High Court · 2012

The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 09.04.2001, at about, 8:45 P.M., as many 6 (six) persons, na mely, Suren Kalita, Niladhar kalita, Bipul Kalita, Girish Kalita, Parameswar Kal ita and Pamani Kalita, attacked, in a group, Bipin Kalita’s nephew, Deepak Kalit a, at the house of Girish Kalita, by lethal weapons causing injuries. The FIR, t he injured was, immediately, removed to Hajo Police Station, wherefrom the injur ed was taken to Hajo Primary Health Centre, where he was declared dead. Bipin K alita, then, lodged a First Information Report (in short, ’FIR’), on 09.04.2001 itself, at Hajo Police Station. Based on the said FIR, Hajo Police Station Case No. 66/2001, under Section 147/148/149/302 IPC, was registered.

3. Thereafter, police visited the place of occurrence, held inquest over th e dead body, examined the witnesses and, on completion of investigation, laid ch arge-sheet, under Section 302/34 IPC, against the two accused (i.e., the present accused-appellants), named in the FIR, namely, Suren Kalita and Lakshyadhar Kal ita @ Niladhar Kalita. 4. At the trial, when a charge, under Section 302 read with Section 34 IPC, was framed against the accused persons, they pleaded not guilty thereto.

5. In support of their case, prosecution examined as many as 10 (ten) witne sses. The accused persons were, then, examined under Section 313 CrPC and, in th eir examinations aforementioned, they denied that they had committed the offence , which was alleged to have been committed by them, the case of the defence bein g that of denial. No evidence was adduced by the defence. 6. Having, however, found the accused persons guilty of the offence, which they had stood charged with, learned trial Court convicted them accordingly and passed sentence against them as mentioned above. 7. We have heard Ms. S. K. Nargis, learned counsel for the accused-appellan ts. We have also heard Mr. K. A. Majumdar, learned Additional Public Prosecutor, Assam.

8. Let us, first, commence the determination of the merit of the present ap peal by taking into account the evidence of the informant, Bipin Kalita (PW1) an d determine the veracity of his evidence. According to this witness, deceased D eepak Kalita was his nephew and both the accused persons are his neighbours and that Deepak was having a love affair with Hiramoni Kalita, sister of accused Lak shyadhar Kalita, for the last 2/3 years. The further evidence of PW1 is that, o n the day of the occurrence, at about 8:00 P.M., when Deepak (since deceased) wa s watching television at his (PW1’s) house, accused Niladhar’s mother, Bimala Ka lita, called away Deepak and, about 10 minutes thereafter, he (PW1) heard someon e scolding in anger outside his house, whereupon he (PW1), his son, Balen Kalita (PW2), one Surat Kalita (PW3) and one Dhiren Kalita (PW5), went to the place of occurrence and saw accused Suren Kalita hitting Deepak on his shoulder by means of a spade and Deepak falling on the ground and, then, accused Suren hit Deepak also on his face by the said spade and accused Niladhar stabbed Deepak into the abdomen with a spear-like weapon and, on Deepak’s having cried out, the accused persons fled away.

