Putuli Rabidas vs State Of Assam And 3 Ors

AM Bujor Barua, J

Heard Mr. T.J. Mahanta, learned senior counsel appearing for the appellant, Ms. S. Jahan, learned Additional Public Prosecutor appearing for the State of Assam, Mr. A.M. Bora, learned senior counsel appearing for the respondent Nos.2 and 3 and Mr. S. Biswas, learned counsel appearing for the respondent No.4.

This is an appeal against acquittal in the judgment and order dated 15.07.2016 of the learned Sessions Judge, Cachar, passed in Sessions Case No.55/2008, whereby the accused respondents were acquitted from the charges leveled against them. Being aggrieved by the aforesaid judgment of acquittal, this appeal is preferred.

An ejahar dated 26.09.2003 was lodged by Busia Rabidas before the Officer-in-Charge of Silchar Police Station stating inter-alia that on 25.09.2003, when she was on her way to the national highway, a boy had informed her that Ron Roy, proprietor of Sonar Cachar, accompanied by 100 other persons armed with daos, swords, rods etc had entered their homestead and were assaulting her family members including her two sons Babul Rabidas and Shyamal Rabidas. Upon receiving the news, when she returned home around 11.00 a.m, saw that her elder and younger daughters in law were bleeding from their heads and they informed that Ron Roy and his accomplishes had assaulted and injured them. They also told her that Ron Roy and his accomplishes had forcefully dragged her two sons from home to the office room of R.R. Memorial School, where they had assaulted them with daos, rods and swords etc. When the police personnel came, the accused persons handed over Babul and Shyamal to them, but later on she came to know that her two sons died.

Before proceeding further, we also take note of the submission that Ron Roy, the person referred in the ejahar was in fact Ranbir Roy, who happened to be the proprietor of a newspaper Sonar Cachar as well as associated with the school named R.R Memorial School. We further take note of that Ranbir Roy had in fact died either prior or in the same incident, where the deceased referred in the ejahar had died.

In this respect, we first examine the evidence of PW-11 Sudhangshu Roy, who in his deposition had stated that on 25.09.2003 when the incident had taken place, he was residing within the campus of RR Memorial School, where he was allowed to stay their along with his family for looking after the construction of the RR Memorial School building. He stated that he was also running a school canteen. PW-11 in his cross-examination had stated that the deceased Babul Rabidas and Shyamal Rabidas had committed the murder of Ranabir Roy, who was one of the owners of RR Memorial School and that Ranabir Roy was murdered by the two persons inside the toilet of the school. He further stated that he saw the two persons Babul Rabidas and Shyamal Rabidas coming out of the toilet holding two big size knifes in their hands and both the knifes were blood stained. On seeing them, PW-11 raised an alarm and hearing the same, the teachers, students and others came out and there was a big chaos. When the alarm was raised, the two persons Babul Rabidas and Shyamal Rabidas rushed towards the wooden office of the school by stating that they would kill Runu Roy also. PW-11 stated that Runu Roy was not present in the school campus at that time. When the two persons Babul Rabidas and Shyamal Rabidas did not find Runu Roy in the wooden office, they ran towards the front office adjacent to the first gate and at that time they had knives in their hands. Due to the hue and cry that was raised, a large crowed assembled in front of the school as well as inside the campus of the B.T College and encircled the two persons Babul Rabidas and Shyamal Rabidas. The people assaulted Babul Rabidas and Shyamal Rabidas with whatever they could get in their hands. The witness further stated that Runu Roy at that time was in his shop at Barak Market near Rangirkhari tri junction and he came to the school campus after arrival of the police.

The two persons Babul Rabidas and Shyamal Rabidas referred in the evidence of PW-11 are the two deceased persons, who are involved in the subject matter of the present appeal against the acquittal.

PW-15 Dr. Gunajit Das, who had conducted the postmortem examination on the two deceased persons Babul Rabidas and Shyamal Rabidas, had found the following injuries:-

"Injureis on Babul Rabidas:

(1) Incised wound mid forehead in the transpurse pleue 6 x 3 cm cutting whole thickness of the frontal bone.

(2) Incised wound mid part of right eyebrow 4 x 0.5 x 0.5 cm.

(3) Lacerated wound at left side lower border of body mandible 2 x 0.5 x 0.5 cm with communicated fracture of mandible in mid part.

(4) Graze abrasion left cheek with bruising.

(5) Stab wound left mid part anterior border 1.2 X 0.5 x 0.5 cm

(6) Lacerated wounds left side of scalp vertex region 8 x 1 cm x scalp deep. On reflection massive contusion of scalp all throughout.

In the skull communicated fracture of left temporal parietal and frontal bone also incised.

Membrane contused, subarachnoid haemorrhage present on both sides.

Rest of the organs are found healthy.

