Judgment · High Court · 2012

#02. We have heard Mr. D. Das, learned Addl. Public Prosecutor for th e State appellant and Mr. D.K. Bhattacharjee, Senior Advocate for the respondent s.

#03. The genesis of the prosecution case lies, as the records availa ble reveal, in the FIR dated 05.05.1993 lodged by one Shri Indreswar Rava with t he Officer-In-Charge, Palashbari Police Out Post, Mirza alleging that in the wee hours of that day, his elder brother Jiten Rava and his wife Narabala Rava (sis ter-in-law of the informant) had been stabbed to death by a group of 6(six) pers ons by barging into their living room. The FIR disclosed that Jiten Rava in his injured state claimed to have recognized the respondents amongst the assailants . He disclosed the same while the Compounder of the Kulsi State Dispensary was administering him the first aid. It was further stated in the FIR that while Na ra Bala Rava died instantly, Jiten Rava expired on his way to the hospital. On this FIR, Palashbari Police Station Case No.79/93 was registe red U/s.147/457/302 of the Indian Penal Code (hereinafter for short referred to as the IPC). On the completion of the investigation, charge sheet was laid aga inst the respondents, whereafter, charge was framed against them U/s.457/302/34 IPC, to which they pleaded (cid:28)not guilty (cid:29). At the trial, the prosecution examined 9(nine) witnesses including the doctor who had performed the post mortem examin ation on the dead bodies, the learned Magistrate who had recorded statements of PW-3 & 4 U/s.164 of the Criminal Procedure Code (for short hereinafter referred to as the Code) and also the Investigating Officer who had conducted the investi gation. The respondents were examined U/s.313 Cr.P.C., whereafter, they adduced defence evidence, Shri Dwipen Ch. Rabha and Babul Rabha. By the judgment and o rder impugned herein, on the completion of the trial, the respondents were acqui tted.

#04. te to outline the evidence on record, in brief. Before adverting to the rival submissions, it would be appropria PW-1 Shri Dharmeswar Rava, the father of Jiten Rava deposed on o ath that he used to live a little away from the latter. According to this witne ss in the night of the occurrence when his son was sleeping, two accused persons injured him by stabbing him dagger and as he was in the process of being thrown into a nearby river, his(witness’s) grand children Debananda Rava and Utpal Rav a noticed it and having raised an alarm, the fishermen located nearby ran to the place of occurrence and on seeing them, the two accused persons fled the scene. This witness stated that his son and his daughter-in-law died at the spot. He stated further that his son-in-law Rameswar Rava, thereafter informed the polic e. He proved the post mortem report, Ext-1. In cross-examination this witness conceded of not having seen the occurrence himself. He however stated that ther e was a thunder storm that night.

#05. PW-3 Shri Utpal Rava, the son of the deceased who at the time of the incident was aged about 10 years testified that at the time of the incident at about 1 A.M. in the night, he and his elder brother were in the eastern side of the house, whereas his parents were lodged in the southern side thereof. Th e witness stated that respondents broke upon the wall of the house and killed hi s parents. The witness also identified the respondents on the dock. He stated that after assaulting his parents, the respondents dragged them out of the house . The witness claimed to have seen the incident through an opening in the wall. According to him, he having raised hue and cry, some nearby fishermen came the re and rescued his parents. He affirmed that while his mother died at the spot, his father was alive till 9 A.M. in the morning. He stated further that his fa ther before his death had told everybody that Boga and Sankar (respondents) had assaulted him. He also claimed to have made such statement before the learned M agistrate, which he proved as Ext-10. In his cross-examination he amongst others stated that he did not remember as t o whether he had stated before police that he along with his parents and his bro ther had been in the same room in the night of the occurrence. He, however clar ified that there was a wall between the two portions of the house where they sta yed. He deposed further that when his father identified the respondents as the assailants the next morning, about 12 fishermen and other family members were al so present. He admitted in his cross-examination that when the police had exami ned him, he did not state before them that his father had in the morning disclos ed that the respondents had assaulted him. He affirmed that although his father had been alive then, he was not able to speak. He however denied the suggestio n of not having stated before the police to have seen the occurrence through an opening in the wall. He denied as well the suggestion that he did not state bef ore the police that the two accused persons had dragged his parents outside the house before assaulting them.