9. It is noteworthy that it is in the evidence of PW1 that after the accuse d persons had fled away, their neighbour, Niranjan Sarma, shouted to bring water and cloth and, then, they, immediately, took the injured to Hajo Police Station and, from there, to a nearby hospital, where the doctor declared Deepak dead. It is also in the evidence of PW1 that the occurrence took place at the courtyar d of Girish Kalita. 10. It is the further evidence of PW1 that they brought the dead body back t o the police station and, in the meanwhile, both the accused persons surrendered at the police station and that inquest was held on the said dead body at the po lice station and the inquest report (Ext. 1) was prepared, he lodged Ejahar (Ext .2), the Ejahar having been written by Jagat Medhi. 11. PW1 has deposed that, while he was at the police station, he learnt that both the accused had led the police to the place of occurrence and, while he (P W1) was still at the police station, he found both the accused bringing the spea r and the spade, which the accused had used in the said occurrence. PW1 has als o deposed that besides Balen Kalita (PW1), Surat Kalita (PW3) and Dhiren Kalita (PW5) had witnessed the occurrence. 12. What is, now, important to note is that in his cross-examination, PW1 ha s admitted that the relation between the accused-persons’ family members, on the one hand, and Deepak (since deceased), on the other, was not good, because of a n affair, which Deepak had been carrying out with the said Hiramoni. PW1 has al so admitted, in his cross-examination, that he mentioned, in his Ejahar, that as many as 6 (six) persons were accused by him of having assaulted Deepak, but he has clarified that except the two accused-appellants, Suren and Niladhar, all ot her persons, named in the FIR, were standing at the place of occurrence. He (PW 1) has further admitted, in his cross-examination, that he did not mention, in h is Ejahar, that accused Suren had hit Deepak with spade and accused Niladhar had injured Deepak with spear. It is of paramount importance to note that PW1 has denied that he had n 13. ot stated before the police that accused Suren had injured Deepak with a spade a nd accused Niladhar had stabbed Deepak with a spear-like weapon. However, the I nvestigating Officer (PW9) has confirmed that that PW1 had not stated before him that the two accused, namely, Suren Kalita and Niladhar Kalita, along with Bipu l Kalita, Girish Kalita, Parameswar Kalita and Pamani Kalita had assaulted Deepa k Kalita by means of spade and spear. 14. Broadly in tune with the evidence of PW1, PW2 (Balen Kalita) has stated that Deepak was his father’s elder brother’s son and, on the day of the occurren ce, at about 8:20 P.M., when he (PW2), along with Deepak, was watching televisio n at his (PW2’s) house, accused Niladhar’s mother, Bimala alias Pamoli Kalita, called away Deepak and, after about 10 minutes, they heard raving and ranting at Girish Kalita’s courtyard, whereupon PW1, Suren Kalita and he (PW2) went there and saw accused, Suren Kalita, hacking Deepak on his neck by means of a spade an d Deepak falling down and Suren, then, gave a blow with the spade on the facial area of Deepak and accused Niladhar stabbed Deepak on his abdomen. It is in the evidence of PW2 that they were all nervous and, in the meanwhile, Niranjan Sarm a came there and asked them to bring water and, then, they took the injured to p olice station and, from there, to nearby primary health centre, where Deepak was declared dead, and, thereafter, they brought the dead body to the police statio n. It is also in the evidence of PW2 that the accused persons surrendered at th e police station, where PW2 and others were already present, and, then, police t ook both the accused persons and him (PW2) to the place of occurrence, police se ized the spade from under a granary on being shown by the accused, Suren, and po lice also seized a spear as shown by the accused from a abandoned house. 15. Though denied by this witness (PW2), the Investigating Officer (PW9) has confirmed that PW2 had stated before him that he (PW2) had seen the accused per sons, along with others, fleeing from the place of occurrence with the weapons o f offence. 16. As far as PW3 (Surat Kalita), is concerned, his evidence is in tune with the evidence of PW2, but the Investigating Officer has confirmed that PW3, too, had stated, during investigation, that he (PW3) had seen both the accused, alon g with others, fleeing away. 17. From a minute scrutiny of the evidence of PW1, PW2 and PW3, it becomes m ore than abundantly clear that though they had projected themselves, at the tria l, as eye-witnesses to the alleged occurrence, their previous statements, made t o the police, gave no indication at all that they had witnessed the occurrence o f assault on Deepak by the present two accused-appellants. In fact, the FIR (Ex t.2), which has been lodged by PW1, accuses not only the two accused-appellants, but also four other persons and their family members to have attacked Deepak an d caused grievous injuries on him. This apart, in the FIR, which PW1 (who has c laimed to be an eye-witness) has lodged, it has been clearly mentioned that PW1, PW2, PW3 and their family members were informed by their neighbours, who had wi tnessed the occurrence. The disclosure, which was so made in the FIR, thus, com pletely belies the version of the occurrence as depicted by PW1, PW2 and PW3. To put it a little differently, the FIR, which was the first disclosure to the police, did not depict PW1, PW2 and PW3 as eye-witnesses to the occurrence; rath er, these witnesses claimed to have been informed about the occurrence by their neighbours. Furthermore, the previous statements, made to the police by PW1, PW 2 and PW3, clearly indicate that they had not witnessed the occurrence, but had merely seen the accused running away from the place of occurrence. Coupled with the above, if has also surfaced from the evidence of PW1, P 18. W2 and PW3 that one of their neighbours, namely, Niranjan, was also present at, or had come to, the place of occurrence. However, this independent witness (Nir anjan Das) was not examined and non-examination of this witness constraints this Court to draw an inference, adverse to the prosecution, the inference being tha t had this independent witness been examined, his evidence would have not suppor ted the evidence of PW1, PW2 and PW3 and, that is why, Niranjan Das was not exam ined as a witness. 19. So far as PW4 is concerned, his evidence is to the effect that he has a pharmacy in front of Hajo Hospital and, on the day of the occurrence, at about 8 :00/8:30 P.M., while he was present at his pharmacy, the injured was brought to the hospital, many people gathered there and he, too, went there to have a look and saw the injured person with an injury on the forehead and about half-an-hour thereafter, the injured died and, in the meanwhile, he heard that the persons, who had inflicted injury, had surrendered and he went to the police station to h ave a look of the persons, but he saw only one person. This witness, however, c ould not say as to who was the person, whom he (PW4) had seen at the police stat ion. 20. In his cross-examination, PW4 has clearly stated that the police had bea ten the accused persons. It is also in the evidence of PW4 that the police took him and an accused person to the place of occurrence and police seized a spade a nd a spear and obtained his (PW4) signatures on seizure lists, Ext. 3 and 4 bein g the seizure lists and Ext. 3(1) and 4(1) being his signatures. It is to be no ted, in this regard, that it is abundantly clear from the evidence of PW4 that h e neither saw any recovery of any of the said weapons or the seizure thereof. T hus, the evidence of PW4 does not advance the case of the prosecution. 21. Turning to the evidence of PW5, we notice that, according to this witnes s (Dhiren Kalita), cousin of the deceased, Deepak Kalita, on the night of the oc currence, he was watching television at the house of PW1 and that Balen Kalita ( PW2) and Surat Kalita (PW3) were also there. While they were so watching the tel evision, accused Niladhar’s mother, Pamoli Kalita, called Deepak away and, about 15 minutes thereafter, he heard hue and cry outside that Deepak had died, where upon they all went to Girish Kalita’s courtyard, where Deepak was found lying in jured and he saw Suren Kalita running away with a spade in his hand and that he also saw accused Leeladhar fleeing away. It is also in the evidence of PW5 that the injured was taken to Hajo Police Station where from the police sent the inj ured to Hajo Primary Health Centre for treatment, but the injured was declared d ead and, then, the dead body was brought back to the police station and, at the police station, he came to know that, in the meanwhile, the police had arrested the accused. What is, now, important to note is that, according to PW5, both the accu 22. sed had told the police that they had assaulted Deepak with spade, stabbed him w ith spear and killed him and that both the accused took the police to the house of Girish Kalita, showed the police the place of occurrence, accused Suren Kalit a produced a spade from a granary, police seized the same, accused Niladhar took out a spear from an abandoned house of Girish Kalita and handed over the spear to the police, Ext. 4 being the Seizure list in respect of the seizure of the sp ear and Ext. 3 being the Seizure list in respect of the seizure of the spade. In his cross-examination, PW5 has admitted that, at the time of the occu 23. rrence, a rehearsal for Bihu dance was in progress at Girish Kalita’s house on t he occasion of Bihu festival, but this witness denied that Deepak had gone there and that when he (Deepak) was at Girish Kalita’ house, the members of the publi c had beaten him. 24. It is important to note that neither the spear nor the spade, which had been seized by the police, was sent for serological test and there is no evidenc e to show that these were the weapons of offence. This apart, though PW4 is a w itness to the seizure, he has clearly stated that the police had beaten the accu sed persons and that he was merely asked to sign on the said seizure lists. 25. As far as PW6 is concerned, his evidence is not of much importance inasm uch as he has merely deposed that around four years back the Officer-in-Charge, Hajo Police Station called him and showed him two persons at the police station, who stated before the police that they had killed one person. PW6 has clearly deposed that he does not know the two accused persons. This witness has further deposed that the two accused persons, accompanied by the police and PW6, went t o the village and showed one spade and one spear and, accordingly, those materia ls were seized by the police, which are Ext. 4 and Ext. 3. 26. From the evidence of PW4 and PW3, it is clear that the seizure list was prepared at the police station inasmuch as the PW4 and PW6 did not even know the place from where the recovery of the said two weapons had been made and whether any of the accused-appellants had helped in the recovery of the seized weapons. In such circumstances, the seizure of the said two weapons cannot be safely re lied upon as seizure having been made pursuant to the production of the weapons by the two accused persons. 27. The evidence of PW7, who is also a witness of the said seizure, does not improve the case of the prosecution at all inasmuch as he also has stated that when he, accompanied by one Bakul Kalita, was returning home from attending Puja , they were called to the police station by the Officer-in-Charge, Hajo Police S tation, and they saw there a dead body and two persons and, thereafter, the poli ce took the accused persons to their house and accused Suren Kalita produced a s pade and the other accused produced a spear and they all came back to the police station. Police, then, seized the spade and the spear and his (PW7’s) signatur e was obtained on the seizure lists, i.e., Ext. 3 and Ext. 4. In fact, in his c ross-examination, PW7 stated that he did not know as to what had been written in Ext. 3 and Ext. 4.

