High Court
Case Details
Crl.A. 19/2009 BEFORE HON’BLE MR.JUSTICE K.SREEDHAR RAO HON’BLE MR. JUSTICE B.D.AGARWAL (Agarwal, J) The appellant herein stands convicted under Section 302 of the Indian Pe nal Code vide judgment dated 9.1.2009 passed by the learned Additional Sessions Judge, Sivasagar in Sessions case No. 124(S-S) of 2005. After convicting the app ellant for the offence of murder he has been sentenced to undergo Imprisonment f or Life and also to pay fine of Rs. 3,000/-(Three thousand) with default stipula tion of Simple imprisonment for three months. Being aggrieved with his convictio n the accused has preferred this appeal. It may be mentioned here that the appellant was also tried for the offen 1.1 ce u/s 201 IPC but for the said offence he has been acquitted. At the same time, the co-accused Smti Jina Begum has also been acquitted from the offence u/s 302 /201 IPC. The third accused Md. Badrul Laskar absconded even before the trial. I n this way we are concerned with the conviction of one of the three accused pers ons. 2.
Legal Reasoning
10. In this way, we find that as many as six witnesses have deposed in ch orus that they saw the appellant in company of the deceased till 10 pm and on th e very next morning the dead body of the deceased was recovered from the water h yacinth. Except denying the incriminating circumstance the accused/appellant fai led to explain as to how the deceased was found murdered within few hours. Sri Das learned counsel for the appellant argued that the sole incrimina 11. ting circumstance that the deceased was last seen together in the company of the accused is not sufficient to convict the person. In support of this submission the learned counsel relied upon the judgment of the Supreme Court, rendered in t he case of Inderjit Singh Vs State of Punjab (AIR 1991 SC 1674) and a judgment o f the Gauhati High Court rendered in the case of Shah Alam Vs State of Assam; (2 011) 1 GLR 664. The learned counsel also contended that there was sufficient gap between the time of missing of the deceased and the recovery of his dead body a nd during this period the deceased must have come in contact in with other perso ns. 12. We agree with the submission of the learned counsel for the appellant th at it is not prudent to convict a person solely on the theory of (cid:28)last seen toge ther (cid:29). It is equally true that this incriminating circumstance is very weak for recording conviction. At the same time if the time gap between the missing of th e person and his recovery of dead body is short the circumstance of (cid:28)last seen t ogether (cid:29) assumes importance. In the case of State of U.P Vs Satish; ( 2005) 3 SC C 114 the Apex Court has observed as below : (cid:28)The last-seen theory comes into play where the time gap between the p oint of time when the accused and the deceased were last seen alive and the dece ased is found dead is so small that possibility of any person other than the acc used being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accu sed when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accus ed and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. (cid:29) 13. In the case of Shyamal Ghosh Vs State of West Bengal; reported in (2012) 7 SCC 646 the dead body was recovered after about 24 hours. Even in that situat ion it was considered to be proximate to last seen with the accused. In this cas e also the Hon’ble Supreme Court has held that once the last seen theory is pro pounded the onus is on the accused to explain as to what happened to the decease d after they were seen together alive. 14. In the case before us the deceased was seen alive in the company of the appellant till about 9.30 to 10.00 PM and the dead body was noticed under a wate r hyacinth in the early morning, i.e. within a gap 8 hours. Had the accused and the deceased separated during day hours an inference could have been drawn that the deceased must have come in contact with some other persons. However, both th e appellant and the deceased were seen together till late night and, as such, th ere was no scope for the deceased to come in contact with any other person and t hat he would have been killed by any person without any motive. Be that as it ma y, in the case before us the prosecution has proved a number of additional incri minating circumstances to reinforce the fact that the deceased was seen moving a round with the appellant on a motorcycle till about 10.00 PM, i.e last seen with the appellant. 15. Circumstances No.