#06. PW-4 Shri Debananda Rava another son of the deceased testified t hat his parents were in the new house to the east of the hut. He disclosed that he along with his brother Utpal were in the western side thereof. He stated th at the respondents in the night of the occurrence entered their house, dragged h is parents out therefrom to the courtyard and started (cid:28)beating (cid:29) them. He corrob orated PW-3 to the extent that he along with him had seen the occurrence through a opening in the wall. He also stated that they having raised hue and cry, a g roup of fishermen who were nearby arrived at the place of occurrence on which th e respondents became made good their escape. He deposed as well that whereas hi s mother died on the spot, his father in the injured condition was taken to thei r (cid:28)old home (cid:29) and thereafter on his way to the hospital he died in the twilight h ours. In cross-examination, this witness conceded of not having observed how ma ny sticks were used by the assailants.

#07. PW-5 Shri Indreswar Rava, the brother of the deceased is the inf ormant who proved the FIR, Ext-12. He deposed that in the late evening of the n ight of the occurrence at about 9 P.M. he had gone to fish at Dewan Bill along w ith Rameswar Rava and Paniram Rava. He stated then to have seen the respondents sitting near the beel. This witness stated that the farm house of the deceased was located near the beel, in which they (deceased) used to live along with the ir sons Utpal Rava, Debananda Rava and Keshap Rava. He stated that at about 11 P.M. when he returned home after fishing and had his meal, fisherman Dilip Rava informed him that two persons had been found lying in a pool of blood in the far m house of the deceased. According to this witness, he having reached the place of occurrence, saw Narabala Rava lying dead on the floor of the house and Jiten Rava lying injured but alive in the courtyard thereof. According to this witnes s, both the injured had received stab injuries. He stated that his brother Jite n Rava told him that about 6(six) persons had come and that the respondents had (cid:28)assaulted him (cid:29) and his wife. He affirmed that his injured brother died en rout e to the hospital. He denied in his cross-examination the suggestion that he di d not state before the police that in the night of the occurrence, he along with Rameswar Rava had gone to fish in the Dewan Beel and that while proceeding ther eto they had seen the respondents sitting nearby. He also denied the suggestion that the injured Jiten Rava disclosed to him the names of the respondents as th e assailants. The witness deposed that it was a stormy night and that though th ere was a cultural function on account of Bohag Biday, he had not gone to enjoy the same.

#08. PW-6 Shri Dilip Rava stated that in the night of occurrence, he along with a group of 8(eight) persons had gone to fish in the Dewan Beel. He co nfirmed that there was a storm in the night, for which they returned. According to this witness on their way back, they found two boys screaming seeking help. They then were led by them to a house in the middle of the field and found the courtyard thereof red with blood. This witness stated that the two boys then di sclosed to them that their parents had been assaulted/killed but did not name th e assailants. This witness stated that out of the two injured, the female was v oiceless and the male was alive. In cross-examination, this witness affirmed th at on his arrival to the place of occurrence he had found Nara Bala Rava to be d ead and Jiten unconscious. He stated further that during the night he was prese nt there till Jiten died.