28. Coming to the medical evidence on record, we find that according to the evidence of the doctor (PW8), who, admittedly, performed the post mortem examina tion on the dead body of Deepak Kalita, on 10.04.2001, found as follows: (cid:28)1. One incised wound, 11 cm X 2 cm X bone deep over the right side of the face obliquely placed, extending from outer border of the right eyebrow up to the mid dle of upper lip. The underlying bones viz. right supraorbital ridge, part of t he orbit, maxilla were incised partly. He right eyeball was missing. The Ala ( lower part of right side of nose) was also incised partly. 2. One incised wound, 8 cm X 4 cm X 4cm deep on back of head and upper part of n eck slightly obliquely placed, having beveling at the upper margin with skin, mu scles and 3rd cervical vertebra partially incised. 3. One incised wound 2 cm X 1 cm X scalp deep present on the right side of foreh ead 1 cm above the right eye-brow and 1 cm right to midline placed transversely. 4. One incised wound 3 cm X 1 cm X muscle deep on the front of the neck 8 cm abo ve the suprasternal notch on the midline, transversely placed. 5. Incised wound 2 cm X 1 cm X muscle deep on right side of chest 15 cm below su prasternal notch, 1 cm right to midline. 6. Incised wound 1 cm X 0.5 cm X muscle deep on epigastrium of abdomen on midlin e. 7. Incised wound 1 cm X 0.5 cm X muscle deep on upper part of abdomen 5 cm left to injury No. 6. 8. Incised would 1 cm X 1.5 cm X muscle deep on right side of upper abdomen, 1 c m right to midline and 7 cm above umbilicus, placed obliquely. All other organs were found healthy and pale. Both lungs were healthy and pale. Heart was heal thy and chambers were empty. Stomach was healthy and pale containing about 50 g rams of clotted blood. Brain was healthy and pale. Liver was lacerated with in jury 3 cm X 0.5 cm on the diaphragmatic surface of right lobe. Organs of genera tion were healthy and pale. Opinion: Death was due to shock and haemorrhage resulting from the injuries desc ribed in the report. All injuries were ante mortem and caused by heavy, sharp-c utting weapon and homicidal in nature. Approximate time since death was in betw een 12 to 24 hours. (cid:29)

