High Court
Case Details
Crl.A. 249/2012 BEFORE HON’BLE MR JUSTICE T.VAIPHEI AND HON’BLE MR JUSTICE P.K.SAIKIA ( P.K. Saikia,J ) In this appeal, the judgment and order dated 21.07.2012 passed by the Additional Sessions Judge FTC, Bongaigaon in sessions case No. 90(A)/2007 convicting Shri Bistu Rava of offence under section 302 IPC and sentencing him to imprisonment f or life and to pay a fine of Rs. 2000/- in default to undergo Rigorous Imprisonm ent for another 2 months has been called into question. 1. Being aggrieved by and dissatisfaction with this aforesaid judgment S ri, Bistu Rava, appellant herein, who would be referred to as accused person her einafter, preferred this appeal citing several infirmities in the judgment impug ned in this appeal. 2. The brief facts which have emerged during the trial and which are nece ssary for disposal for the present appeal are that on 01.06.2006 at about 6.30/7 .00 am, accused Bistu Rava, killed one Landuri Rabha subjecting her to blows wit h dao, a sharp weapon, causing her instantaneous death in her own house. It has been alleged that a long standing land dispute between Landeswar Rabha, Golak Ra bah and Tunu Rabha, on one side and the deceased and her family, on other side, was suspected to be reason for which aforesaid person was killed. 3. An FIR to that effect on being lodged with in-charge, North Salmara po lice out post on the same day at about 8.45 am, I.C thereof, made a GD entry and forwarded the FIR to the O.C Abhayapuri Police Station for registering a case a nd to take action in accordance with law. On the receipt of the FIR, aforesaid, O.C Abhayapuri Police Station registered a case under section 448/302 IPC and o rdered I.C ,North Salmara Police out post to take up the investigation.
Legal Reasoning
4. Being so entrusted with the investigation of the case, Sri Mathura Borka kti, I.C North Salmara police out post visited the place of occurrence, conducte d an inquest on the dead body and sent the same to the hospital for post mortem examination. During the course of investigation, the I.O examined the witnesses, formally arrested the accused Bistu Rabha, who is stated to have surrendered be fore the I.C North Salmara Police Out Post on the same day in the morning. 5. He also seized a dao allegedly used in the commission of offence on bein g shown and produced by accused person. A bicycle which was used by the accused in coming to the aforesaid police outpost on that day was also seized and on doi ng other needful, he submitted the charge sheet u/s 448/302 IPC against the accu sed appellant as well as (i) Tarun Rava and (ii) Lankeswar Raba and Golak Rava, since acquitted and forwarded them to the court to stand trial. 6. The Magistrate before whom the charge sheet was so laid committed the ca se to the court of Sessions at Bongaigaon, since the offence under section 302 I PC is exclusively triable by the court of Sessions. Learned Sessions Judge, Bong aigaon, on the receipt of the case, on commitment, transferred the case to the f ile of Additional Sessions Judge, FTC, Bongaigaon for disposal in accordance wit h law. 7. Learned Additional Sessions Judge, FTC, Bongaigaon on the receipt of the case on transfer and on hearing the learned counsel for the parties, framed cha rges under section 448/302/34 IPC against aforesaid four accused persons includi ng appellant herein and charges, so framed, on being read over and explained to them, the accused persons pleaded not guilty and claim to tried. 8. During trial, the prosecution has examined as many as 14 witnesses inclu ding the informant, the Medical Officer and the I.O and on the conclusion of the trial and on hearing the arguments, advanced by the parties, learned trial cour t while acquitting all other accused persons save and except accused Bistu Rava, convicted the later of offence under section 302 IPC and sentenced him to punis hment as aforesaid. It is that judgment which has been challenged in this presen t appeal on grounds more than one. 9. Sri, Kanak Sharma, learned counsel for the appellant, has contended that the judgment of the trial court is unsustainable in law since it suffers from s everal infirmities of extremely serious nature. According to him, this case is e ntirely founded on circumstantial evidences. But none of the circumstances, so r elied on, can be said to have been proved, far less such circumstances making a chain of events unbreakable anywhere leading to lone and sole conclusion that ac cused, and none else, had killed the deceased on the day in question. In that connection, it has been contended that circumstances, relied o 10. n, are (i) the alleged surrendered of the accused before the police just after t he incident in question. (ii) the seizure of dao purportedly used in commission of offence from the house of accused person (iii) the seizure of such dao on bei ng shown and produced by accused person on the basis of his statement which he r eportedly made while in police custody, (iv) the seizure of bicycle from the acc used person at the police station soon after the aforesaid incident and (v) a lo ng standing land dispute between the deceased and accused persons. 