#09. PW-7 Smti Parinita Barman Sangma who at the relevant time was Ju dicial Jagistrate, 1st Class at Guwahati deposed to have recorded the statements of Utpal Rava (PW-3) and Debananda Rava (PW-4) U/s.164 Cr.P.C. and proved the same as Ext-10 & Ext-11 respectively. In cross-examination, this witness amongs t others did concede that the statements did not contain her signature in all pa ges. PW-8 Salim Ahmed had been handed over the case diary in the late 10. r stage of the investigation, after the statement of all the witnesses except on e had been recorded. He deposed that the weapon of assault could not be recover ed as lot of time had elapsed in between. In cross-examination he, in particula r did admit that he did not make any attempt to search for any lathi. On being confronted with the FIR, Ext-12 this witness admitted that the handwriting of th e text of he FIR was seemingly different from the signature appearing thereon. PW-9 Shri Rup Ram Hazarika stated that on 05.05.93, he was the 2 11. nd Officer in Palashbari P.S. and was officiating as the Officer-In-Charge there of. He stated that at about 9 A.M. on that day, he received a written ejaher f rom Shri Indreswar Rava, Ext-12 and initiated the investigation. He deposed to have detected one blood stained Mekhla (female wear) of light green colour, a pa ir of Hawai sandals with blue straps (illegible) and two sandals with brown stra ps and seized the same. He stated to have conducted inquest on the dead bodies and to have forwarded the same for post mortem examination. He testified that t he accused persons surrendered in Court on 08.01.94. In cross-examination he referred to a sketch map, Ext-A to testify that the hous e in which the deceased were living at the time of the occurrence was of (cid:28)L patt ern (cid:29). He claimed to have found the dead bodies in the western part of the said house. When confronted by the defence with reference to his case diary, this wi tness stated that Utpal Rava, PW-3 had disclosed before him that his parents alo ng with him and his brother Debananda Rava were in the same room of the house at the time of the occurrence. This witness also stated that PW-3 did not tell hi m that he had witnessed the incident through an opening in the wall. This witne ss further testified that PW-4 Debananda Rava that in the evening of the occurre nce Shri Nandeswar Rava, Rameswar Rava and Paniram had come to have their meal a fter catching fish. The Investigating Officer also confirmed that Shri Nandeswa r Rava, PW-5 had not told before him that at about 9 P.M. in the night of occurr ence Rameswar Rava and Paniram Rava and he had gone to the Dewan Beel to catch f ish, on their way they had seen the respondents sitting on a ridge in the field. PW-2 Dr. P.C. Sarmah who at the relevant point of time was servi 12. ng as Associate Professor of Forensic Medicine in the Guwahati Medical College h ad performed the post mortem examination on the dead bodies. Referring to the tw o reports prepared on the basis of his findings in cross-examinations, he depose d to have detected the following injuries: Jiten Rava (cid:28)1. Stab wound, spindle shaped with clean margins, measuring

3.5 cms x 2 cms (at middle) x Abdomen cavity Deep) present obliquely on the bac k of abdomen 10 cms above the Right Iliac-crest and 12 cms right (outer) to midl ine. The wound was stitched by 3 nylon stitches. The track passes through abdo men wall, peritoneum. Right kidney and mesentery. The direction was from back to front, right to left and from below upwards. Peritoneal cavity contains 2000 ml liquid and clotted blood.

#2. Cut wound spindle shaped measuring 1.5 cms x 3 cm x 1 cm deep on left si de of chest 7 cms below the lower angle of left scapula and 16 cms left (outer) to midline. 3. Contusion measuring 10 cms x 8 cms in size on front of the chest and abd omen 11 cms below the suprasternal notch. All other organs were found healthy an d place. Stomach contains 300 grms partly digested food without suspicious smel l. Brain was healthy. (cid:29) Nara Bala Rava (cid:28)1. Stab wound, spindle shaped with clean cut margins, measu ring 3.5 cms x 2 cms (at middle) x chest cavity deep) which is located at the Ri ght sided chest, the outer and upper end is at 22 cms below the pit of axilla al ong the posterior axillary line. The track passes through chest wall in between 8th and 9th tubes. Pleura, diaphragm and enters the right lobe of liver on post erior aspect making an injury 2 cms x 1.5 cms x 3 cms deep. Peretoneal cavity c ontusion 1500 ml liquid blood. The direction being from back to front. Right t o left and from above downwards 2. Stab wound, spindle shaped with clean cut margins measuring 2 cms x 1 cm (at middle) x 2.5 cms deep obliquely on back of left thigh 47 cms above left he el at midline. Direction being from back to front. Right to left and from abo ve downwards 3. Stab wound spindle shaped with clean cut margins measuring 2.5 cms x 1 c m x 2.5 cms deep on outer spect of left thigh. 23 cms below the anterior superio r Iliac spine on left side. 4. Contusion 3 cms x 0.5 cm on left cheek 3 cms left to outer angle of left eye. Contusion 2.5 cms x 0.5 cm size on left cheek 0.5 cms in front of lower Contusion 3 cms x 0.5 cm size on left cheek 1.5 cms below injury No.(5). Contusion of mesentery and omentum above the level of Umbilicas.

#5. and of left ear. 6. 7. All other organs were found healthy and pale. The stomach contains 400 grams pa rtly digested food without suspicious smell. Heart was healthy and empty. (cid:29) This witness opined that death in both the cases was shock and haemorrhage as a result of the stab injuries on the abdomen/chest. According to him, these injur ies were ante mortem and were caused by pointed sharp edged weapon and were homi cidal in nature. He proved the corresponding reports as Ext-2 and Ext-7. He ho wever, clarified that death had occurred in both the cases within three hours of the taking of the last meal by the deceased.