(ii): Recovery of bike PW 4 knew the appellant from before and he is an independent witness sin ce he is not related to the deceased family. This witness has deposed that on 3 .8.2004 the appellant Rakesh Bora came to their house in a motorcycle and told t o keep the motorcycle in their house and as he was going to participate in a spo rts competition. The appellant also told PW 4 that he would take back the motor cycle after coming from the tournament. The next day PW 4 read in a newspaper th at Rakesh Bora had murdered a person and also took away his motorcycle and havin g come to know about this incident he handed over the motorcycle at Sivasagar Po lice Station and the same was seized under Exbt.6. It is true that there was som e delay in formal seizure of the bike. However, it appears from the record that the offence was committed under Sonari police station and the bike was handed ov er by PW 4 at a different police station. At the same time Sivasagar PS GD Entry No. 592 dated 11.8.2004 is available in the record and from this GD Entry it is apparent that the motor bike was formally taken into custody on 11.8.2004, alth ough PW 4 is claiming that he had deposited the same in the police station on th e very next day of the incident. In our considered opinion little delay in forma l seizure of the bike is not going to the root of the case. The fact remains tha t the bike was kept in the house of PW 4 by the appellant in the early morning o f 3.8.2004 and the deceased was murdered on the previous night. Besides this the appellant has not explained as to how the bike came into his possession after t he murder of its owner. We do not find any iota of evidence to take a view that PW 4 has given a tainted evidence against the appellant with any motive. Hence the trial court has rightly taken into consideration this fact also as an incrim inating circumstance. 16. Circumstance No.(iii)- Seeking lift in a car PW 8 is a truck driver. He also drives an Ambassador car, belonging to t he same owner. This witness has deposed that on the relevant night in between 1 2.00 to 1.00 O’ clock he reached home with his truck. Soon thereafter the appel lant and the co-accused persons came to his house and sought a favour to take th em out of the town in his car saying that a fight had taken place and they need to leave the place immediately. However, the witness refused to drive away the accused person from the town. PW 8 has further deposed that on the next day he c ame to know that some one had killed Jahanur. In the cross-examination also the witness reiterated that the accused persons had requested him to give them lift in his car to go outside the town. The witness has further reiterated that the a ccused persons came at about midnight. In our considered opinion the testimony o f PW 8 is in sequence to other incriminating circumstances to indicate that the appellant was trying to hide himself after committing the murder and the eviden ce of PW 8 also junks the defense plea that the appellant had already left his p lace for Jabbalpur on the previous evening. 17. Circumstance No.(iv): Shouting at night PWs 5 and 19 also implicated the appellant in the offence of murder. PW 5 is an independent witness and a contractor by profession. This witness has als o deposed that at about 10.30 PM, while going to the house of one Dilip Chetri h e noticed few persons holding another man and some one from them was shouting (cid:28)h ey Rakesh don’t kill; take whatever you like (cid:29). The witness was cross-examined o nly to suggest that it was dark night and he saw the scuffle from a distance of 50 meters. However this suggestion was not of much significance since PW 5 is no t claiming that he could identify the assailants and the deceased. He had just h eard the name of Rakesh being shouted by another person and as per the observati on of the learned Sessions Judge it was possible in the night hours. We also agr ee with the view taken by the learned Sessions Judge. Besides this, according to PW 5 the said incident had taken place near a turning which is also corroborate d by the sketch map of the place of occurrence. 18. PW 19 has also corroborated the testimony of PW 5 by deposing that on th e relevant night he heard a commotion nearby and heard that someone was shouting the name of Rakesh. According to PW 19 on the following day the dead body of th e Jahanur was recovered. In the cross-examination PW 19 has reiterated the incri minating statement stated in the chief examination and we do not find any ground to disbelieve the testimony of PW 19 as well. 19. The aforesaid incriminating circumstances are coupled with some additio nal incriminating evidence. PW 3 was the tenant of co-accused Jina Begum. This w itness has also deposed that at about 1.00 O’clock in the night when his wife we nt out to answer the nature’s call she saw some people in their compound and th inking them to be thieves she came and reported to her