Nagen Deka vs State Of Assam And Anr

Mir Alfaz Ali, J

Heard the learned Amicus Curiae Ms. A. Devi for the appellant and the learned Additional Public Prosecutor, Assam Mr. A. Konwor for the State

respondents.

This appeal is directed against the judgment and order dated 20.12.2018 passed by the learned Sessions Judge, Darrang, Mangaldai in Sessions

Case No. 69(DM)/2017, whereby the sole appellant Nagen Deka was convicted under Section 302 IPC and sentenced to rigorous imprisonment for

life and fine of Rs.20,000/-, in default, to suffer rigorous imprisonment for 1 (one) year.

Prosecution case, in a nutshell, was that on 21.04.2016, at about 10 AM, when the victim Rita Deka @ Juri Deka was preparing food in the kitchen,

the appellant suddenly entered the kitchen and inflicted serious injuries on her face, left ear, back etc. and consequently she died at the spot. The

appellant was apprehended by the people and handed over to Police. The elder brother of the victim lodged a written report with the Mangaldai Police

Station. Treating the said written report (Exhibit-1) as FIR, Police registered Mangaldai P.S. Case No. 268/2016 under Section 302 IPC and

commenced the investigation. During the investigation, the Police recorded the statement of the witnesses, seized the alleged weapon of offence,

subjected the body to post-mortem examination and upon completion of the investigation laid charge-sheet against the appellant, who eventually stood

trial before the Court of Sessions.

During the course of trial, learned Sessions Judge framed charge under Section 302 IPC against the appellant, to which, he pleaded not guilty. 15

(fifteen) witnesses were examined by the prosecution to substantiate the charge. The accused-appellant was also examined under Section 313 CrPC,

wherein he took the plea of innocence. Accused also examined himself as DW-1.

The informant Arun Deka has been examined as PW-1, who stated in his deposition that having come to know about the occurrence from his

younger brother Hiranya Deka (PW-4), immediately rushed to the place of occurrence and found the body of the victim lying in the courtyard. He also

stated to have found the accused-appellant being kept tied with a bamboo post. He also stated to have noticed cut injury on the body of the deceased.

PW-2 Prafulla Saharia and PW-3 Tilak Saikia testified that having heard from the co-villagers that the accused killed his wife, they came to the

house of the deceased and found the accused kept tied with a bamboo post. PW-3 also stated, that he had seen the body of the deceased lying on the

ground. During cross-examination both of them admitted to have not stated before Police, that they came to the place of occurrence having heard that

the accused killed his wife or that they had seen the appellant kept tied with a bamboo post.

PW-6 Urmila Deka is the mother of the deceased. According to her, on the day of occurrence she was in the paternal home of her daughter-in-

law. Her younger son informed her over phone, that accused killed her daughter (deceased). Having received the information, she came home and

found the deceased lying in the forecourt. She also stated to have seen the accused having been kept tied with a bamboo post by the villagers.

According to PW-7 Binumoni Saikia @ Dulumoni Saikia, she came to the place of occurrence having heard hue and cry and had seen the body of

the deceased lying in the courtyard. She further stated that she had seen the accused being kept tied with a bamboo post. According to her, the people

who gathered at the place of occurrence told, that Nagen killed his wife. This witness also did not state in her previous statement recorded under

Section 161 CrPC, that upon hearing hue and cry she came to the place of occurrence and had seen the accused being kept tied with a post.

PW-8 Rup Kanta Borah also deposed in the same line, that hearing hue and cry raised by the mother of the deceased he came to the place of

occurrence and found that Hiranya Deka (PW-4) was grabbing the accused. He also stated to have seen the deceased lying with injury mark on her

ear. Accordingly, he arranged for a 108 ambulance for shifting the victim for treatment but the Doctor declared the victim dead.

PW-9 Ila Saikia deposed, that hearing hue and cry she came to the place of occurrence and had seen the body of the deceased lying in the

courtyard. She also stated to have seen blood oozing from the injuries. She further stated that the accused was kept tied with a bamboo post.

