High Court
Case Details
Crl.A. 117/2010 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY THE HON’BLE MR. JUSTICE P.K. SAIKIA JUDGMENT AND ORDER (ORAL) [Katakey, J.] This appeal is directed against the judgment of conviction dated 28.06.2 010 passed by the learned Sessions Judge, Kokrajhar, in Sessions Case No.78/2009 , convicting the appellant under Section 302 IPC and sentencing him to undergo r igorous imprisonment for life and to pay a fine of Rs.5,000/-, in default to suf fer rigorous imprisonment for a further term of 6(six) months.
Facts
2. Based on the first information report (Ext.-1) lodged on 07.11.2007, by Biswajit Sarkar (PW-1), brother of the deceased, alleging that the accused perso ns, namely, the appellant herein and his parents in furtherance of a hatched pla n, confined his sister Tumpa Sarkar (deceased) in her living room, beat her up, leading to her death, lodged with the Officer-in-Charge of Bhawraguri Outpost, G ossaigaon Police Station Case No.247/2007 has been registered under Section 302/ 34 IPC. The investigating agency, thereafter, proceeded to investigate and recor ded the statements of the persons acquainted with the facts, under Section 161 C r.P.C. and also sent the dead body for post-mortem examination, after conducting the inquest. The investigating agency on completion of investigation submitted charge-sheet only against the present appellant under Section 302 IPC. Vide orde r dated 30.09.2009 the learned Addl. Chief Judicial Magistrate, Kokrajhar, in G. R. Case No.969/2007, committed the accused-appellant for trial by the Court of S essions, since the offence alleged is triable by the Court of Sessions exclusive ly. The learned Sessions Judge, Kokrajhar, then on 03.11.2009, framed charge aga inst the accused-appellant under Section 302 IPC, which when read over and expla ined to him, he pleaded not guilty and claimed to be tried. Hence the trial comm enced. 3. The prosecution in order to bring home the charge framed against the acc used-appellant, examined 8(eight) witnesses, namely, Biswajit Sarkar, first info rmant, brother of the deceased as PW-1; Dr. Jitendra Kr. Nath, who conducted the autopsy and submitted the post-mortem examination report (Ext.-2), as PW-2; Shr i Sanjoy Sarkar, another brother of the deceased as PW-3; Shri Kartik Sarkar, an other brother of the deceased as PW-4; Nikhil Ch. Sarkar, uncle of the accused-a ppellant as PW-5; Shri Abhijit Sarkar, another brother of the deceased as PW-6; Shri Gopal Ch. Dutta, a neighbour, as PW-7 and Shri Binanda Basumatary, the Inve stigating Officer, as PW-8. The FSL report relating to the examination of the vi scera has also been proved as Ext.-3. The G.D. Entry made by the police on recei pt of the information relating to the death of the deceased, prior to lodging of the first information report, has been proved and marked as Ext.-4. The witness es were duly cross-examined by the defence, who though was given the opportunity to adduce evidence, he, however, did not lead any evidence. The statement of th e accused-appellant under Section 313 Cr.P.C. was thereafter recorded. 4. The learned Sessions Judge, upon appreciation of the evidence on record, has convicted the accused-appellant under Section 302 IPC and sentenced him to undergo imprisonment, as noticed above. Hence the present appeal.
Legal Reasoning
13. In view of what has been discussed above, we are of the view that the pr osecution could not bring home the charge framed under Section 302 IPC against t he accused-appellant and hence the judgment of conviction dated 28.06.2010 recor ded by the learned Sessions Judge, Kokrajhar, is set aside. The accused-appellan t, namely, Mrinal Sarkar, is set at liberty, if not wanted in any other case. 14. 15. Hence the appeal stands allowed. Registry is directed to send down the records.
