High Court
Case Details
Crl.A. 62/2012 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA HON’BLE MR. JUSTICE L.S. JAMIR Heard Mr. B.M. Choudhury, learned counsel appearing for the appellants and Mr. B .J. Dutta, learned Addl. Public Prosecutor, Assam. [2]. This appeal is directed against the judgment and order dated 21.3.2012 p assed by the learned Session Judge of Darrang at Mangaldoi in Sessions Case No. 38(DM) 07 under Sections 301/201/34 IPC whereby the accused/appellants namely Ar up Jyoti Deka and Dhruba Jyoti Hazarika were convicted and sentenced to undergo imprisonment for life and to pay fine of Rs. 5,000/- each and in default to unde rgo Rigorous Imprisonment for 3 (three) months each under Section 302/34 IPC and also to undergo Rigorous Imprisonment for 3 (three) years and to pay fine of Rs . 1000/- each and in default to undergo 1(one) month Rigorous Imprisonment each. Both the sentences were to run concurrently. [3]. The case of the prosecution is that on 28.11.2005, one Tarini Saharia fi led an FIR before the officer-in-charge, Mangaldoi Police Station stating inter alia that around 6.30 p.m on 25.11.2005, his son Tapan Hazarika went out of his house to collect money that he had lent to their co-villager Dhruba Hazarika S/o Kamala Kanta Hazarika and has not returned home till the date of filing the FIR . Despite extensive search in the surrounding areas, he has not been able to tra ce out his son and the delay in filing the ejahar has been caused because of his continued search for his missing son. He, therefore, requested to take suitable actions on the matter. While the police was enquiring about the missing person, the dead body o f the missing person Tapan Saharia S/o Sri Tarini Saharia of Luzora Gaon, P.S. M angaldoi was recovered and, accordingly, Mangaldoi P.S. Case No. 374/05 under Se ctions 302/201 IPC was registered. After completion of investigation, chargesheet was filed against the acc [4]. used 1) Sri Chakradhar Deka, 2) Sri Dharanidhar Hazarika, 3) Sri Kamala Hazarika , 4) Sri Arupjyoti Deka, 5) Sri Dhruba Hazarika 6) Sri Bhaskarjyoti Deka under S ections 302/201/34 IPC. The accused Sri Bhaskar Deka was shown as absconder in t he chargesheet. The accused persons namely, Sri Chakradhar Deka, Sri Dharanidhar Hazarika, Sri Kamala Hazarika and Sri Bhaskar Jyoti Deka were acquitted by the learned trial Court as there was no iota of evidence against the aforesaid four accused persons. During the course of trial, the prosecution examined as many as 15 witne sses and the accused persons was examined under Section 313 CrPC. [5].
Legal Reasoning
PW1 Shri Tarini Saharia is the informant of the case. He stated that the deceased Tapan Saharia was his son and the incident took place about 1 ‰ years back which took place in the house of the accused Kamala Hazarika. The accused A rupjyoti Deka and Dhruba Hazarika owed an amount of Rs. 15,000/- to his son Tapa n Saharia and hence, he was called by the accused Kamala Hazarika to repay the l oan which was obtained from his son by accused Dhruba Hazarika as well as by acc used Arupjyoti Deka without executing any document for the said loan. After his son left for the house of the accused Kamala Hazarika, he was not traceable for 8/9 days and, thereafter, the dead body of his son Tapan Saharia was found nearb y Kulsi river which is used as graveyard. On being informed about recovery of th e dead body, police came to the spot and prepared inquest over the body of his d eceased son and was sent for post mortem examination to the Mangaldai Civil Hosp ital. In cross examination, he stated that he did not accompany his son Tapan Saharia to the house of the accused Kamala Hazarika. His son Tapan Saharia was taken out from his house by the accused Arupjyoti Deka and Dhruba Hazarika assuring him t o repay the loan. He also stated that he did not mention in his FIR that the acc used Arupjyoti Deka and Dhruba Hazarika had taken his son Tapan Saharia to their house to repay the loan nor did he mention about the loan amount.