PW-10 Kulen Deka testified that at the time of occurrence he was attending his duty as teacher in his school, where the son of the deceased was

also studying. He further stated, that having heard about the occurrence he came to the place of occurrence and found the body of the victim lying in

the courtyard. He also stated to have seen injuries on the neck and head of the deceased. He further stated that a blood stained axe was lying at the

place of occurrence. This witness further stated that on being asked by him the accused confessed and stated “ I rightly cut the deceased todayâ€.

However, during cross-examination this witness admitted, that he did not ask the accused anything about the occurrence. What we notice from the

record is that the statement of this witness was not recorded by the Police under Section 161 CrPC. Though, the learned Additional Public Prosecutor

referred to the statement of one Kulu Deka examined under Section 161 CrPC to contend, that PW-10 and Kulu Deka is the same person, on

examination of the record, we find that Kulu and Kulen are not the same person, inasmuch as, father’s name of Kulu and the father’s name

of PW-10 Kulen Deka are different.

PW-12 deposed, that having heard from one Paban (not examined as witness) that Nagen Deka killed his wife, he immediately came to the place

of occurrence and had found, that the accused was kept tied with a post and the body of the victim was lying on the floor of the kitchen. He also

stated that Police seized an axe in his presence vide Seizure List (Exihibit-3) and proved the same as Material Exhibit-1 during trial.

PW-13 Rajani Kanta Borah, the Village Head, deposed, that he came to know from the villagers that a murder had taken place at village

Bhokelimara, which is within his lot (jurisdiction) and, accordingly, he came to the place of occurrence. In the meantime Police also arrived there. He

also stated that the villagers gathered at the house of the accused told that accused killed his wife, however, he could not recollect the name of the

villagers who had told him that the accused killed his wife.

PW-4, Sri Hiranya Deka, the brother of the deceased, deposed that he was sitting in a room adjacent to the room, in which the accused and the

deceased were living. He further stated, that on the day of occurrence his sister (deceased) was cooking food for all the members of the family and

she also offered him a cup of tea and asked him to go for bath, for taking lunch. Thereafter, he had gone to the adjacent room to fetch a gamocha

(towel), where he had seen the accused. He also stated that having seen him the accused went to the kitchen, where the deceased was cooking and

he also followed the accused to the kitchen and on reaching the kitchen he found that his sister (deceased) was lying dead in the kitchen. He also

stated to have seen injury on her body. He immediately caught hold of the accused and shouted for help. Hearing alarm raised by him, nearby people

came and detained the accused. He also stated, that Police seized an axe and a saucepan with blood stain from the kitchen. During cross-examination

he stated that he did not see the accused killing the deceased. He also admitted to have not stated before Police, that he had seen his sister lying dead

on the floor of the kitchen with injury on her head or that he immediately got hold of the accused and shouted for help and hearing his shout

neighboring people came and detained the accused. He also did not state before Police regarding seizure of axe and blood stained saucepan.

PW-11 Kiriti Saikia, who also claimed to be present in the proximity of the place of occurrence, deposed, that at about 9 O’ clock in the

morning, he was sitting in the house of Bul Saikia, another elder brother of the deceased, adjacent to the house where the deceased was cooking rice

in the kitchen. He also stated, that the accused was helping the deceased in cutting the vegetables in the kitchen. According to him, the deceased

came and called Bul Saikia to take meal. When Bul Saikia went to the kitchen for taking meal, he had seen his sister Juri Deka lying dead with

injuries. He further stated that having seen the deceased lying dead, Bul Saikiia raised hue and cry and upon hearing hue and cry raised by Bul Saikia,

he (PW-11) also rushed to the place of occurrence and had seen the victim lying on the ground. He also stated to have seen an axe by the side of the

body with stain of blood. He further stated, that the accused suddenly went into a room and bolted the door from inside and, thereafter, again he

opened the door in order to flee the scene. He further stated that when the accused tried to flee from the room, he, with the help of other people

managed to apprehend the accused. This witness, however, did not state during his examination under Section 161 CrPC, that the deceased came to

call his brother Bul Saikia for taking meal and after few moments Bulu Saikia went to the kitchen and found the victim lying dead with injuries. He

also did not state before Police that Bul Saikia raised hue and cry seeing the incident, nor he stated that the accused went to the room and bolted the

door from inside and again opened the door and tried to flee from the place of occurrence. He also did not state before Police, that when he came to

the house of Bul Saikia, he had seen the deceased with the accused in the kitchen.