11. Since none of those circumstances has been established by the prosecutio n, it cannot be said that the accused, and none the else, was the author of the crime in question. He therefore, urges to this court to acquit the accused perso n of offence under section 302 IPC on setting aside the judgment of the trial co urt which is questioned in this appeal. 12. Controverting the above arguments, advanced from the side of learned c ounsel for the appellant, Smt. S. Jahan, learned Additional Public Prosecutor submits that the prosecution has proved all those circumstances beyond all reaso nable doubts and these circumstances together form an unbreakable chain of event s which leads anyone to the irresistible conclusion that the accused was the aut hor of the crime in question. That being the position, the learned trial court h ad rightly convicted the accused of offence under section 302 IPC and as such, t he present appeal is liable to be dismissed for want of merit. 13. We have considered the rival submissions having regards to the materi als on record. However, before we proceed further, we find it necessary to have a look at the evidence on record and the evidence of Doctor is first taken up fo r consideration. Dr. Nava Kr. Das, who conducted the autopsy on the dead body, w as examined as PW-9. According to him, on 01.06.2006, he was posted on Boythamar i Public Health Center. A deep cut injury seen - extending from chin of mandible to the middle o 14. On that day, he conducted the post mortem examination on the dead body of one Landuri Rabha on police requisition and found the following: EXTERNAL APPEARANCE- A female body of average built of around fifty years of age. WOOUNDS POSITION AD CHARACTER- 1. f the neck on its anterior aspect of about 8’’ in length and 2’’ in depth. 2. n the base of the skull on left side. 3. CRANIUM AND SPINAL CANAL:- 1. . bone. A deep cut injury of about five inch in length and three inch in depth o Scalp - Intact, Skull- Normal, Vertebrae- open of the 1’’ Cervical V Two small size bruises on forehead. Injury - Deep cut injury on enterior neck muscles. Fracture - Open fracture of the mandible bone. Open fracture of 1’’ Cer Membrane- it was intact and congested. Brain and spinal cord - Brain was intact and congested. Spinal c Walls ribs and cartilages were intact and normal. Pleurae- Normal and congested. Larynx and trachea- Laceration. Right lung - Normal and congested. Left lung - Normal and congested. Pericar (dium) - Normal and congested. Heart - Normal and congested. Vessels - Normal and congested. 2. 3. ord was lacerated at the region of 1’’ Cervical V. none. THORAX: 1. 2. 3. 4. 5. 6. 7. 8. MUSCLES, BONES AND JOINTS - 1. 2. vical V. bone. ABDOMEN: 1. 2. 3. s normal. 4. 5. 6. al matter. 7. 8. 9. 10. 11. Doctor opined that the cause of death was (cid:28)Shock and Haemorrhage (cid:29) occasioned by the injuries, she sustained on her body. Exhibit -3 is the post mortem report. Exhibit -3 (1) is his signature. Exhibit - 3 (2) is the signature of the joint Director of health service. Walls - Normal. Peritoneum - Normal and congested. Mouth, pharynx, esophagus- Mouth and Pharynx was lacerated, esophagus wa Stomach and its contents - normal and containing food material. Small intestine and its contents - Normal, containing food material. Large intestine and its contents -normal, distal end and containing faec Bladder - normal containing little amount of urine. Organs of generation, external and internal - Normal. Liver - congested and normal. Spleen - Normal and congested. Kidneys - Normal and congested. 15. We have already found that the victim died on 1st of June, 2006 in the morning and she died in her own residence. There is also no dispute over the fact that her death was homicidal in nature and such homicidal death was oc casioned by ante mortem cut wounds which were found inflicted on the neck and he ad of the deceased. 16. Now, the question is who occasioned the death of the deceased on 1st of Ju ne, 2006 in the morning. The prosecution contends that author of such crime was none other than the accused/appellant herein. In order to make out such allegati on, the prosecution has relied on several circumstances, which according to pros ecution, have conclusively established that the accused had killed the deceased on the morning in question. 17. In order to know how far such allegation is true, we, now, propose to scrutinize the evidence of non-official witnesses. Smt Pania Rabha, nephew of t he deceased, was examined as PW -1. He is heard saying that on 01.06.2006 while he was ploughing his land, he was reported by his brother Bainya Rava that accus ed Bistu Rabha had killed his paternal aunt Landuri Rabha. Being so informed, he went to the house of the deceased and saw her lying on the ground in a pool of blood. He also noticed cut injuries on the back of the neck of the deceased. In the meantime, police was informed. 