High Court
Case Details
Crl.A. 243/2007 BEFORE HON’BLE MR. JUSTICE I.A. ANSARI HON’BLE MR. JUSTICE P.K. MUSAHARY JUDGEMENT AND ORDER [ o r a l ] { IA Ansari, J } This appeal is directed against the judgment and order, dated 29-09-2007, passed , by the learned Additional Sessions Judge, Tinsukia, in Sessions Case No. 97 (M ) 2006, convicting the accused-appellant, under Section 302 IPC and sentencing h im to suffer imprisonment for life and pay fine of Rs.5,000/- and, in default of payment of fine, suffer rigorous imprisonment for a period of six months. 2. The case of the prosecution, as surfaced at the trial, may, in brief, be described as under: Dimbeswar Gogoi was the son of the informant, Ghana Gogoi (PW1). Accused Gopal Gogoi is the nephew of the said informant. On 22-07-2002, Dimbeswar Gogoi (since deceased) and Gopal Gogoi, nephew of the informant, went to the farmhous e of Ghana Gogoi and stayed there. On 22-07-2002 itself, at 3.30 a.m., accused G opal came to the house of the informant and informed the latter that while dimbe swar was sleeping in the farmhouse, somebody had caused his death by a inflictin g blows on him by sharp cutting weapon. On receiving the information, Ghana Gogo i, immediately, rushed to the farmhouse along with some of his neighbours and fo und his son, Dimbeswar, lying dead with multiple cut injuries on his body. On an Ejahar being lodged, in writing, in this regard, at Lekhapani Police Station, L ekhapani Police Station Case No. 28 of 2002, under Section 302 IPC, was register ed. During the course of investigation, police visited the place of occurrence a nd held inquest over the said dead body, which was also subjected to post mortem examination. On the arrival of the police, the accused handed over to the polic e a dao, alleged to be the weapon of offence, which was allegedly seized by the investigating officer. This apart, accused made confession before PW5 and PW6, w hile the accused was in the police custody, and the reason assigned by the accus ed for having killed Dimbeswar was that a quarrel had taken place between them a s the accused happened to have damaged the trouser of Dimbeswar. On completion o f investigation, a charge sheet was laid, under Section 302 IPC, against the acc used. 3. At the trial, when a charge was framed under Section 302 IPC against the accused-appellant, he pleaded not guilty thereto. 4. In support of their case, prosecution examined as many as 11 (eleven) wi tnesses. The accused was, then, examined under Section 313 Cr.P.C. In his examin ation aforementioned, the said accused denied that he had committed the offence, which he was alleged to have committed, the case of the defence being that of d enial. No evidence was adduced by the defence. 5.
Legal Reasoning
Having, however, found the accused guilty of the offence, which he stood charged with, learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence pa ssed against him, the accused, as a convicted person, has preferred this appeal. 6. d Additional Public Prosecutor, Assam.
Legal Reasoning
We have heard Mr. B Prasad, learned Amicus Curiae, and Mr. D Das, learne 7. While considering the present appeal, it needs to be noted that the evid ence of the doctor, namely, Dr. BC Roy Medhi (PW9), who had, admittedly, conduct ed the post mortem examination, on 23-07-2002, on the dead body of Dimbeswar Gog oi @ Bhai, found as follows: (cid:28)Male dead body, average built, brown complexion. Body was cold on touch. Rigorm ortis was present partially on both limbs. Body looked pale as a whole. The inju One cut injury 8 x 5 cm on back of upper part of abdomen x muscle deep. One cut injury 3 x 2 x scalp layers deep on occipital region. 3. One cut injury on right parietal region of scalp over vertex x skull ries noted are:- 1. 2. 3. and brain deep cut. 4. ight eye brow x muscle and bone cut deep. Internal injuries: Cranium & Spinal Cord : Scalp - On diesection, contusions present in frontal and both parietal and occipital region. Skull - skull is cut along injury Nos. 3 & One obliquely placed cut injury on mid and right side of forehead over r 4. Menings also cut along injury Nos. 3 & 4. Sub-dural & sub-arachnoid haemorrhage present in both sides. Brain - cut injury present on frontal, right parietal lobes. Intra cerebral haemorrhage present aro und the cut injury. Brain looks pale on section. Spinal cord was not examined. T he organs of thoracic and abdomen found healthy. Stomach - contents - undigested rice, dal, vegetables & gas. (cid:29) 8. Based on his findings, the doctor has opined that the death was caused d ue to injuries sustained on the head by the said deceased, the injury being ante mortem and that the injuries were sufficient to cause death in the ordinary cou rse of nature. 9. The evidence, given by the doctor, has almost gone unchallenged by the p rosecution as well as by the defence and the medical evidence, thus, shows that Dimbeswar sustained multiple cut injuries, which resulted into his death and tha t the injury on the head proved fatal. 10. Bearing in mind what is indicated above, when we come to the evidence of the informant (PW1), who is father of the deceased and uncle of the accused-app ellant, we notice that according to his evidence, Dimbeswar and Gopal went, on t he night of the occurrence, to the farmhouse of PW1 and, on that very night, at about 1.00 a.m., accused came to the residence of PW1, woke him up and told him that somebody had assaulted Dimbeswar by dao. On receiving this information, PW1 rushed to the farmhouse and, on arriving there, found the dead body of his son, Dimbeswar, lying at the door of the farmhouse with multiple injuries on his bod y. 11. From the evidence of PW1, it clearly transpires that he does not know as to how his son was killed and who killed his son except the fact that the accus ed was present with the said deceased at the farmhouse, when the occurrence had taken place. 