PW-14 was the Investigating Officer. He deposed that on 21.04.2016, the Officer In-charge of the Police Station registered Mangaldai P. S. Case

No. 268/2016 under Section 302 IPC, on the basis of an FIR lodged by one Arun Deka and he was entrusted to investigate the case. He also stated

that before lodging the formal FIR, the Officer In-charge got a telephonic information about the occurrence and made a GD Entry being GD Entry

No. 468 dated 21.04.2016. He took up the investigation and visited the place of occurrence, where he found the body of the victim lying in the

courtyard. He also found the accused tied with a post by the public. According to him, the accused had shown him an axe by which he committed the

murder and he seized the axe vide Exhibit-3 seizure list.

Dr. Utpal Baruah, who conducted the autopsy of the deceased, was examined as PW-5. The Doctor (PW-5) found the following injuries:

“(i) A lacerated injury present over the left auricle, size 3 x 5x 5 cm.

(ii) One oblique fracture present over the upper part of the occipital bone extending upto lower part of the left parietal bone, size 9 x 1 x 1

cm. Brain matter came out though the fracture site.

(iii) Haematoma was present over the upper part of the neck.â€​

In the opinion of the Doctor, “the cause of death was due to coma as a result of head injury sustained and all the injuries were ante

mortemâ€​.

PW-15 was the Circle Officer who prepared the Inquest Report. According to him, there was an injury on the backside of the head of the

deceased and another spot of injury near the ear.

Taking note of the above evidence learned Sessions Judge observed that the testimony of the PW-6, PW-7, PW-8, PW-9, PW-10 and PW-12

were not worthy of credence for being contradictory to their previous statements recorded under Section 161 CrPC. Learned trial Court also

discarded the oral testimony of PW-1,2,3 and 6 with the observation that “ they were reported witnesses and they did not have personal knowledge

about the occurrenceâ€. Testimony of PW-4 and PW-11 also did not inspire confidence of the learned trial Court, as both these two witnesses, who

claimed to be present at the time of occurrence, were found to have stood contradicted with each other. However, learned trial Court recorded

conviction of the appellant under Section 302 IPC primarily relying on certain circumstantial evidence.

Assailing the impugned judgment, learned Amicus Curiae submits, that prosecution has not been able to adduce any legal evidence to substantiate

the charge of murder against the appellant, however, the learned Sessions Judge, on the basis of mere presumption recorded the conviction of the

appellant. Per contra, supporting the impugned judgment, learned Additional Public Prosecutor contends, that though, there has been some

inconsistencies and improvement in the oral testimony of the prosecution witnesses or some lapses on the part of the Investigating Officer, the charge

has been adequately proved by the testimony of PWs-4, 8 and 11 and as such, the impugned judgment calls for no interference.

We have considered the submission made by the learned counsel for both the sides.

For our satisfaction, we have meticulously scrutinized the evidence once again, and upon such scrutiny we find, that except the PW-4 and PW-11,

who claimed to be present at the place of occurrence, all other non-official witnesses were post occurrence witnesses, inasmuch as, admittedly they

came after the occurrence and none of them had the opportunity to see, as to how the deceased was killed. The PW-8 and PW-12 were the

witnesses to the seizure list Ext. 3 whereby, an axe, alleged to be the weapon of offence was seized by Police. Both these witnesses stated that an

axe was seized in their presence from the place of occurrence. According to PW-11 at the time of occurrence, when he was sitting with another