18. Police came to the place of occurrence and took the dead body to the hospital. He, thereafter, lodged an FIR with police which he proved as Exhibit- 1. Towards the evening, police again came to the house of the accused person and on being produced by wife of the accused person, the police seized a dao on the strength of seizure list, Exhibit -2. According to him, a very old land dispute had prompted the accused kill his aunt. In his cross-examination, PW 1 has stat ed that deceased and the accused are related to each other. 19. PW 2 Sri Lohit Rava is a neighbour of the deceased. According to him , he learnt about the death of deceased from some of his neighbors. Being so inf ormed, he went to the place of occurrence and saw the dead body of Landuri Rabha lying on the ground in the kitchen. He also noticed 2/3 cut injuries on the bac k of the neck of the deceased. 20. Some time thereafter, Police came to the place of occurrence and took the dead body to the hospital. He also deposes that a land dispute had caused t he accused to kill the deceased. PW 3 Sri, Hiren Rava, PW -6 Sri Krishna Kanta R ava, PW 7 Bimala Bala Rava and PW-8 Mangal Singh Rabha depose that they did not witness the incident in question but learnt about the same from other people. On arriving at the place of occurrence, they saw deceased lying on t 21. he ground in a pool of blood in her kitchen. PW-6 further states that police rec overed a dao form the house of accused person on the strength of Seizure list Ex hibit-2. 22. PW 4 Diganta Rava, deposes that on the fateful day at about 8.00 a.m , he went to the place of occurrence. He came to such place on hearing that a wo man was killed in her own house. On arriving at such place, he found a woman lyi ng dead in her kitchen with injuries on her body. Police was already there when he arrived at such place which conducted an inquest on the dead body. In his cr oss examination, he has stated that learnt about the incident from one Pipori Ra va. 23. PW-10 Smt. Panche bala Rava deposes that on the fateful day, she came to the place of occurrence on getting information that the deceased was killed. On arriving at such place, she saw the deceased lying dead inside her house in a pool of blood. In the meantime, the accused surrendered before the police. PW- 10 was, however, declared hostile by the prosecution. 24. This brings us the testimonies of police officials who are PW-11, PW- 12, PW-13 and PW-14. PW-11 Sailendra Kalita, PW-12 Atowar Rahman, both police co nstable, depose that on the fateful day, at about 7.30 to 8.00 a.m, while they w ere doing duty at Abhayapuri Police Station, the accused came there on a bicycle and informed them that he killed a woman. PW-13 Bhupendra Nath Das, S.I of police station also states that on 25. 01.06.2006, while he was working as Office-in-Charge in Abhayapuri Police Statio n, the accused came to the such police station on a bicycle and told him that he killed a woman following a quarrel with her. He also told them that he killed t he woman with a dao which he left at his house. Since the place of occurrence fe ll within the territorial jurisdiction of North Salmara police out post, he repo rted the matter to the I.C., North Salmara police out post, over phone. Thereafter, same day, one Pania Rabha lodged an FIR. On the basis of 26. such FIR, (Ext-1), he registered a case vide Abhayapuri Police Station case No. 135/06 under sections 448/302 of IPC. In his cross examination, he has stated th at he did not make any prayer before the court to record the confessional statem ent of the accused person. 27. PW-14 is Sri Mathura Brkakti is a S.I. of police. According to him, o n 01.06.2006, he was posted at I.C of North Salmara Police out post. On that day , he received a information regarding death of a woman, namely Londuri Rabha, wh o was said to have been killed by one Bistu Rabha. Having received the informati on he made a GD entry vide North Salmara Police out Post GD entry No. 3/06 and r ushed to the place of the occurrence. 28. While he was so away from the police out post, the accused came there and surrendered before the Officers present at such police out post at that poi nt of time. On returning to the outpost, he seized a bicycle which was said to h ave been used by the accused person in coming to such police out post. During th e course of investigation, he also prepared the sketch map of the place of occur rence and seized some documents on the strength of seizure list Ext-7. He also h ad the statement of Jina Roy, Namita Rabha, and Munsi Rabha, recorded by Magistr ate. 29. Above in the evidence on record, let us see how far such evidence make out the allegation leveled against the accused person. We have already found th at nobody saw the accused killing deceased and as such, the prosecution has reli ed on a series of circumstances to make out the charge, brought against the accu sed person.