Legal Reasoning
PW2 Shri Hari Chandra Barua stated that he did not see who caused the de [6]. ath of Tapan Saharia and he also cannot say how he died. During the course of in vestigation, the police prepared inquest of the deceased Tapan Saharia in his pr esence. After 10 days of the incident, the dead body of Tapan Saharia was found nearby Kulsi river at a graveyard. The police had also produced him before the j udicial Court for recording his statement under Section 164 CrPC. In cross examination, he stated that he heard Tapan Saharia had initiall y joined the outlawed ULFA and thereafter he surrendered and came in the mainstr eam. He also stated that he cannot say whether the villager caught hold of accus ed Kamala Hazarika in the market and then assaulted him. PW3 Shri Tankeswar Kalita stated that he cannot say how Tapan Saharia di [7]. ed and who killed him. The dead body of Tapan Saharia was found after 10/11 days of the incident on the bank of Kulsi river at the grave yard and the police pre pared inquest of the deceased. He was also produced before the Court for recordi ng his statement under Section 164 of the CrPC. In cross examination, the PW3 denied the entire suggestion that were put to him by the defence. [8]. PW4 Sri Kamaleswar Baruah stated that about two years ago at about 8.30 am, he saw the police recovering the dead body of Tapan Saharia by digging earth at their village. The place was covered by bushes where the dead body was recov ered. In cross examination, PW4 stated that the place where the dead body was found has been searched out by the villagers and he accompanied the public and l ater on they showed the place to police. [9]. PW5 Sri Kandarpa Adhikari S/o Late Padma Kanta Adhikari stated that he k new the deceased Tapan Saharia. About two years ago while he was sitting in the house of the deceased Tapan Saharia, he saw the accused Dhruba Hazarika and Arup Deka and within no time, he saw the deceased Tapan Saharia going out of his hou se alongwith the accused persons. Subsequently, he learnt after a week that Tapa n Saharia became untraceable. After about ten days of the incident, the village r assembled in their village temple to discuss about the matter and he was prese nt in the sitting. It was resolved that the villagers would watch the situation during the night of sitting and on the following morning, the villagers would tr y to find out Tapan Saharia by searching. After the meeting was over, some of th e villagers went out for search of one Kamala Hazarika, the father of the accuse d Dhruba Hazarika and they brought Kamala Hazarika to their village from Bordoul guri Chowk, which is about 5 kms from the village. On interrogation, Kamala Haza rika admitted that his son Dhruba Hazarika and accused Arup Deka son of Chakra D eka intentionally caused the death of Tapan Saharia. Thereafter, the body of Tap an Saharia was recovered from the river side jungle of Gasbari, which was kept i nside the earth. The police was informed and thereafter they recovered the dead body by digging earth there.The Magistrate recorded his statement under Section 164 CrPC. In cross examination, he stated that he did not state to the investigati ng officer that Tapan went out along with accused Dhruba and Arup while he was s itting in the house of Tapan. He also stated that he stated before the investiga ting officer that they suspected foul play by seeing the newly digging earth but he did not state before the investigating officer that suspecting that the son of Kamala Hazarika killed Tapan Saharia, the villagers set fire in the dwelling house and shop house of Kamala Hazarika nor did he state that Kamala Hazarika wa s caught at Bordoulguri Chowk by the villagers and brought him to the village an d that some persons assaulted Kamala Hazarika and made him senseless and the vil lagers damaged the house of accused Arup and tried to set fire in his house. He also stated that he did not state before the investigating officer that the poli ce recovered Kamala Hazarika in a dying state and put him into Civil Hospital. H e further denied the suggestions that were put to him by the defence. PW6 Shri Trailokya Baruah S/o Late Dambarudhar Baruah stated that the de [10]. ceased was his paternal aunts son and he had gone missing from his residence on 25.11.2005. On 4.12.2005 when the police recovered Tapan’s dead body about half kilometre away from the residence of the deceased, he was also present there. Pr ior to the recovery of the dead body of the deceased, Kamal Hazarika