Arguments
5. We have heard Mr. K. Sarma, learned counsel for the accused-appellant an d Ms. B. Bhuyan, learned Addl. Public Prosecutor appearing for the State of Assa m. 6. The learned counsel appearing for the appellant, referring to the deposi tions of PWs-5 and 7, namely, Nikhil Ch. Sarkar and Gopal Ch. Dutta and also the deposition of PW-8, namely, Binanda Basumatary, the I.O., has submitted that it is evident therefrom that the room in which the deceased was found to be dead w as locked from inside and though those witnesses tried to open the door, they co uld not do so. It has also been submitted that it is evident from the deposition s of those three witnesses that there was only one door in the room, through whi ch the ingress and egress from the room is possible and there was no ventilation and the three windows, one in the front and the two others in the rear, are fit ted with the iron rods and hence no one can enter into the room or come out ther efrom through the windows. The learned counsel submits that in view of such evid ence, the depositions of PWs-1, 3, 4 and 6, who are the close relatives of the d eceased, being the brothers, cannot be relied upon for recording the finding tha t the door was not locked from inside and rather it was opened. It has also been submitted that the learned Sessions Judge has committed illegality in recording the conviction under Section 302 IPC, based on the evidence of PW-2 only, namel y, the doctor, who has found finger marks on the neck of the deceased, more so, when no investigation, whatsoever, has been conducted by the investigating agenc y to find out whether the finger marks found on the neck of the deceased are of the accused. The learned counsel submits that it is evident from the depositions of PWs-1, 3, 4 and 6 that they handled the dead body and lift the dead body fro m the floor and placed it on the bed, during which may be any one of them place their palm on the neck of the deceased, which results availability of the finger marks of a person on one side of the neck of the deceased. The learned counsel submits that in view of the aforesaid evidence, the judgment of conviction recor ded by the learned Sessions Judge needs to be interfered with and the accused-ap pellant is to be set at liberty. 7. Per contra, the learned Addl. P.P. placing reliance on the evidence of P Ws-1, 3, 4 and 6 has submitted that it is evident from their depositions that th e door was found open. It has also been submitted that PW-2, the doctor, who con ducted the autopsy, has also stated in his evidence that he found the finger imp ression on one side of the neck of the deceased. The learned Addl. P.P., therefo re, submits that taking into account of the evidence of those witnesses coupled with the evidence of PWs-5 and 7, the learned Sessions Judge has rightly convict ed the accused-appellant under Section 302 IPC and sentenced him as aforesaid. 8. he parties and also perused the evidence available on record. We have considered the submissions advanced by the learned counsel for t 9. The death of the deceased and it is homicidal in nature have been proved by the doctor i.e. PW-2, who conducted the post-mortem examination (Ext.-2). Th e doctor in his evidence has narrated the injuries found on the person of the de ceased. Such injuries have not been challenged by the accused-appellant. 10. The pertinent question which requires determination by this Court is, th erefore, whether the accused-appellant is the author of the crime. As noticed ab ove, the prosecution in order to bring home the charge, examined 8(eight) witnes ses, out of whom PWs-1, 3, 4 and 6 are the brothers of the deceased. While PW-5 is the uncle of the accused, PW-7 is an independent witness, who is a neighbour. PWs-1, 3, 4 and 6 in their depositions have stated that on receiving the inform ation about the death of their sister, they hired a vehicle and came to the hous e of the sister and found the door of the sister’s room, where the sister’s body was lying, open. They have also stated that they found the body on the floor of the room with a sari tied around the neck and they lifted the body from the flo or and placed on the bed available in the room. These witnesses further have sta ted that there is only one door in the room, apart from three windows, which are secured by the iron rods. The prosecution story of the door being open, however , has not been supported by PWs-5 and 7. PW-5 in his evidence has stated that im mediately on receiving the information, he came to the house of the deceased as well as of the accused-appellant and saw, through a window open, that the deceas ed was lying on the floor with a sari wrapped around her neck and when he tried to open the door, he could not do so, as the door was locked from inside. The sa id version has been supported by an independent witness, namely, Gopal Ch. Dutta (PW-7), who is a neighbour, who has deposed that hearing the cry he immediately came to the place of occurrence and saw the deceased lying on the floor, throug h a open window, who has the sari tied around her neck. This witness has also st ated that he also tried to open the door but he could not do so because the door was bolted from inside. The Investigating Officer, Binanda Basumatary (PW-8), i n his evidence has stated that prior to lodging of the F.I.R. (Ext.-1) by the PW -1, he received an information relating to the incident and accordingly G.D. Ent ry No.90 dated 07.11.2007 was recorded at 2 O’clock night and thereafter he visi ted the place of occurrence, saw the person lying on the floor of a room through a window and when he tried to open the door, he could not do so, as it was bolt ed from inside. This witness has further stated that, thereafter, on receiving t he written information, he again visited the place of occurrence and found the d oor open. PWs-5 and 7 in their evidence have also stated that though they found the door was bolted from inside and could not be opened, PWs-1, 3, 4 and 6 after their arrival broke open the door, entered the room, lifted the dead body of th e deceased from the floor and place it on the bed inside the said room. PW-2 i.e. Dr. Jitendra Kr. Nath, who conducted the post-mortem examinati 11. on, has also deposed that he found the finger mark on one side of the neck of th e deceased. 12. Having regard to the evidence of the independent witnesses, namely, PW-7 and PW-8, coupled with the evidence of PW-5, as discussed above, the version of PWs-1, 3, 4 and 6, in so far as it relates to the deposition that the door was found open, cannot be accepted. That apart, it is being in the evidence of PWs-1 , 3, 4 and 6 themselves that they lifted the body from the floor and place it on the bed, the finger marks found on one side of the neck of the deceased may be because of the placement of hand of any of those persons on the neck while lifti ng the body from the floor to the bed. The prosecution also did not make any att empt to prove that the finger marks found on one side of the neck of the decease d, match with the fingerprint of the accused-appellant.