29. In the opinion of the doctor (PW8), death was due to shock and haemorrha ge resulting from the injuries described above, all the injuries being ante mort em and homicidal in nature and the same were caused by heavy sharp-cutting weapo n. 30. From the medical evidence on record, though it is clear that Deepak had been assaulted, injured and killed, the evidence of the persons, who have been e xamined as eye-witnesses, do not, for the reasons which we have discussed above, inspire confidence. It appears to have escaped the attention of the learned tr ial Court that the previous statements of these witnesses were wholly inconsiste nt with their evidence given in the Court and that even the contents of the FIR bely the evidence given by PW1, PW2, PW3 and PW5, who are all members of the sam e family, more particularly, when we notice that the FIR clearly stated that the family members of Deepak were informed by the neighbours about the occurrence, but none of the neighbours, including Niranjan Das, has been examined. Coupled with this, the recovery of the alleged weapons, at the instance of the accused, has also not been convincingly proved as there is no evidence to show that these weapons were used in causing the injuries on the person of the said deceased in asmuch as these weapons, as already indicated above, were not put to serological test.

31. What crystallizes from the above discussion is that the evidence, relied upon by the learned trial Court, was grossly inadequate and wholly unsafe to pl ace reliance upon to found conviction of the accused-appellants out of the six a ccused named in the FIR. 32. Situated thus, we are of the considered view that the evidence, adduced by the prosecution, was not adequate to confidently and boldly hold that the acc used-appellants were the ones, who had assaulted Deepak and caused his death. I n the light of such a nature of evidence on record, the learned trial Court coul d not have convicted the accused-appellants and the accused-appellants ought to have, therefore, given, at least, benefit of doubt. The conviction of the accus ed-appellants and the sentences, passed against them, cannot, therefore, be sust ained. 33. Because of what have been discussed and pointed out above, this appeal s ucceeds. The impugned judgment and order, dated 03.04.2007, aforementioned shall accordingly stand set aside. The accused-appellants are hereby held not guilty of the offence charged with and they are acquitted of the same under benefit of doubt.

34. of. 35. With the above observations and directions, this appeal stands disposed Send back the LCR.