#13. A plain perusal of the proceedings of the 313 Cr.P.C. would reve al that the respondents denied the correctness of all incriminating circumstance s adduced by the prosecution when laid before them. The two defence witnesses, in essence, testified that during the night of the occurrence, the respondents w ere enjoying the cultural function held on account of Bohagi Biday in a nearby l ocation. According to these witnesses, the function was interrupted by heavy ra ins and storm for which they took shelter in a nearby tea stall from where they continued to witness the same till it was over, next morning at about 4/4.30 A.M . The respondents, therefore, through this evidence did set up a plea of alibi of absence from the place of occurrence at the possible time of the incident. The learned Addl. Public Prosecutor has urged that the evidence 14. of the prosecution witnesses, more particularly PW-3, PW-4, PW-5 & PW-6 being c oherent and consistent, the minor contradictions on the face of the records do n ot render the same untrustworthy and therefore, the learned trial Court ought no t to have acquitted the respondents. According to Mr. Das as the medium of proo f is human agency, minor contradictions or inconsistencies is natural and unless the same are mutilative to the extent of rendering the testimony non est, the s ame ought to be ignored. Referring, in particular to the evidence of PW-3 & PW- 4, the learned Addl. Public Prosecutor has argued that both of them at the time of occurrence were young in age with impressionistic minds and thus their vivid narration of the incident proved the charge against the accused-appellant beyond all reasonable doubt. Not only, according to the learned Addl. Public Prosecut or, the contents of the FIR do corroborate the other evidence on record, as the oral dying declaration of the deceased Jiten Rva unmistakably implicated the res pondents as the assailants, the learned trial Court fell in gross error in acqui tting them, he urged. To reinforce this plea, Mr. Das also placed reliance on the statements of PW-3 & PW-4 recorded U/s.164 Cr.P.C. Drawing the attention o f this Court to the sketch map prepared by the Investigating Officer, which disc losed that the house in which the occurrence had occurred was a (cid:28)L (cid:29) shaped one, Mr. Das has urged that the insignificant contradictions in the otherwise detail ed account of the evidence provided by the PW-3 & PW-4 ought to have been overl ooked. Holding the respondents to be responsible for the inability of the Invest igating Officer to seize the weapon of assault due to their abscondence, Mr. Das has insisted that as admittedly two persons have been brutally killed with the evidence unequivocally pointing to the guilt of the respondents, the order of ac quittal ought to be interfered with in the interest of justice. Mr. Bhattcharjee has insisted that the evidence of the prosecuti on witnesses being plagued by material contradictions rendering it wholly doubtf ul, the finding of acquittal is unassailable in law and on facts. Branding the witnesses of the prosecution to be generally untruthful, the learned Senior Coun sel has referred, in particular to the deposition of PW-6 to dismantle the prose cution case in its entirety. According to him, in the factual setting outlined by the prosecution witnesses, the omission on the part of this witness to identi fy the respondents is destructive of the substratum of the prosecution case and thus no interference with the acquittal of the respondents is called for. Accor ding to Mr. Bhattacharjee, the injuries detected on the dead bodies are wholly i ncompatible with the nature of the assaults allegedly made by the respondents an d thus they by no means could have been convicted of the charge leveled against them. The learned Senior Counsel argued that the child witnesses PW-3 & PW-4 as is evident from their testimony had been irreversibly tutored and thus they are wholly unreliable. According to him, the death of Jiten Rava and Nara Bala Rava per se does not prove any nexus between the respondents and the unfortunate inc ident and the prosecution having failed to prove the charge, the verdict of acqu ittal is valid in law. A group of six persons had entered the house of the deceased and had sta We have duly extended our conscious consideration to the materia 15. ls on record as well as the arguments advanced. To start with the following sal ient factual aspects are available on an plain reading of the FIR: (a) bbed Jiten Rava with a knife; (b) ants also assaulted her; (c) he respondents had been recognized; (d) The names of these two identified assailants had been disclosed by Jiten Rva to the Compunder while he was administering first aid to the injuries susta Out of the assailants, Boga Ram Rava @ Biswajit Rava and Sankar Rava - t As the wife of Jiten Rava, Nara Bala Rava offered resistance, the assail ined by him.