brother of the deceased, namely, Bul Saikia, Juri (deceased) called Bul Saikia for taking meal. When Bul Saikia went to the kitchen to take meal, he

found the deceased lying dead and raised hue and cry, hearing which, PW-11 went to the place of occurrence and had seen the accused leaving the

place of occurrence. She also stated, that the accused entered into another room and bolted the door from inside and again he opened the door and

tried to flee from the house, whereupon, PW-11 apprehended him with the help of other people. Whereas PW-4 stated, that the accused was in a

room adjacent to the room, where he was staying and when he went to fetch a towel for taking bath, he had seen the accused proceeding towards the

kitchen. He also followed the accused to the kitchen and found the victim lying dead with injury. According to PW-4, the accused and PW-4 almost

simultaneously reached the kitchen (place of occurrence) and had seen the victim lying dead with injuries. PW-4 admitted in his cross-examination,

that he did not see the accused inflicting the injuries. According to him, having seen the deceased lying dead in the kitchen with the injury, he himself

caught hold of the accused and raised alarm, hearing which, other people came and apprehended the accused. What therefore emerges from the oral

testimony of the PW-4 is that both PW-4 and the accused reached kitchen simultaneously after the occurrence. If the oral testimony of PW-11 and

PW-4 are read in juxtaposition, it would appear that the testimony of PW-11 & PW-4 are contradictory and mutually destructive on material facts,

inasmuch as, according to the PW-4, he reached the kitchen almost simultaneously with the accused and having found the deceased lying with injury

he caught hold of the accused. Whereas, according to PW-11, it was Bul Saikia, who came to the kitchen to have meal and having found the

deceased lying with injury, raised alarm and hearing the alarm raised by Bul Saikia PW-11 came to the place of occurrence and he caught the

accused with the help of other people. Surprisingly Bul Saikia, with whom PW-1 was allegedly sitting, has neither been examined by police nor by the

learned trial Court. However, learned trial Court made an observation in the judgment, that Bul Saikia and Hiranya Deka was the same person. This

observation does not appear to be borne out of any evidence on record, inasmuch as, there is no evidence on record, indicating even remotely, that

Hiranya Deka (PW-4) and Bul Saikia was the same person. Be that as it may, even if it is assumed for the moment, that Bul Saikia and Hiranya Deka

is the same person, then also the situation does not change, inasmuch as, the testimony of the PW-4 and PW-11 still remains contradictory and

mutually destructive, thereby rendering their testimony unworthy of inspiring confidence.

The accused examining himself as DW-1, stated, that PW-4 Hiranya Deka, Girish Saikia and he himself with his wife were residing in the same

campus of his father-in-law, where three houses were situated. According to him, one house was occupied by Hiranya Deka with family, another

house was occupied by the wife of late Basundhar Deka and the third one was occupied by him (the accused) with his wife. According to him, he

was witnessing TV in the house occupied by Jamitra Deka and his wife was in the kitchen. Hiranya Deka (PW-4) gave him some money to purchase

rice. Therefore, he along with Hiranya Deka (PW-4) went to the kitchen to ask the victim, whether anything else would be required and found his

wife lying dead in the floor of the kitchen. He also stated to have noticed injury on her back. He further stated, that he and Hiranya Deka raised alarm

and hearing their alarm neighboring people came. He also stated that someone informed police and Police initially took himself and Hiranya Deka to

police station. Thus, the oral testimony of PW-4, that he did not see the accused inflicting injury to the deceased and that he himself reached the

kitchen almost simultaneously with the accused and found the deceased lying with injury, rather, supports the defence version of the accused, that both

of them (PW-4 and the accused) went to the kitchen together and found the deceased lying dead with injury. It is also in the evidence of PW-4, that

before going to the place of occurrence both of them were in two rooms in the same house and no reliable evidence was brought on record to show,

that the accused was with the deceased at the relevant time, when the occurrence took place. Thus, the oral testimony of all the non-official witnesses

crystallizes that there was no eye witness to the occurrence, nor there was any evidence to show that the accused was with the deceased

immediately before or at the time occurrence. However, learned trial Court recorded conviction of the appellant on the basis of the following

circumstances, as is evident from the judgment impugned.