Decision
30. One of the most important circumstances on which prosecution had place d enormous reliance is the surrendering of the accused person before the police just after the alleged incident. Let us see, how far such circumstances stand es tablished in view of the above materials on record. On a very careful perusal of evidence of police officers, more particularly PW -11, PW-12 and PW -13, it wou ld appear clear that just after the alleged incident, the accused went to Abhaya puri Police station on a bicycle and handed himself over to the police. Accordin g to them, the bicycle which the accused used in coming to aforesaid police stat ion was also seized by police on the strength of seizure list Ext-3. 31. Very importantly, PW-14 who was the Officer-in-Charge of North Salmara Police out Post during time relevant has also stated that on the fateful day, t he accused surrendered before the police at North Salmara police outpost. He too states that the accused went to such police outpost on a bicycle which he seize d during the course of investigation. 32. Thus the evidence of PW11, 12, and PW-13, on one side and the eviden ce of PW 14 on another side depicted two different stories as far as accused the surrendering before the police on the date of incident is concerned. If we beli eve the PW 11, PW 12, PW 13, the accused went to the Abhayapuri Police Station o n a bicycle and surrendered there. 33. Very interestingly, PW 14 too claimed that the accused surrendered n ot before the police at Abhyapuri Police station but before the officials at Nor th Salmara Police Outpost. Such contradictory evidence on a matter as vital as t he surrendering of the accused before the police just after the alleged incident shattered the very basis of prosecution claim that the accused had surrendered before the police after the incident in question. 34. The prosecution has also relied on some other circumstances to make o ut the allegations brought against the accused person. One of such circumstances is the recovery of dao, reportedly used in killing the deceased. The further cl aim of the prosecution was that such a dao was recovered on the basis of stateme nt, made by the accused to the police while he was in custody. In that connecti on, the prosecution has relied on the testimonies of PW 14 as well as seizure li st Ext-2. However, in his evidence, PW 14 did not utter a word that whilst he w 35. as in police custody, the accused gave him a statement that he kept the dao used in the commission of the crime in concealment, far less police recovering a dao from the place of concealment on the basis of statement made by the accused per son. Quite contrary to it, in his evidence, PW-13 states that while in custody, the accused made a statement to the fact that he left the dao used in committing the crime in question inside his house. 36. But he frankly admitted that he did not record such statements sinc e he did not investigate the case under consideration. Such revelations make the prosecution case on this count equally doubtful. Such doubt increases manifolds since nowhere in the seizure list it has been stated that the police recovered the dao pursuant to statement made by accused whilst in police custody. These in consistencies on the point of recovery of dao make the prosecution case wholly u nreliable. In his evidence, PW 1 has stated that dao was recovered by police on 37. being produced by wife of the accused person. On the other hand PW 3 has stated that police recovered the dao from the house of accused person but he did not ut ter any word that such dao was recovered on being produced by accused person. Su ch evidence makes the prosecution’s claim that dao was recovered on the basis of discovery statement made by the accused person more and more doubtful. 38. The other circumstances relied on by the prosecution is a very old l and dispute between the deceased and the accused person. Though the prosecution has examined as many as nine non-official witnesses yet none of them could convi ncingly establish that there was any serious land dispute between the deceased a nd the accused/appellant. Being so, the prosecution claim that a long standing l and dispute had motivated the accused to commit the crime is also found unreliab le. 39. The prosecution also contends that the bicycle which the accused used on the day in question in going to the police station was seized and seizure of such bicycle just after the alleged incident is one more testimony of the accus ed being the author of the crime under consideration. This is far from the truth . 40. We have already found that there are two stories on the point of sur rendering of the accused before the police after the incident in question. One o f the stories above reveals that the accused surrendered before the police at Ab hayapuri police station. On the other hand, other story went on to say that the accused surrendered before the North Salmara Police outpost only. Such contradictory evidence again makes it impossible for this court 41. to conclude that accused really surrendered before the police on covering the sp ace between his house and the police station/police outpost with a bicycle. That being so, the prosecution claim that the accused went to the police station/out post on a bicycle which police seized soon after the alleged incident is also fo und to be equally away from truth. In view of the above, we are of the opinion that prosecution could no 42. t make out any of the circumstances, aforementioned, requiring this court to hol d an unblemished view that accused, and none else, had killed the deceased on th e day in question. 43. Consequently, the decision of the learned trial court holding the acc used guilty of offence under section 302 IPC is found unsustainable in law and a s such, the judgment of the trial court is liable to be interfered with. 44. In the result, the judgment of the trial court is set aside and accu sed is acquitted of offence under section 302 IPC and is set at liberty forthwit h. 45. We hereby award a sum of Rs.1,00,000/-(One Lakh) as compensation to the family members of the deceased in view of Section 357-A of the Code of Crim inal Procedure, 1973. The Government of Assam is directed to pay compensation a mount of Rs.1,00,000/- (One Lakh) only to the wife of the victim. The Government shall deposit the compensation amount in the Office of the learned District Jud ge, Bongaigaon within a period of 2 (two) months from the date of receipt of a copy of this judgment. On receipt of the money the same shall be disbursed to th e legal heirs of the deceased on proper identification and after obtaining prope r receipt. 46. Return the LCR.