DEBA KISHAN vs THE STATE OF ASSAM

 Ajit Singh, C.J.

1.The sole appellant Deba Kishan has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of

Rs.2,000/- with default stipulation.

The victim of the incident was Durga Garh, aged about 28 years. He was a neighbour of the appellant in Line No.8 of Madhuban Tea Garden,

Duliajan.

According to the prosecution case, on 3/12/2012 at about 8:30 PM, Durga had a quarrel with the appellant at the gateway of latter’s house.

Suddenly, the appellant struck Durga on his back and head with a dao injuring him seriously. Arjun Garh (PW-1)-the brother of Durga - hearing hue

and cry came out of his house and seeing Durga injured, took him to the Tinsukia Civil Hospital immediately but there the doctor declared him dead.

Arjun Garh then lodged the First Information Report-Exhibit-1-on the next day i.e. 4/12/2012 in the Duliajan Police Station. Gajendra Nath (PW-7)

wrote the First Information Report for him.

In the meantime, ASI Bhaben Dutta (PW-8) received a letter Exhibit-2 from the Tinsukia Civil Hospital regarding the death of Durga and making a

General Diary entry to that effect, he rushed to the hospital and conducted the inquest over the dead body vide Exhibit- 3. He also sent the dead body

of Durga for post mortem. Rebakanta Baruah (PW-8), who was then posted in Duliajan Police Station, upon receipt of the First Information Report

lodged by Arjun Garh, rushed to the place of occurrence, recorded the statements of witnesses, drew sketch map-Exhibit-5-of the place of occurrence

and Exhibit-6-place where the dao was thrown by the appellant. He then also arrested the appellant.

Dr. Pranab Jyoti Dutta (PW-10), the then Senior Medical and Health officer at Tinsukia Civil Hospital, conducted the post mortem examination on

the dead body of Durga. He found 7(seven) incised wounds of various sizes over occipital region of scalp, parietal and occipital region of scalp as well

as upper neck of the left side and posterior lateral aspect on the dead body. According to him, death was due to the injuries sustained as described,

which were ante-mortem and caused by sharp cutting weapon. His post mortem examination report is Exhibit-7. Rebakanta Barah (PW-9) after

completing the investigation submitted Exhibit-8 charge-sheet against the appellant under Section 302 of the Indian Penal Code.

During trial, the appellant abjured his guilt and pleaded false implication. However, the trial court relying upon the evidence of Arjun Garh and extra-

judicial confession of the appellant made before him, convicted and sentenced the appellant as aforesaid.

It is argued on behalf of the appellant that the evidence of Arjun Garh is not reliable and the so called extra-judicial confession made by the

appellant before him is also an afterthought since he did not state before the police in this regard during investigation. The learned Public Prosecutor

has fairly conceded that Arjun Garh did not state as such during investigation and therefore this piece of evidence is apparently an afterthought and a

development of his earlier statement.

After hearing the learned counsel for the parties and also perusing the record, we are of the view that the submissions made by the learned counsel

on behalf of the appellant have sufficient force and as such the appeal deserves to be allowed. Arjun Garh deposed in the court that he saw his

brother Durga and the appellant quarreling and after sometime, he found Durga lying in an injured condition with injuries on his neck. He also deposed

that the appellant told him that he had killed his brother-Durga. But during cross-examination, Arjun Garh admitted that he was inside his house at the

time of occurrence and he did not see the incident. Therefore, it is clear that he is not an eye witness and as such he did not see the appellant making

the assault. The conviction of the appellant is thus solely based on the testimony of Arjun Garh that the appellant had confessed before him that he had

killed Durga. And we find his evidence also to be false and an afterthought. The reason is that Arjun Garh never told before the police during

investigation that the appellant had made such a confession before him. Rather he stated before police that he did not find the appellant when he

searched for him in his house while taking Durga to the hospital. He also stated before the police that he suspected that the appellant had committed

murder of his brother and in his First Information Report too, which he lodged next day of the occurrence, he did not state that the appellant had made

any extra-judicial confession before him. Hence, his evidence is highly suspicious and hence not reliable.

So far as the evidence of Pawan Chakraborty (PW-2), Chakra Kishan (PW-3), Anil Koya (PW-4), Sanatan Karmakar (PW-6) are concerned,

those are of no aid to the prosecution since neither of them have deposed that they did see or had any knowledge about the occurrence. Pawan

Chakraborty and Chakra Kishan could know about the occurrence two days later and Anil Koya came to know about the occurrence next day from

police only. In fact, he was told by the police that the appellant had committed murder of Durga. Sanatan Karmakar had hardly any knowledge about

the occurrence and involvement of the appellant.

Another witness Boloram Kishan (PW-5) has deposed that on hearing hue and cry, when he came out from his house, he came to know that

Durga has been killed by the appellant. He has also testified that after the police arrived, the appellant stated in the presence of village people that he

has killed Durga. This witness has clearly admitted in his cross examination that he personally did not see the incident and he came to know from

police that appellant admitted his guilt. Therefore, the evidence of Boloram Kishan also does not connect the appellant with the murder of Durga.

Also, any confession made by an accused in the presence of police is not admissible in evidence. Not only this, Rebakanta Barua, being the

Investigating Officer, neither deposed that the appellant had admitted his guilt nor any confessional statement was recorded. Hence, the evidence of

Boloram Kishan that the appellant made an extra-judicial confession before the public is neither truthful nor reliable.

Besides, interestingly the weapon of assault was also not seized by the police and as such there is nothing on record to even remotely suggest that

the appellant used that weapon to commit the murder. There is hardly any whisper from the Investigating Officer that the weapon of the crime was

ever seized or discovered at the instance of the appellant and thus we are of the considered view that there is absolutely no evidence at all to rope him

for the charge of committing murder of Durga.

In Tea Estates, the labourers reside closely in small houses with small compounds. No doubt, the dead body was found in the open compound of

the appellant and as such he was expected to explain the circumstances under which the dead body was found in his compound and this casts a doubt

on the appellant. But, doubt however grave cannot take the place of cogent evidence and substitute it to base a conviction.

For these reasons, we disagree with the findings of the trial court and set aside the impugned conviction and sentence. We accordingly acquit the

appellant of the charge under Section 302 of the Indian Penal Code. He is reportedly in jail. He be released forthwith.

The appeal is allowed.