(i) Marital relationship between the accused and victim was not cordial and accused was not happy with his wife (deceased).

(ii) The accused confined himself in the room by bolting the door and again tried to flee the scene.

(iii) Accused did not faint having seen the injury of the deceased nor he made any effort to take the victim to hospital for treatment.

(iv) A motive was attributed to the effect, that the accused wanted to get rid of his wife and members of her family for unhappy marital life.

(v) The accused failed to offer any explanation in detail, as to how the deceased was killed.

Upon scrutiny of the evidence on record we find that the prosecution has not adduced any evidence to show that relationship between the accused

and his wife (deceased) was not cordial. Only PW-8, who was not even related to the victim, stated in his evidence, that before the occurrence, he

heard that relationship between the accused and the deceased was not cordial, as the accused used to torture the deceased. This piece of evidence is

apparently hearsay, and as such, inadmissible in evidence. Besides, the above hearsay evidence of the PW-8, there is absolutely no evidence to show,

that the deceased was subjected to torture by the accused or their relationship was not good. Even the PW-4, the own brother of the deceased did not

make even a whisper in his evidence, that relationship between the accused and the deceased was not cordial. However, learned trial court had drawn

a presumption of unhappy relationship between the accused and the deceased, as because the accused in his evidence, did not plead good relation.

Learned trial court held as under :

“In his evidence the accused did not state that his life with his wife was happy and cordial. It is presumed that the accused wanted to get

rid of his wife and her family members.â€​

We are afraid, the finding and the presumption drawn by the learned trial court, that relationship between the accused and deceased was not

cordial, is not only perverse, for not being borne out of any evidence, but also contrary to the established principle of criminal jurisprudence, that

burden is on the prosecution to prove its case beyond doubt and the accused has a right to remain silent. Drawing a negative inference against the

accused in absence of positive evidence adduced by him in respect of any fact is unheard of in criminal trial. We are therefore of the considered

opinion that the finding and /or presumption drawn by the learned trial court, as to motive as well as of unhappy relationship between the accused and

the deceased was not borne out of any evidence on record and therefore perverse.

So far the circumstance No. (ii) is concerned, it was based on the oral testimony of the PW-11, which was even rejected by the learned trial Judge

himself. We have also alluded hereinbefore, that testimony of the PW-11 was unworthy of credence inasmuch as, the oral testimony of PW-11 that

accused initially entered into a room and closed the door and again tried to flee from the room was belied by the oral testimony of the PW-4. Besides

the oral testimony of the PW-11, there is no other evidence on record in this regard. Therefore, this circumstance was also not established beyond

doubt. So far the circumstance (iii) which referred to the conduct of the appellant, that accused did not faint after having seen the injuries of the victim

or he did not take any steps for shifting the victim to hospital are concerned, none of the above conduct of the appellant can be considered as

incriminating circumstance, reason being, that evidently the victim died at the scene of occurrence and as such there was no question of taking the

victim for treatment. Secondly, immediately after the occurrence the appellant was confined by the villagers as suspect. One has to bear in mind that

different person may react to a particular incident in a different way. Only because a person did not react to a certain incident in a particular way, that

itself, can by no stretch of imagination be considered as incriminating circumstance, reason being that a ‘conduct’ to be relevant in a criminal

trial it must come within the purview of Section 8 of the Evidence Act. So far the fifth circumstance is concerned,’ no evidence was brought on

record to suggest even remotely, that any fact having bearing in the commission of offence, was within special knowledge of the accused, which

unless explained may inculpate him. In absence of any evidence to attribute any special knowledge of any facts, having any nexus with the

commission of the offence the accused cannot be saddled with reverse burden under Section 106 of the Evidence Act. In the instant case occurrence

took place at about 10 O’ clock, in the morning. It is also in the evidence that the accused reached the place of occurrence along with PW-4 after

the occurrence. Prosecution also failed to bring on record any trustworthy evidence to show, that the accused was with the deceased immediately

before or at the time of occurrence. This being the position, in the facts and circumstances of the case the accused was under no obligation to explain

anything as to the killing of his wife. Therefore, mere silence of the accused in the facts and circumstances of the case can by stretch of imagination

be considered as an incriminating circumstance against the appellant.

