High Court · 2012

Aggrieved by the said conviction and sentence, the convicted per [4] We have heard Mr. N. Ahmed, learned Amicus Curiae, appearing for the appellants and Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, appearin g for the State-respondent. [5] The prosecution case, as revealed at the trial, in brief, may be stated as follows: (i) Smti Sabita, daughter of Shri Kalicharan Kaiborta @ Kandura Kai borta (since deceased) was given marriage to Shri Bhaben Kaiborta @ Dhonti (here inafter called the deceased). Due to certain family discord, Smti Sabita was st aying in her father’s house. On 21.09.1999, at about 3.00 p.m., her husband i.e. the deceased, alongwith Shri Milon Mazumdar (PW 1) and Shri Chandra Kaibarta (P W 3), visited his said father-in-law’s house for the purpose of taking his wife to his home. On being asked by the deceased as his wife i.e. Smti Sabita, refus ed to go home, the deceased pulled her by hairs. At this time, Shri Kalicharan K aiborta, i.e. her father coming out with Hulabari (a piece of long bamboo with p ointed end on both sides), and picked up a quarrel with the deceased. In the mea ntime, appellant Shri Tilak Kaiborta stabbed the deceased with a dagger. Seeing the said incident, PWs 2 and 3, who were present in the place of occurrence, ru shed to the house of the deceased and gave the information about the incident. S ubsequently, the said two witnesses returned to the place of occurrence and foun d the deceased lying dead in the premises of Shri Kalicharan Kaiborta. Shri Thanuram Kaiborta (PW 2), brother of the deceased, coming t (ii) o know about the said incident, rushed to the place of occurrence and found the dead body of his brother lying in a pool of blood. Accordingly, he lodged the FI R (Ext. 3) with the police, on receipt of which, police registered Boko P.S. Cas e No. 173/1999, under Sections 302/34 IPC and launched investigation into the ma tter. [6] During the course of investigation, police arrested the accused persons, visited the place of occurrence, prepared a sketch map, conducted the i nquest (Ext. 1), sent the dead body for post-mortem examination, seized a Kukri vide seizure list (Ext. 2) from the place of occurrence and recorded the stateme nt of the witnesses. At the close of investigation, police submitted charge shee t under Sections 302/34 IPC against the accused persons. The offence, being excl usively triable by the court of sessions, the learned Judicial Magistrate, 2nd C lass, Guwahati committed the case to the court of Sessions. The learned Sessions Judge framed charge, under Section 302/34 IPC against the appellants. The charg e was read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. [7] In order to prove their case, prosecution examined, as many as, 10 (ten) witnesses, including the medical officer (PW 10), who performed the pos t-mortem examination and the investigating officers (PWs 8 and 9). At the close of the examination of prosecution witnesses, the accused persons were examined u nder Section 313 of the Code of Criminal Procedure (hereinafter called, the ’Cr. P.C.’), they denied the allegations, brought against them. No defence evidence has been adduced by the accused persons in this case. [8] Considering the evidence on record, the learned Sessions Judge h eld the appellants guilty of committing the offence of murder of the deceased an d accordingly convicted and sentenced them, as indicated hereinabove. [9] Mr. N. Ahmed, learned Amicus Curiae, appearing for the appellant , has submitted that there was no substantive and reliable evidence against the appellants and as such, the learned Sessions Judge committed error by recording the conviction and sentences. It has also been submitted that the prosecution f ailed to prove, beyond, all reasonable doubt, that the appellants, in furtheranc e of their common intention, had intentionally caused the death of the deceased and as such, the conviction and sentence recorded, under Section 302/34 IPC, is bad in the eye of law and that the same is not maintainable. [10] Refuting the said arguments, advanced by the learned Amicus Curi ae, appearing for the appellant; Mr. K.A. Mazumdar, learned Addl. Public Prosecu tor, appearing for the State respondent, has submitted that there is sufficient evidence, more particularly, the evidence of PWs 2 and 3 to show that the appell ants, in furtherance of their common intention, had assaulted the deceased, by m eans of spear and dagger, causing his death. The learned Additional Public Prose cutor has submitted that the prosecution version, regarding involvement of the a ppellants, has been substantially proved by the evidence, rendered by PWs 2 and 3 and that the learned Sessions Judge rightly convicted and sentenced the appell ants, as indicated above. [11] It is submitted, at the bar, that during the pendency of this ap peal, one of the appellants, namely, Shri Kalicharan Kaiborta @ Kandura Kaiborta has expired. Therefore, the appeal preferred by him stood abetted and according ly, the name of the appellant, Shri Kalicharan Kaiborta @ Kandura Kaiborta has b een deleted from the memo of appeal. [12] In order to appreciate the counter arguments, advanced by the le arned counsel, appearing for both the parties and to examine the correctness of the impugned judgment and order, we are required to examine, if the present appe llant, namely, Shri Tilak Kaiborta, in furtherance of