brain. Blood clot over the base of the skull. (vi)Membrane over the parietal lobe of the brain was 2 cm x 1 cm over the right wrist joint area. found lacerated. (vii)Parietal lobe of the brain was found lacerated over an area of 1 cm x 1 cm with blood clot. (cid:29) It is in the evidence of doctor (PW-7) injuries were ante mortem in nature caused by blunt object. The Doctor (PW-7) has opined that the injured died of shock as a result of the injury caused to his brain. In cross examinati on, Doctor (PW-7) has clarified that except the brain injury, no other injury wa s fatal. 9. The finding of the Doctor and his opinion with regard to the nat ure of injuries found on the dead body of Gopal Chauhan, the nature of weapon us ed and the cause of death are not in dispute at the trial. Nor are the same in d ispute in this appeal. From the undisputed findings and opinion of the Doctor (P W-7), there can be no escape from the conclusion that Gopal Chauhan sustained mu ltiple injuries caused by blunt object and his death was homicidal in nature. Th e question, however, remains if the accused-appellant does not take the respons ibility, then who had caused Gopal Chauhan’s death? However, answer to the abo ve question could be found from the evidence of PW-1, who has deposed that his h ouse is situated at a distance of three furlong from the house of Mahadev Chauha n. In no uncertain words, PW-1 has deposed that he had not seen the occurrence himself and that he came to know about the occurrence from their village headman , (PW-3), who had informed that Gopal Chauhan had been killed by the accused per sons who were appellants in this appeal. 10. Bearing in mind the evidence of PW 1 and PW-3, village headman, according to whom Gopal Chauhan had been killed by the accused-appellants, we n oticed that PW-3 has, nowhere, deposed that he informed PW-1 that Gopal Chauhan had been killed by the accused. The evidence of PW-1, that he had been told by PW-3 that the accused had killed Gopal Chauhan, is not trustworthy and therefor e, the evidence of PW-1, is to be excluded from the purview of our considerati on. 11. What is further noticeable from the evidence of PW-3 is that th e accused persons admitted to him their guilt that they had killed Gopal Chauhan because Gopal Chauhan wanted to take away forcibly the daughter of Mahadev Chau han, namely, Reeta Devi. We may promptly point out, in this regard, that the Inv estigating Officer has confirmed that no such statement was made by PW-3, when h is statement was recorded during investigation. 12. Situated thus, it is clear that PW-3 has made substantial improv ement on his previous statement made before the police and in absence of any exp lanation offered in this regard or discernible from the evidence on record, we h ave no other option, but to treat the evidence of PW-3 as wholly unreliable. 13. So far PW-2 is concerned, he was declared hostile by the prose cution and though he has been cross-examined by the prosecution, there is no sub stantive evidence given by PW-2, which can be said to have incriminated the acc used appellants. 14. So far as PW-4 is concerned, it can be pointed out from his cros s-examination that he has admitted that he did not witness the occurrence. Even the evidence of PW-5 does not improve the prosecution’s case inasmuch as he had merely seen the dead body of Gopal Chauhan lying at the courtyard of the accused Mahadev Chauhan When we come to the evidence of PW-6, we find that he has uttere 15. d, in the examination-in -chief, that he had seen the accused persons dragging G opal Chauhan to the house of accused Mahadev Chauhan and though he wanted to in tervene, the accused persons intimidated him and he saw the accused assaulting G opal Chauhan by hammer and lathi. Even with regard to this witness, the Investig ating Officer has confirmed that PW-6 did not state in his previous statement re corded during investigation, that he had seen the accused assaulting Gopal Chauh an. Thus, even the evidence of PW-6 does not help the prosecution in proving its case. So far as PW-8 is concerned, he has deposed that on the day of o 16. ccurrence, when he was on a visit to Singrimari Tea Estate in connection with la w and order duty, Mahadev Chauhan reached there and told him that he had detaine d Gopal Chauhan by fastening him with a rope. PW-8, after concluding his investi gating duty at Singrimari Tea Estate, went to the house of Mahadev Chauhan, wher e he found the dead body of Gopal Chauhan lying. 17. What emerges from the above discussion is that there is no eye w itness to the occurrence of assault on, and killing of, Gopal Chauhan. The learn ed trial Court too, has recorded in the impugned judgment that there is no eye w itness to the occurrence. The conviction of the accused-appellants is, however, based on circumstantial evidence. The question, therefore, is whether the circum stantial evidence, in the present case, was sufficient to prove the guilt of the accused appellants. 18. While dealing with the question posed above, it needs to be poin ted out that except the fact that Gopal Chauhan’s dead body was found lying at t he courtyard of accused Mahadev Chauhan and the fact that Mahadev Chauhan had hi mself informed the Investigating Officer that Gopal Chauhan had been kept detain ed by fastening, there is no evidence to show as to who had assaulted and killed Gopal Chauhan. The learned trial Court appears to have shifted the burden of pr oving the innocence to the accused-appellants, rather than, demanding the prosec ution to prove its case beyond reasonable doubt. Regarding the plea of alibi, si nce the accused-appellants had taken such a plea, it was the duty of the learned trial Court to come to a finding that the presence of the accused-appellants at the time of assault on Gopal Chauhan had been proved beyond any shadow of doubt . In this regard, however, there is no iota of credible evidence on record to s how that all the accused-appellants were present in the courtyard of accused app ellant Mahadev Chauhan, when Gopal Chauhan was assaulted and killed. 19. Because of the fact that accused-appellant, Mahadev Chauhan, had reported to the Investigating Officer that he had detained Gopal Chauhan (dece ased) by tying him by means of a rope, it was suspected that accused-appellant, Mahadev Chauhan, was involved in the alleged killing of Gopal Chauhan. Suspicion , however grave, cannot take the place of proof. There is nothing to show from t he evidence on record that the accused-appellant, Mahadev Chauhan, was present i n his courtyard at the time, when Gopal Chauhan was put to death. 20. Because of what has been discussed and pointed out above, we are of the considered view that the evidence on record was wholly insufficient to h old the accused-appellants guilty of the offence charged with. Their conviction , therefore, cannot be sustained.
Decision
21. In the result and for the reasons discussed above, this appeal s ucceeds. The impugned conviction of the appellants and the sentences passed agai nst them by the judgment and order under appeal are hereby set aside. The accuse d-appellants are held not guilty of the offences which they stand convicted of a nd they are acquitted on benefit of doubt. 22. uired to be detained in connection with any other case. 23. Let the accused-appellants be set at liberty unless they are req Send back the LCR.