on the bank of Govt. Pond near the deceased residence, had admitted that accused Dhruba Haz arika and Arup Deka had killed Tapan Saharia in the presence of the public inclu ding himself. The accused Dhruba Hazarika is the son of accused Kamala Hazarika and accused Chaura Deka is the father of the accused Arup Deka and that a magist rate recorded his statement. In cross examination, he stated that he told the magistrate that a few y ouths including himself had taken accused Kamala Hazarika to the village after a pprehending him at Bardalguri. They had apprehended Kamala Hazarika after recove ry of Tapan’s dead body and he denied the other suggestions put to him by the de fence. [11]. PW7 Dr. Prasanta Goswami was serving as Senior Medical and Health Office r at Mangaldoi Civil Hospital on 5.12.2005. He conducted autopsy over the dead b ody of the deceased on requisition by the police and he found the following inju ries:- (cid:28)I. EXTERNAL APPEARANCE:- A dead body of a male, aged about 25 years, peetrification started, whol e body swollen, foul smelling, maggot found scrawled all over the dead body, bla ckening of the body from above down face congested, teeth exposed, eyes closed a nd swollen. Neck moves freely all around. Injuries: Rotten deep seated injury (laceration about 1 (cid:29) x 1 (cid:29) x 1 (cid:29) below left mast 3 (three) rotten lacerated injury about 1 (cid:29) each in size over occipital a (i) oid bone). (ii) rea. It is difficult to find due to peetrification. II. CRANIUM AND SPINAL CANAL:- (#) Fracture of 2nd and 3rd cervical vertebrae. Brain matter has dark fluid. Cervical spinal cord shows dark haemorrhegic fluid (old blood). Brain congested . All other internal organs, except lung were found healthy and the lung found c ongested. The injuries were antemortem in nature. (cid:29) In his opinion, death occured due to spinal shock and haemorrhage with f racture of the cervical vertebrae and injuries to cervical spinal cord. The defence declined to cross examine PW7. [12]. PW8 Sri Bhupen Deka S/o Sri Mukunda Deka stated that on 4.12.2005, he ca me to know that his elder brother Tapan Saharia had been missing since 25.11.200 5 from Gautam Saharia. On that day, while he was working in his field at about 6 /7 am, he saw a gathering of public near his working place and he proceeded to t ake stock of the situation. There he saw the dead body of Tapan Saharia being re covered from a hole by digging earth. At that time, he saw the police personnel there and they conducted inquest over the dead body in his presence and took his signature in the report. He also stated that accused Kamala Hazarika stated bef ore him that his son Dhruba Hazarika and Arup Deka caused death of Tapan Saharia and his statement was also recorded by the Magistrate. In cross examination, he stated that he did not state before the magistr ate that accused Kamala Hazarika stated before him that his son Dhruba Hazarika and another Arup Deka caused the death of Tapan Sahara and also he did not state before the police that the villagers caught hold of accused Kamala Hazarika at Bordoulguri market and brought him to their village and made him senseless by be ating and that the villagers destroyed the dwelling house and household goods be longing to the accused Arup Deka. He denied the other suggestions made to him by the defence. [13]. PW9 Sri Dwijen Deka S/o Chandra Kanta Deka stated that about two years a go, he saw a public gathering at Lojora and he went to take stock of the situati on where he saw the dead body of Tapan Saharia. The dead body was rotten and fou l smelling was coming out and the police conducted inquest over the dead body in his presence and took his signature in the inquest report. The defence declined to cross examine PW9. [14]. PW10 Sri Ananda Kumar Das S/o Sri Jogen Ch. Das was serving as Circle Of ficer-cum- Executive Magistrate in Mangaldai. He stated that on 8.12.2005, the D eputy Commissioner, Darrang, Mangaldai directed him to visit the spot of murder along with police. The police brought two accused persons along with them to the place of occurrence. During the time of their visit at the place of occurrence, the accused Sri Arup Jyoti Deka and Sri Dhruba Hazarika showed them the house w here the first altercation took place amongst them and the deceased person and a lso showed the place where they blew over the head of the deceased by means of a bucket. The accused persons also showed the field where they dragged the dead b ody and also showed him a bicycle