his common intention, caus ed the death of the deceased, by inflicting fatal blows on him. The Medical Offi cer (PW-10), who performed the autopsy of the dead body of the deceased on 22.09 .1999, i.e. on the next day, found the following injuries: (cid:28)INJURIES: No. 1: One cut injury present on the forehead, right side, size 40 cm x 2cm x 1 cm deep. No. 2: One cut injury present on the scalp over the occipital bone, size 3 cm x 2cm x 1 cm deep. No. 3: One cut injury present on the scalp over the occipital bone situated 1cm below the injury No. 2 and size 3 cm x 2cm x 1cm deep. No. 4: One cut injury present on the scalp over the occipital bone situated 1.5 cm below the injury No. 3 and size 3cm x 2cm x 1 cm. No.5: One cut injury present on the right side of neck, middle part size 3 cm x 2 cm x muscle deep. No. 6: One cut injury present on the right shoulder size 3cm x 1 cm x 1 cm. No. 7: One stab wound present on the back of the chest size 2cm x 1 cm x chest c avity deep situated 3 cm left from mid vertebral line and 12cm below the 7th cer vical spine. No. 8: One stab injury present on the back of the chest size 2 cm x 1cm chest ca vity deep situated 5 cm below the injury No. 7 and 4 cm left from midline. No. 9: One cut injury present on the back of the chest left side 8 cm x 2cm x mu scle deep. No. 10: One cut injury present on the back of the abdomen, left side size 3 cm x 2 cm x muscle deep. No. 11: One cut injury present on the back of the abdomen, lift side, size 3 cm x 2cm x muscle. No. 12: One cut injury present on the right thumb, size 2 cm x 1 cm x muscle dee p (defence wound). No. 13: One cut injury present on the cleft of the right thumb and index finger size 2 cm x 2cm x muscle deep (defence wound). No. 14: One cut injury present on the left palm size 4 cm x 2 cm x muscle deep ( defence wound). (cid:29) The medical officer opined that the death of the deceased was caused due to shoc k and haemorrhage as a result of the injuries aforesaid. The medical report afor esaid reveals that the injuries were ante mortem, caused by sharp cutting pointe d weapon and homicidal in nature. The medical officer also opined that the death of the deceased was caused 24-36 hours prior to the post-mortem examination. Th e medical evidence aforesaid, indicates that the deceased died due to the injuri es, sustained by him. [13] Now the question is as to whether the appellants, in furtherance of their common intention had inflicted the said fatal blows. Admittedly, the w ife of the deceased was staying in her parent’s house and on the date of occurre nce, the deceased visited his father-in-law’s house for taking home his wife, i. e. the daughter of the appellant. Both PWs 1 and 2 clearly stated that, at the t ime of occurrence, they were present in the courtyard of the deceased’s father-i n-law’s house. Shri Milon Mazumdar, deposing as PW 1 clearly stated that when t [14] he deceased Shri Bhaben Kaibarta caught hold of his wife by her hair, Shri Kandu ra Kaiborta came out from the house with ’Jong’ (spear) in his hand. According to this witness, finding Shri Kandura Kaiborta with a spear, in his hand, he ran away towards his (PW1’s) house and thereafter, alongwith some villagers, return ed to the place of occurrence and found the deceased lying dead, in injured cond ition, in the courtyard of the appellant. [15] A careful perusal of the evidence of this witness reveals that h e did not see the appellant inflicting the dao blows on the deceased. What he s aw was that the deceased had caught hold of his wife by hair and the father-in-l aw of the deceased came out with a spear in his hand. His evidence does not indi cate that either Shri Kalicharan Kaiborta or Shri Tilak Kaiborta had inflicted t he injuries. In fact, PW 1 did not whisper anything about the involvement of Shr i Tilak Kaiborta. [16] PW 2 (Shri Thanuram Kaiborta) is the brother of the deceased. He did not see the occurrence. He rushed to the place of occurrence, on being info rmed by Shri Milon Mazudmar (PW 1). PW 2 stated that Shri Kalicharan Kaiborta ki lled the deceased but Shri Milon Mazudmar (PW 1) did not state that he had infor med PW 2 about the killing of the deceased. Hence we find no corroboration in the evidence of PW 1 and 2 on this point. [17] Shri Chandra Kaiborta claimed to be one of the eyewitnesses, dep osing as PW 3 stated, that he and Shri Millan Kaiborta had accompanied the decea sed to the house of the father-in-law of the deceased, that when the deceased ha d caught hold of his wife by hair, Shri Kalicharan Kaiborta came out with a hula bari (i.e. pointed piece of long bamboo) and got engaged in a quarrel with the d eceased. According to this witness, in the meantime, the appellant Shri Tilak Ka iborta had stabbed the deceased with dagger. He further stated that stated that he alongwith Shri Millan Kaiborta rushed to the house of the deceased and therea fter returned to the place of occurrence and found the deceased lying in injured condition. [18] Shri Milon Mazumdar, who deposed as PW 1 also stated that Shri C handra Kaiborta (PW-3) was present with the deceased, in the house of the appel lant. According to PW 3, he, alongwith Shri Milon Mazumdar rushed to the house o f the deceased after the incident i.e. the assault caused by the appellants. Acc ording to Shri Milon Mazudmar (PW 1) he and PW 3 had run away, as soon as Shri Kandura Kaiborta @ Shri Kalicharan Kaiborta