husband. Thereafter PW 3 also came out and saw that co-accused Jina Begum and Badrul were sitting in the backside of their house and on being enquired they told the witness that the app ellant Rakesh might have been involved in a case of assault and police may come in their search at any time and that is why they were sitting in the back courty ard. PW 3 has further deposed that the co-accused Badrul had also asked him to s witch off the electric light. PW 3 Abdul Malik has further deposed that he did n ot see the appellant Rakesh with Jina Begum and Badrul but he had heard the voic e of Rakesh in another room and on the next morning he learnt from his children that Jina Begum was burning some clothes and cleaning the house. Though the witn ess was confronted in the cross-examination that all these statements were not s tated before the I.O. but, strangely the witness was not confronted from his ear lier statement. Even otherwise no suggestion was given to the PW 3 that he has g iven incriminating evidence due to any previous enmity. Though a suggestion was given to PW 3 that he has given false evidence on being tutored by the complaina nt but we do not find any material in the record to show that PW 3 was in anyway related or connected with the deceased family. Hence, the incriminating circums tances spoken by PW 3 can also be taken into consideration. In our considered opinion the aforesaid incriminating circumstances has 20. formed a complete chain, which are consistent with the hypothesis of the guilt of the appellant and excludes every other hypothesis. None of the incriminating circumstances have been explained by the appellant and the circumstances proved by the prosecution are incompatible with the innocence of the appellant. We also put on record that the learned Sessions Judge has also elaborately discussed th e entire prosecution evidence and defense story and has come to a correct findin g that the offence of murder was committed by the appellant Rakesh Bora. 21. For the foregoing reasons the appeal is bereft of any merit and the same is hereby dismissed. Resultantly, the conviction of the appellant under Sectio n 302 of IPC as well as the sentence inflicted upon him by the trial court is he reby affirmed. 22. Since the appellant had absconded from prison custody the police agency is directed to make all sincere efforts to apprehend the appellant to serve out the remaining period of sentence. 23. It is ordered that the Government of Assam is directed to pay compensa tion amount of Rs. 1,00,000/- (Rupees One Lac) to the victim of the deceased as provided under Section 357-A of the Code of Criminal Procedure, 1973. The Govern ment shall deposit the compensation amount in the Office of the learned Sessions Judge, Sivasagar within a period of 2 (two) months from the date of receipt of a copy of this order. On receipt of the money the same shall be disbursed to the family members of the deceased on proper identification and after obtaining pro per receipt. 24. Sivasagar. Return the LCR with a copy of this order to the learned Sessions Judge,
Arguments
Heard the arguments of Sri NJ Das, learned counsel for the appellant and Sri Z. Kamar, learned PP for the State of Assam. Sri SC Keyal learned counsel a ppeared on behalf of the informant and brought it to the notice of this court th at while the appellant was serving the jail sentence in the prison he escaped fr om the judicial custody on 4.2.2013 and since then he is absconding. Sri Keyal f urther informed that 8(eight) other criminal cases were also registered against the appellant and to his information the appellant has also been convicted in a case of kidnapping. These facts were supplied to the court only to take judicial notice about the conduct of the appellant. 2. As could be gathered from the record the deceased Sajimuddin @ Jahanur w as known to the appellant from before. It is the case of the prosecution that on 2.8.2004 at about 8 pm the accused/appellant came to the house of the deceased and took away the deceased on the motorcycle of the deceased. Thereafter, the de ceased did not return home and on the next morning the dead body of Jahanur was found lying under marshy bushes (plants grown on a water body). Thereafter, the FIR was lodged by the brother of the deceased on 3.8.2004, specifically naming R akesh Bora as the offender. 