which was in the pond and subsequently recover ed by other persons from the pond. They also stated that the bicycle belonged to the deceased and subsequently police took possession of the seized bicycle. In cross examination, PW10 stated that he visited the place at about 1.3 0/2 pm but he cannot say who accompanied him at the time of visiting those place s. He went to the place of occurrence by his official car but he cannot remember the registration number of the car. The police did not examine him regarding th e occurrence and he also did not say anything to the I.O regarding the occurrenc e which he found. [15]. PW11 Sri Nibedan Das Patowary S/o Shri Prasanna Kumar Das stated that on 4.12.2005, he was serving as Executive Magistrate at Mangaldoi and on that date , as directed by the Additional District Magistrate, he along with DSP(HQ), Mang aldoi visited Lojora for conducting inquest over the dead body of Tapan Saharia of village Lojora. The dead body was disintered and inquest was done. The dead body was attired with black sweater and black long pant. He could not find any i njury over the dead body. After the inquest, he prepared the inquest report whic h he identified as Exhibit-2 and Exhibit-2(5) as his signature. PW12 Sri Munmun Kalita S/o Sri Harnath Kalita stated that on 8.12.2005 a [16]. t about 2 pm, he was taking bath in their village Sarkari pond and at the time h e saw police personnel on the bank of the pond. On being called by the police pe rsonnel, he went there and saw a magistrate and also found accused Dhurba with t he police personnel. Thereafter, he lifted one bicycle from the water of the pon d on being shown by the accused Dhurba and the police and brought it to the bank of the pond. The police stated before him that the recovered bicycle belonged t o deceased Tapan Saharia. In cross examination, he stated that the police and magistrate told him showing the place of the pond wherefrom the bicycle was to be recovered and acco rdingly, he lifted the bicycle from under the water of the pond. At the time of recovery of the bicycle, there were many public but he cannot recall their names . The police also told him to observe the colour of the recovered bicycle and to ld him that he would have to state accordingly. [17]. PW13 Sri Gautam Saharia S/o Sri Tarani Saharia stated that on 8.12.2005 at about 2 pm, he went to the bank of their village Sarkari pond along with poli ce, Magistrate and accused Dhurba. The accused Dhurba showed the place in the po nd where he dropped the bicycle of deceased Tapan Saharia and accordingly the bi cycle was lifted by PW12 Munmun Kalita from under the water of the pond on being asked by the police and Magistrate to recover it. He also stated that he could recognise the bicycle and that it was the bicycle of deceased Tapan Saharia. In cross examination, PW13 stated that Tapan Saharia was his younger bro ther and the I.O recorded his statement. He stated that it is not the fact a PW1 2 Munmun Kalita recovered the bicycle from under the water of the pond on being shown by the accused Dhurba. PW14 Sri Kartik Baruah S/o Late Jogei Baruah stated that on 13.2.2006, h [18]. e was serving at Mangaldoi Police Station as attached Officer and on that date t he O.C of Mangaldoi P.S. entrusted him with the task of the remaining investigat ion left by his predecessor. During investigation, he arrested the accused Sri D haranidhar Hazarika and Chakradhar Deka who was later enlarged on anticipatory b ail. After completion of investigation, he submitted chargesheet against the six accused persons showing accused Bhaskar Deka as absconder. In cross examination, he stated that he did not examine any witness in t he case. [19]. PW15 Sri Bikesh Kumar Kalita S/o Sri Kailash Kalita stated that on 29.11 .2005, he was serving at Mangaldai Police Station as S.I of Police and on that d ate the O.C. of Mangaldai P.S. entrusted him with the task of investigation. He visited the place of occurrence and after causing necessary enquiry, he submitte d report to the O.C. During investigation, he examined witnesses under Section 1 61 CrPC and also made a prayer to Magistrate for causing examination of witnesse s under Section 164 CrPC. Inquest on the dead body of Tapan Kumar Saharia was ma de by the Executive Magistrate and thereafter, he sent the dead body to the Mang aldai Civil Hospital for post mortem examination. He arrested accused Dhrubajyot i Hazarika, Kamala Kanta Hazarika and Arupjyoti Deka. During interrogation, the accused persons