High Court
Case Details
CRL.A(J) 3/2010 BEFORE HON’BLE MR. JUSTICE K. SREEDHAR RAO HON’BLE MR. JUSTICE B. D. AGARWAL JUDGEMENT AND ORDER [ o r a l ] ( K Sreedhar Rao, J ) One Arnab Saha, a boy of 2‰ years is the deceased. One Smt. Sampita Saha (PW1) i s the mother of the deceased. One Sri Manash Saha (PW2) is the father of the dec eased. The accused and the deceased are distantly related in the sense that the grandfather of the deceased and the grandfather of the accused are the full brot hers and they were residing in the same campus. 2. The case of the prosecution is that on 25-09-2005, at about 8.00 p.m., t he accused took the deceased along with him, which was seen by PW1. After about an hour, the accused returned home alone, when PW1 enquired, he gave evasive rep ly. Search for Arnab Saha was made and the dead body of the deceased was traced and found on the next day at about 6.00 a.m. in a pond of their town.
Facts
3. The PW2 lodged a complaint before the police around 9.00 a.m. on 26-09-2 005, after tracing the dead body, alleging that some unknown persons have caused the murder of his son by pushing him in the pond. The First Information Report was registered and the investigation was taken up. The inquest (Panchanama) is h eld, the post mortem is conducted. The post mortem report discloses that the dea th is due to asphyxia, on account of drowning. On the basis of the version of PW 2, the accused came to be arrested. On completion of investigation, the final re port is filed, the accused is charged for offence punishable under Section 302 I PC. 4. In the evidence, before the trial Court, the PW1 has deposed to the last seen circumstances of accused taking her son along with him around 8.00 p.m. on 25-09-2005. At about 9.30 p.m. the accused returned alone. PW1 and PW2 attempte d to search their son and on the next day, they could trace the dead body in a p ond. 5. The post mortem report discloses that the death is homicidal. The trial Court, at para 31 has summarized the circumstances to base the conviction of the accused under Section 302, para 31 is, therefore, reproduced hereinbelow: In the case in hand, the following are the incriminating circumstances p (cid:28)31. ointing to the guilt of the accused person:- (i) b Saha @ Gulu in the courtyard in the evening on the fateful night. (ii) The accused Debojit Saha took away the deceased Arnab from the house for The accused Debojit Saha @ Bitu was found playing with the deceased Arna walk in the evening. The accused Bitu @ Debojit and deceased Arnab did not return till 8-30 p (iii) .m. in the night. (iv) ab was not with him. (v) At about 9-30 p.m. the accused Debojit Saha returned home alone, but Arn The accused Debojit Saha was found nearby the Cole Park just adjacent to the Padum Pukhuri (tank) on the fateful night. On the next day early morning the dead body of Arnab was found floating (vi) in the Padum Pukhuri. (vii) Time gap between the deceased was taken by the accused for walk, i.e. de ceased and accused were ’last seen together’and dead body of deceased was found floating in the Padum Pukhuri (tank) is so small that possibility of any person other than the accused Debojit Saha @ Bitu being the author of the crime becomes impossible. (viii) There is no missing link in the chain of circumstantial evidence and the circumstance of the case in hand are of conclusive nature and tendency pointing to the guilt of the accused Debajit and nobody else. (cid:29) 6. The accused is sentenced to life imprisonment, hence, this jail appeal.
Legal Reasoning
Upon thorough consideration of the facts and evidence, we find that the 7. prosecution case mainly based on last seen circumstances by PW1 and upon thoroug h consideration, we find that the last seen circumstances is incredible. Accordi ng to her version, the accused took the boy at around 8.00 p.m. and returned hom e at around 9.30 p.m. alone. After his return, the conduct of the accused appear s to be strange. As PW1 had seen the accused taking the boy, she did not enquire the accused. After tracing the dead body, a complaint with specific allegation mentioning the last seen circumstances, could have been made. The complaint is v ague and does not make any reference to the last seen circumstances. On the othe r hand, the complaint says that some unknown persons have taken the boy and thro wn his dead body into the pond. 8. The evidence of the Investigating Officer (PW18) discloses that PW1, in the statement recorded by him, does not refer the last seen circumstances. The e vidence of PW1, if read carefully, it becomes difficult to believe the version o f last seen circumstances, because, in the normal course, after their boy disapp eared, PW1 and PW2 ought to have make necessary inquiry from the accused and PW1 ought to have come to know about the last seen circumstances. The last seen cir cumstances appear to be the belated version. There appears to be no other incrim inating circumstances implicating the accused establishing the nexus of the accu sed with the crime. 9. The prosecution has also not established the motive for committing the c rime on the part of the accused. It may be in the statements under Section 313 C r.P.C., the accused has stated that on account of family dispute, he was falsely implicated, but that statement cannot be used by the prosecution as a motive fo r committing the crime.
Decision
10. In the above circumstances, the order of conviction and the sentence pas sed against the accused is held to be bad in law. The appeal is allowed. The acc used is acquitted. The accused is set at liberty, if he is not required to be de tained in connection with any other offences. 11. Communicate a copy of this order to the trial Court. 12. Let the Amicus Curiae be paid a sum of Rs. 7,000/- for her valuable assi stance rendered to this Court. The fee of the Amicus Curiae is to be paid by the State. 13. 14. osed of. Send back the LCR. With the above observations and directions, this appeal shall stand disp