3. The FIR was registered as Sonari PS Case No.107 of 2004 u/s 302/201 IPC. PW-24 held inquest upon the dead body in presence of an Executive Magistrate a nd other witnesses. He found the dead body lying almost in two feet deep water a nd the dead body was covered with water hyacinth. After the inquest the dead bod y was sent to the Civil Hospital for autopsy. A sketch map of the place where th e dead body was thrown was also prepared. It was followed by recording the state ments of witnesses. Some of the witnesses were also produced before a judicial m agistrate and their statements u/164 CrPC were also obtained. The I.O. also seiz ed the motorbike of the deceased from Sivasagar Police station where it was depo sited by PW-4. During the course of investigation the I.O. could learn that the accused had gone to Jabalpur to take part in a wrestling competition. Hence, a W .T message was sent to Jabalpur police station wherefrom the appellant was arres ted. The I.O. also could gather that the appellant was in need of money to go t o Jabalpur and since the deceased could not arrange the money he was killed with sharp weapons and thereafter the dead body was thrown in the water hyacinth wit h the help of co-accused persons to cause disappearance of the evidence of murde r. 4. During the post-mortem examination the doctor had noticed the following wounds on the dead body: Cut injury on both side of bridge of nose, longitudeal in direction, siz (i) e is 1’X 1/4’ with scalp deep. Clotted blodd seen on the edge, two in number, on e in each side/ (ii) in size, clotted blood found. (iii) ut 3’ x 1’ with scalp deep with clotted blood. A cut injury on the lateral aspect of the right eye about ‰’ x1/4’ x ‰’ A lacerated injury on the left frontal region of head with haematoma abo 4.1. On dissection of the dead body the doctor found that clotted blood below the scalp on parietal region and membrane and brain were also found congested, stomach and small intestine were found empty. In the opinion of the doctor the d eath was caused due to coma, as a result of head injury. In the cross-examinatio n though the autopsy doctor did not give any opinion as to which injury was suff icient to cause death in ordinary course of nature, however, in our considered o pinion the death of the deceased must be the cumulative effect of all the three cut wounds on different parts of the body, which might have been caused with a s harp weapon. Even otherwise, dumping the dead body under water bushes after comm itting homicidal death is sufficient to hold that the appellant had definite int ention to eliminate the deceased. Hence, the offence squarely attracts Clause Fi rstly to Section 300 and it is punishable u/s 302 IPC. To establish the aforesaid offences the prosecution examined altogether 5. 24 witnesses. PW-1 is the brother of the deceased, who had lodged the FIR. PW-9 is the medical officer, who had conducted necropsy on the dead body. PW-16 and 2 0 are the judicial magistrates, who had recorded statements of witnesses u/s 164 CrPC. PW-17 is a police constable and he is a witness to the seizure of the mot orbike. PW-21 is the executive magistrate, who had witnessed the inquest upon th e dead body by the I.O..PW-24 is the I.O. All the remaining witnesses are the co -villagers of the accused and the deceased. 6. In his statement u/s 313 CrPC the appellant denied taking the deceased o n a motorbike and also took a plea that the witnesses have falsely framed him in the offence of murder on being tutored by the complainant. However, the accused did not disclose as to why he was falsely implicated in the offence of murder. No story of any previous animosity with the complainant and other witnesses was brought before the court either in the cross-examination of the prosecution witn esses or in his 313 statement. Though one witness was examined as DW 1, however, this witness has deposed nothing in favour of the appellant. The appellant was last seen in the company of the deceased 7. From the oral evidence of the witnesses it appears to us that the convi ction of the appellant has been recorded on the basis of the following incrimina ting circumstances;- (i) (ii) That, the bike of the deceased was taken by the appellant to the house of PW-4 and kept there after committing the offence of murder. (iii) Seeking lift in a car driven by PW-8 to flee away from the town. (iv) PWs-5 and 19 heard shouting of someone requesting the appellant Rakesh not to assault the deceased; and (v) offender. Lodging of the FIR promptly naming the appellant Md. Rakesh Bora as the 9. Circumstance (i):- Last seen together Testimonies of PW-1, 11, 12, 13 and 22 are relevant to establish this ci rcumstance. PW-1 has deposed that on the relevant night at about 9/9.30 pm he sa w from his verandah that his deceased brother Sajimuddin was going on his motorc ycle and the appellant Rakesh was the pillion rider. PW-1 has further deposed th at before that the deceased had come to the shop of the witness and took his fat her home on his motorcycle at about 7 pm. The witness has further deposed that i n the night his brother did not return