12. So far as PW2, PW3 and PW4 are concerned, their evidence is to the effec t that on the night of the occurrence, the accused came to their house and infor med that Dimbeswar had been killed in the farmhouse and, on being so informed, a ll these witnesses, namely, PW1, PW3 and PW4 went to the said farmhouse and foun d Dimbeswar lying dead with multiple injuries on his person. As far as PW5 is concerned, his evidence is to the effect that on the ni 13. ght of the occurrence, the accused came to his house and informed him that Dimbe swar had been killed by someone and, on hearing about the killing, when PW5 reac hed the place of occurrence, he found Dimbeswar lying dead and, later on, police came. It is in the evidence of PW5 that the accused confessed before the police that he had killed Dimbeswar and also produced before the police a dao, which w as seized. Close on the heels of the evidence of PW5, PW6 has deposed that he came 14. to know about the occurrence in the following morning and, on reaching the place of occurrence, he found Dimbeswar’s dead body on the ground and police came the re. It is in the evidence of PW6 that when he visited at the police station and met the accused at the lock-up, the accused told him that he had killed Dimbeswa r. 15. Having noticed that there is no eye witness to the alleged occurrence of assault on, and killing of, Dimbeswar by the accused-appellant, the learned tri al Court has culled out the incriminating circumstances, which the learned trial Court has relied upon to found conviction of the accused-appellant. These circu mstances read as under: (cid:28)Firstly, the accused on the night of occurrence stayed in the farm house at Kum sai Chapori with the deceased Dimbeswar Gogoi. Secondly, on the night of occurrence, the accused went to the house of PW4 Lewas Orang with a dao to report the occurrence and thereafter, he went to the house of the informant to report the occurrence. Thirdly, the dead body of the deceased was found lying at the door step of the f arm house and there was pool of blood at the kitchen of the farmhouse. Fourthly, the accused made confession before PW5 Indreswar Handique and PW6 Kush al Gogoi, when they met at the police lock-up that he caused deadly assault on D imbeswar by dao, as there was an altercation between the accused and the decease d over a trouser, which pin points the motive of the accused to kill Dimbeswar. Fifthly, the dao used in the commission of the offence was recovered and seized by the I.O. at the instance of the accused. Sixthly, the doctor found multiple cut injuries on the head and other vital orga ns of the deceased during post mortem examination, which were stated to be ante mortem and caused by heavy sharp cutting weapon like a dao. Seventhly, the accused admitted to have stayed on the night in the farm house wi th the deceased but he failed to give any explanation as to under what circumsta nces deceased sustained multiple cut injuries resulting his death, which provide s missing link in the chain of circumstances. (cid:29) 16. While considering the incriminating circumstances, which the learned tr ial Court has relied upon, it needs to be noted that so far as the confession of the accused, made to PW5 and PW6, are concerned, the same is inadmissible in la w inasmuch as the confession was admittedly made, while the accused was in the c ustody of the police. Similarly, the evidence given to the effect that the accus ed had confessed his guilt to the police was also inadmissible in law and ought not to have been considered against the accused-appellant. 17. Coming to the dao, which is alleged to be the weapon of offence, there i s really nothing on record to show that the said dao was the weapon of offence i nasmuch as no statement of the accused preceding the recovery and seizure of the said dao was recorded by the police nor such a statement has been proved by the prosecution. 18. Though the investigating officer (PW1) has deposed that one Gopal More ( PW3) had stated before him that one dao was kept concealed in his house by accus ed Gopal Gogoi and, later on, the said dao was produced by Gopal Gogoi and seize d, it needs to be carefully noted that as far as PW3 is concerned, he has given no such evidence and prosecution did not even confront him by any previous state ment to them that he (PW3) had made such a statement before the police. The evid ence, therefore, given by the investigating officer, in this regard, cannot be s afely relied upon. The only evidence, which remains against the accused-appellant and surfa 19. ces unscathered is the fact that he was present, with Dimbeswar Gogoi (since dec eased), at the said farmhouse on the night of the occurrence. Because of the fac t that the accused-appellant was present in the said farmhouse on the night of t he occurrence, when Dimbeswar Gogoi was done to death, there is a fair amount of suspicion that it was the accused-appellant, who had killed Dimbeswar Gogoi. Su spicion, howsoever strong cannot, however, take the place of proof. 20. In the absence of any other incriminating piece of evidence, it was, in our considered view, wholly unsafe to hold it had been proved beyond reasonable doubt that the accused-appellant was guilty of having caused death of Dimbeswar Gogoi. 21. Situated thus, we are clearly of the view that the evidence, adduced by the prosecution, fell short of the standard of proof, which is demanded in a cri minal trial and, in the facts and attending circumstances of the present case, t he accused-appellant ought to have been accorded, at least, benefit of doubt. 22.
Decision
In the result and for the reasons discussed above, this appeal succeeds. The impugned conviction of the accused-appellant and the sentence passed agains t him by the judgment and order, under appeal, are hereby set aside. The accused -appellant is held not guilty of the offence under Section 302 IPC and he is acq uitted of the same under benefit of doubt. Let the accused-appellant be set at liberty, forthwith, unless he is req 23. uired to be detained in connection with any other case. 24. stance rendered to this Court. 25. Send back the LCR. Let the Amicus Curiae be paid a sum of Rs. 5,000/- for his valuable assi