armed with a hulabari had come out. Therefore, according to PW 1, he did not see the incident of assault or injuries caused by the appellant. [19] In our considered opinion, this is a major contradiction in the ocular evidence, given by the eyewitnesses. Such contradiction on material point , appearing in the evidence of the eye witnesses raises doubt about the veracity of the evidence, rendered by the witnesses. Therefore, it is doubtful as to wh ether PW-3 seen the appellant assaulting the deceased. No doubt, the dead body o f the deceased was found in injured condition in the premises of the appellants. This circumstance and the evidence that Shri Kalicharan Kaiborta @ Kandura Kaibo rta had appeared with a hulabari in his hand, raises suspicion about his involve ment. But suspicion, howsoever high, cannot be substitute for substantive legal evidence. Law is well settled that, in a criminal, case prosecution is required to prove the charge beyond all reasonable doubt and the benefit of doubt always go in favour of the accused persons. Shri Subodh Kaibarta (PW-5) also appeared in the place of occurr [20] ence after the incident. He stated that he did not know as to how the deceased d ied. Failure of PW 5 to obtain any information from the alleged eye witnesses i .e. PWs 1 and 3, PW 5 visited the place of occurrence immediately after the inci dent, regarding the cause of death of the deceased, raises serious doubt about t he involvement of the appellant. [21] Shri Gobinda Ram Kaiborta, who deposed as PW 6 also visited the place of occurrence and found the dead body lying therein. He stated that he vis ited the house of the appellants and found that the accused persons had already fled their house. He did not whisper anything as to how the deceased met his dea th. Shri Hara Kanta Kaiborta, who deposed as PW 7, stated that he ca [22] me to know from the villagers that the deceased was killed by his father-in-law. This witness is silent about the involvement of the appellant Shri Tilak Kaibor ta. [23] No incriminating evidence could be elicited from the examination of the investigating officers i.e. PW Nos. 8 and 9. The above contradictory evidence, given by the prosecution witne [24] sses, more particularly, the PWs 1 and 3, who claim to be eye-witnesses, does n ot inspire confidence, to rely on their evidence, to believe that the appellants had inflicted the fatal blows with intention to cause death of the deceased. PW -4 did not see the occurrence; he saw the dead body of the deceased after the i ncident. He stated that he came to know about the incident from Malati Kaiborta, who has not been examined. If the PW 3 had seen the occurrence, he should have disclosed the same to PW 4 also. Therefore, we do not find it safe to rely on th e uncorroborated evidence of the said witnesses. In the present case if the evidence of PW 1 and PW 3 are not believed, regarding involvement of the appellants, then, there remain no substantive evidence again st the appellants. [25] In view of the above discussed evidence and the contradiction fo und therein, we are inclined to hold that the prosecution failed to establish, b eyond all reasonable doubt, that the appellant Shri Tilak Kaiborta alongwith wit h his father Shri Kalicharan Kaiborta @ Kandura Kaiborta (since deceased), in fu rtherance of their common intention, had caused the death of the deceased by inf licting fatal blows. Therefore, the present appellant is entitled to the benefi t of doubt. In view of the above, we find sufficient merit in this appeal requiring interfer ence with the impugned conviction and sentence. Accordingly, the appeal is allow ed. The impugned conviction and sentence are set aside. The appellant, namely, S hri Tilak Kaiborta is acquitted and set at liberty for with, if not required in any other case. [26] Return the LCR. [27] For the sake of brevity, without repeating the discussions made in the Criminal Appeal No.93(J) /2005 (disposed of on 22.12.2011), with regard to the victim compensation, as provided by Section 357 (A) I.P.C, we make the f ollowing directions : (1) As an interim relief, and without prejudice to the right of the dependan ts of the victim to claim higher amount, an amount of Rs.50,000/- be deposited by the State Government with the District Legal Services Authority of Kamrup D istrict within a period of two months from this date. The District Legal Service s Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependant(s), who suffered loss and injury as a result of death of the deceased and also if such dependent(s) or legal representative(s) n eed any rehabilitation. (cid:29) (2) Upon such enquiry, if it is found that the dependent(s), if any, need re habilitation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. It i s made clear that if the District Legal Services Authority, after due enquiry, a rrive at the findings that there is no dependent(s) or that the dependent(s) of the deceased/victim does not require any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs.50,000/-, without delay, in favour of the State Government. [28] Secretary to the Government of Assam, for doing the needful. Let a copy of this judgment and order be furnished to the Chief [29] We record our appreciation for the services, rendered by Sri N. Ahmed, as Amicus Curiae and direct that an amount of Rs. 5,000/- be paid to him as remuneration by the State Legal Services Authority.