home and on the next morning mother of th e appellant told him that the appellant had gone to Madhya Pradesh on the previo us evening. Suspecting some foul play he alerted the army personnel and at about 12 noon got the information that a dead body was recovered from under water hya cinth. Thereafter, PW-1 went to the spot and identified the dead body. Subsequen tly he lodged the FIR. In his cross-examination PW-1 has reiterated that his dec eased brother had accompanied the appellant on a motorcycle. PW-1 has further st ated that the Rakesh was moving in the locality to arrange a sum of Rs.5000/- fo r going to Madhya Pradesh. However, this piece of evidence appears to be hearsay one. 9.1 PW-10 is an employee of the deceased. PW-10 has deposed that on the rele vant day at about 9 pm both the deceased and the appellant came together to his house and the deceased had requested him to open the shop little early on the ne xt morning and saying so both the deceased and the appellant left his house on t he same bike. In the morning while PW-10 was going to open the shop he was told by PW-1 that the deceased had not returned home on the previous night and then P W-10 also reported to PW-1 that he had seen the deceased in the company of the a ppellant in the previous night. Thereafter, PW-10 went to the house of the appel lant and his mother told the witness that Rakesh had left home at 6 pm on way to Madhya Pradesh. There does not appear to be any penetrating suggestion to this witness in the cross-examination to disbelieve his testimony that the deceased a nd the appellant were last seen together. 9.2 PW-11 is an independent witness from the locality. He knew both the appe llant and the deceased. This witness has deposed that on the relevant night abou t 9/9.30 while he was sitting in a PCO close to their house both the deceased a nd the appellant came there on a motor bicycle and they stopped near a ’pan shop ’, which was also very close to the PCO. According to PW-1 he had also taken a b etel-leaf just few moments earlier form the same shop. In addition to the incrim inating evidence of ’last seen together’ PW-11 has also thrown some light regard ing the motive for committing the murder. According to him the deceased called h im outside the PCO and asked for Rs. 5000/- and on being inquired the deceased f urther told him that the money was needed for Rakesh. According to PW-11 while t he deceased was talking to him the appellant entered the PCO booth and talked to someone over phone. Thereafter, both the appellant and the deceased left the PC O on the same motorbike and by that time it was 10 pm. PW-11 has further deposed that on the next morning he reported to the brother of the deceased that he had seen Jahanur in the company of Rakesh on the previous night. In the cross-exami nation the defense failed to impeach the testimony of PW-11 by giving any materi al suggestion. 9.3 PW-12 has deposed that on the relevant night at about 8.30 pm he went to his maternal uncle’s house at Sonari. PW-12 has further deposed that on the w ay he had taken fried snacks being sold by a street vendor and at that time both the appellant and the decease came together on a motorcycle and stopped near hi m. PW-12 has further deposed that asking Rakesh to wait for a moment the decease d dropped him to his maternal uncle house on his motorbike. Sri Das, learned cou nsel for the appellant submitted that according to PW-12 the deceased was last s een in the company of the appellant at 8.30 pm and for some time both the deceas ed and the appellant had also separated. Hence, the theory of last seen together is not conclusively proved. This defense argument does not appear to be much co nvincing inasmuch as all other witnesses have categorically deposed that they sa w the appellant in company with the deceased till 9.30/10 pm. Besides this, the deceased had left the company of the appellant for a short duration to drop PW-1 2 to his maternal uncle house. In other words PW-12 has not deposed that after d ropping him the deceased had returned to his own house and not to the place wher e the appellant Rakesh was kept waiting. 9.4 PW-13 has also deposed that on 2.8.2004 the appellant came to his sho p and asked for some money. Thereafter, when the witness was returning home from the market he saw the appellant going away with the deceased on a motorcycle. S imilarly, PW-22 is the father of the deceased. He has also deposed that he used to return home from his shop along with the deceased. On the relevant night also he saw the appellant Rakesh standing near his gate and after he got down from t he motorcycle the appellant went away with the deceased on his motorcycle and th ereafter the deceased did not return home.