#16. Admittedly, this compunder has not been examined by the prosecut ion though it seems from the factual projections of the FIR that he was the fir st person in point of time to whom the names of the respondents as assailants ha d been disclosed by the injured Jiten Rava. From the narration in the FIR howev er it is not clear as to who had stabbed Jiten Rava and Nara Bala Rava. There i s at the same time no reference therein of any lathi or blunt weapon used as we apon of assault by the miscreants. Presumably, however the account of the incident furnished in the FIR must have been made by the informant on the basis of the dying declaration claimed to have been made by Jiten Rava.

#17. It is inter alia apparent from the evidence of PW-1, Dharmeswar Rava that the assaults had taken place outside the house in which at the relevan t point of time, the two deceased persons were sleeping and the respondents were intercepted while they were in the process of throwing the bodies into the near by river. This witness mentioned that both the injured had died at the spot. H e admitted of not having seen the incident himself. PW-3 and PW-4, the sons of the deceased who at the relevant point of time were aged 10/12 years of age, tho ugh claimed to have to seen the incident through a hole of a wall separating the portions in the same house in which they (witnesses and their parents) were sle eping did not noticeably mention any assault with a sharp cutting weapon by the respondents. They referred to assaults being made on their parents. Though they claimed that their injured father was alive till 9 a.m. in the morning and had b efore his demise told everybody present that the respondents who are the assaila nts, in cross-examination they admitted that there was no wall in between the tw o portions in which they slept (deceased and the family members) and insisted th at all of them were in the same room. They admitted that when examined by the po lice they did not state before them that their father had disclosed in the morni ng that the appellants had assaulted him.

#18. P.W. 4 Debananda Rava in particular stated that his father Jiten Rava had died in the twilight hours, which in no uncertain terms indicate that death had occurred before 8.30/9.00 a.m. P.W. 5 Indreswar Rava also claimed that his brother Jiten Rava had told him that about six persons had come and that th e respondents had assaulted him and his wife. The statement of P.W. 6 Sri. Dilip Rava in his cross-examination that all thorough out the night when he was prese nt in the house of Jiten Rava he had remained unconscious, in our view renders t he possibility of oral dying declaration by him even otherwise doubtful. Though after the injuries sustained by Jiten Rava if as claimed by the prosecution, he had survived for about 8 to 9 hours, ideally speaking the same ought to have bee n recorded dying declaration to decipher clearly the identity of the assailants and the nature of the assaults made. On a reading of the evidence of P.W. 1, 3, 4, 5 & 6 we are unper 19. suaded that there was either a dying declaration as contemplated in law unimpea chably establishing the complicity of the respondents as the assailants. Noticea bly, there is no evidence of any assault by any sharp cutting weapon except P.W. 1 Dharmeshar Rava who admittedly did not witness the incident, none of the eye witnesses mentioned the use of any sharp cutting weapon by the respondents to ca use the injuries found on the dead bodies. In that view of the matter having reg ard to the medical opinion about the death of the deceased persons, we are of th e unhesitant opinion that the evidence on record fails to even provide a percept ible nexus between the respondents and the alleged offence. Though Mr. Das had i nsisted that the expression (cid:28)assault (cid:28) would by implication include the act of s tabbing, we are not inclined to accede to that interpretation. Having regard to the burden of proof which the law casts on the prosecution, such a liberal and flexible construction of the word is uncalled for considering the state of evide nce on record. The Investigating Officer has not been able to seize any weapon o f assault. The reason cited in course of the arguments, namely, abscondence of t he respondents is unconvincing. The omissions on the part of P.W. 3, 4 & 5 as pr oved on the basis of the case diary, according to us are contradictions of decis ive magnitude cutting at the root of the prosecution case. On an analysis of the evidence on record, therefore, we find ourselves in genera l agreement with the conclusion recorded by the learned trial court. As it is in terference, with an order of acquittal is permissible and/or is justified on lim ited grounds i.e. patent misreading of the evidence of the record leading to abs urd and perverse conclusions and apparent legal infirmities. On a reading of the impugned judgment and order we are constrained to hold that the same does not s uffer from any of such vitiating illegalities. The view taken by the learned tr ial court is a plausible one on the basis of the evidence on record. In the wake of the above, we see no cogent or convincing reason to interfere wit h the order of acquittal of the respondents. The appeal, therefore, lacks in mer it and is dismissed.