The law relating to circumstantial evidence is well settled by catena of decisions including the lead case in Sharad Birdhi Chand Sarda vs. State of

Maharastra, reported in AIR 1984 (SC) 1622, that in a case resting on circumstantial evidence prosecution must prove all the circumstances beyond

reasonable doubt and all the circumstances, so proved, must form a chain leading to the lone conclusion that none, but the accused has committed the

offence or in order words, the chain of circumstances must be consistent only with the guilt of the accused and inconsistent with any hypothesis of

innocence of the accused. In Sharad Birdhi Chand (supra) the Supreme Court observed that before a case against an accused can be said to be fully

established by circumstantial evidence, the following conditions must be fulfilled:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a

grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade

& Anr. v. State of Maharashtra(') where the following observations were made:

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental

distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on

any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave

any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have

been done by the accused.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.â€​

What therefore, crystallizes from the evidence on record is that not to speak of an unbroken chain, even the circumstances relied by the trial

Court, to record conviction of the appellant, has not been conclusively proved and as such we are unable to concur with the findings of the learned

Sessions Judge, in recording conviction of the appellant. We are, therefore, left with no option but to set aside the conviction and sentence of the

appellant. Accordingly, we allow the appeal and set aside the conviction recorded and sentence awarded by the learned trial court.

Before parting with the record, we would like to place on record our deep concern and anguish, that this case is yet another glaring example of

shabby investigation resulting in denial of justice and fair trial. A person was killed in broad day light and there was no eye witness or eye witnesses if

any, was reluctant to come forward to depose. Therefore, it was expected of the investigating agency to make endeavour to collect materials for

circumstantial evidence. However, except, examining some witnesses under Section 161 CrPC in routine manner, and seizing an axe by the

Investigating Officer, nothing was done. Though some of the witnesses deposed that there was a blood stained saucepan lying in the kitchen (place of

occurrence), the same was not seized by the police. Although an axe with stain of blood, allegedly used for commission of the offence was seized

from the place of occurrence, no endeavor was made by the investigating officer to send the same for forensic examination so as to link the weapon

with the commission of the offence. When there was no eye witness, the investigating officer ought to have endeavored to collect other circumstantial

evidence, when a serious offence like murder was committed. However, sadly, except an axe nothing else was seized from the place of occurrence

by the investigating officer nor any endeavor was made by him to take finger prints etc. and send them for scientific examination and matching the

same with the suspects. It needs no mention that fair investigation is the foundation of fair trial. An unfair and incompetent investigation would

ultimately amount to denial of fair trial and justice guaranteed by the Constitution. Though, the Supreme Court has been reminding the authorities time

and again, regarding the lapses in the investigation and it’s perilous effect on the administration of criminal justice directing them to do the needful,

including fixing accountability on the officer concerned in appropriate cases, we have not been able to see any significant and encouraging outcome in

this regard. We hope and trust that the concerned authorities shall seriously think over the matter and take some positive steps to ensure that the

citizens are not deprived of their constitutional right of fair trial and the constitutional sense of justice.

The Registry is directed to send a copy of this judgment to the Director, Prosecution and Commissioner, Department of Home, Govt. of Assam,

particularly bringing the paragraph 29 of this judgment to their notice.

The appeal is allowed. The appellant be set at liberty forthwith if not required in any other case.

Appreciating the assistance rendered by Ms. A. Devi, learned Amicus Curiae, it is provided that she will be entitled to professional fees of

Rs.7,500/-. Upon production of a copy of this judgment Gauhati High Court Legal Services Committee shall pay the professional fee to Ms. Devi.