namely-Arupjyoti Deka and Dhrubajyoti Hazarika stated how they c aused death of Tapan Saharia and they could show the bicycle of the deceased use d by him at the time of occurrence. He recorded their statements and thereafter the two accused persons led Executive Magistrate and him to Lozoragaon and showe d the place in a pond where they kept the bicycle in question. Thereafter, he ca used recovery of the bicycle from the pond and seized it through a seizure list. He handed over the case diary to O.C due to his transfer. In cross examination, he stated that in his report he mentioned the dead body of Tapan Saharia has been recovered. He also stated that he cannot say whe ther the dead body of the deceased was exhumed at Lozora field with the help of villagers or not. He was also present at the time of recovery of the dead body a nd he cannot recollect whether villagers were gathered at the place of occurrenc e prior to his arrival there. He also cannot say whether any note was taken or n ot in the diary as the case diary is not available on that date of deposition be fore the Court. He did not make any recovery memo of the bicycle in question and in Exhibit-9, he did not mention regarding the fact that accused Dhrubajyoti Ha zarika and Arupjyoti Deka stated before him that they will show him the place wh ere they kept bicycle of the deceased Tapan Saharia and also the place where and how they committed the offence. He did not take the signature of the Executive Magistrate and he also did not mention in Exhibit-9 that the Executive Magistrat e was present at the time of recovery of the bicycle. [19]. nied all the allegations made by the prosecution. [20]. The statements of PWs, 2, 5, 6 and 8 were also recorded under Section 164 Cr.P.C. [21]. The learned counsel for the appellant in support of his case has relied All the accused persons were examined under Section 313 CrPC and they de on the cases of:- (i) Rajiv Phukan and Anr Vs. State of Assam reported in 2009(2) GLT 414 .. 426. (iii) (ii) State of MP Vs. Mishrilal (DEAD) and Ors. Reported in (2003) 9 SCC Hari Charan Kurmi and Joga Hajam Vs. State of Bihar Reported in AIR 1964 SC 1184. [22]. It is in the evidence of PW 2 and PW 5 that the two accused persons had taken the deceased out of his house for repayment of the loan that they have ta ken. The defence has not been able to demolish the evidence of these two PWs. PWs. 5, 6 and 8 in their deposition had stated that Kamala Kanta Hazarik [23]. a, father of the accused Dhrubajyoti Hazarika admitted that his son Dhrubajyoti Hazarika and Arupjyoti Deka had killed the deceased. This extra judicial confes PW 12 had also stated that he had recovered the bicycle from the pond. O sion has also not been demolished by the defence. It is in the evidence of PW 10 that the said two accused had showed him [24]. the house where the first altercation took place, the place where they flew the head of the deceased person, the field where they drag the dead body and also s howed the bicycle which was in the pond and subsequently recovered by other pers ons. [25]. n being shown by the accused Dhrubajyoti Hazarika. [26] lace in the pond where he had dragged the bicycle of the deceased. [27]. It is in the evidence of PW 15 that the two accused had shown how they had caused the death of the deceased and that they can show the bicycle of the d eceased. There is corroboration in the evidence of the PWs. We find no reason to [28]. disbelief the evidence of the PW’s. Circumstantial evidence also leads towards t he accused persons, namely, Arupjyoti Deka and Dhrubajyoti Hazarika to have comm PW 13 had also stated that the accused Dhrubajyoti Hazarika showed the p itted the murder of the deceased. We have also considered the statements of the prosecution witnesses namely, PW 2, 3, 5, 6 and 8 which were recorded under sect ion 164 Cr.P.C. The defence has failed to demolish the case built up by the pros ecution against the two accused. In the absence of any doubt as regards the evid ence of the PWs we find no reason to interfere with the judgment and order dated 21.03.2012 passed by the learned Sessions Judge of Darrang at Mangaldoi in Sess ions Case No. 38(DM)/2007 under Sections 301/201/34 IPC sentencing the appellant s/accused Arupjyoti Deka and Dhrubajyoti Hazarika to undergo imprisonment for li fe and to pay a fine of Rs. 5,000/- each in default, to undergo R.I for 3 months . [29]. [30]. Accordingly, this Criminal Appeal is dismissed. Send down the LCR along with a copy of this judgment and order.