Injuries on Shyamal Rabidas:

(1) Swelling and bruising of left hand dorsum.

(2) Graze abrasion left check.

(3) Incised wound distal part of left mid finger palmar aspect 2 x 0.5 cm x skin deep.

(4) Punctured wound with lacerated margins over below the lower lip on left side1 x 1 x 1 cms and above the upper lip on left side same sized.

(5) Lacerated wound left side occipital scalp in transverse plane 6 x 0.5 x scalp deep.

(6) Lacerated wound left side vertex 3 cm long x 0.5 scalp deep.

(7) Incised looking wound fronto parietal region in the saggital plane just left of mid line 9 cm long x 0.5 x scalp deep.

Vertebra- healthy Scalp contused around the wounds.

Skull- Fissured fracture of left occipital bone under injury No.5 up to forearm border and also left temporal bone.

Membrane-Contused with Subarschnoid hemorrhage both sides.

Brain- contused whole brain."

When we look into the matter from the point of view of the deposition of the evidence rendered by Pw-11, who appears to be a natural person to have remained present in the place of occurrence, we notice that there are some inconsistencies and discrepancies in the ejahar lodged by the informant. Firstly, Ron Roy referred in the ejahar, who is in fact Ranabir Roy had already died before the death of the two deceased persons. The allegation made in the ejahar that Rana Roy and his accomplishes had assaulted the injured the two deceased persons by forcefully dragging them from their home to the office room of RR Memorial School appears to be grossly incorrect.

Be that as it may, PW-1 Buchia Rabidas, the informant in her deposition stated that at the time when the occurrence took place, she was in the national highway in connection with some personal matter and she went there at about 10.00 a.m and returned home at about 12 o'clock. She was asked by the accused Runu Roy, Thakuria and others to go and have a look at her two sons who were laying dead at the BT College campus. We take note of that although in the ejahar the informant stated that Ron Roy and his accomplishes had assaulted the two deceased persons, but in her deposition she mentions only about accused Runu Roy, Thakuria and others to the extent that they asked her to take a look at the deadbody of her two sons which were lying in the BT College campus.

PW-2 Putul Rabidas, who is the sister-in-law of the two deceased persons Babul Rabidas and Shyamal Rabidas, in her deposition stated that on the day of occurrence her two brothers in law Shamal and Babul were in their house, which was located near the RR Memorial School. Upon hearing someone saying that Runu Roy was killed, they all came out in their courtyard. Then the accused Runu Roy accompanied by one police officer and some two three other persons, entered their homestead and called Babul and Shamal to the school compound. PW-2 also deposed that then they started assaulting Babul mercilessly and after 10-15 minutes, the persons again came back and took Babul to the school campus and had assaulted him with Belsa and wooden pieces. When they went to the school campus following the two deceased victims, she saw that Babul Rabidas and Shyamal Rabidas were lying in a pool of blood and later on police had informed that the two victims had died.

PW-2 in her deposition projects herself as an eye witness to the assault by accusing Runu, the police officers and two others. In cross examination, a suggestion was put to the witness, to which she denied that she had not stated before the police that accused Runu Roy and Thakuria and two three police men entered their house and called Babul and Shamal and after taking them away to the school campus, had assaulted them mercilessly.

In this respect, we look into the evidence of the Investigating Officer, PW-15 Gopal Sharma, who in his deposition stated that before the investigation was handed over to the CID, the matter was investigated by Dilip Kumar Saha. In cross examination, he stated that PW-2 Putul Rabidas had stated before the previous Investigating Officer Dilip Kumar Saha that she had left for Green View Nursing Home on the previous night itself to attend her duties and she remained there from 8.00 p.m of the previous night up to 11.00 a.m on the day of occurrence. PW-15 Gopal Sharma also stated that PW-2 Putul Rabidas had not stated before the previous Investigating Officer Dilip Kumar Saha that accused Runu Roy, Tridip Thakuria and two three other police personnel had entered their house, called Babul and Shamal and had taken them away to the school campus and thereafter had mercilessly assaulted them.

When we look into the statement of PW-2 under Section 161 Cr.P.C, we find that she had in fact not stated anything about the accused persons Runu Roy, Thakuria and two three other police personnel dragging out the deceased Babul and Shamal out of their house and assaulting them after taking them to the RR Memorial School. From the said point of view, it is a clear improvement of the PW-2 at the stage of trial to project herself as an eye witness who had seen the occurrence of accused Runu Roy, Thakuria and two three other police personnel coming to their house, dragging the two deceased out and then assaulting them after taking them to the RR Memorial School. Further, the projected eye witness account of PW-2 is also inconsistent with the evidence rendered by PW-11 who was a natural witness, who was present at the place of occurrence.

PW-3 Sabitri Rabidas, in her deposition stated that around 10.00 p.m. at night she heard some hue and cry from the campus of RR Memorial High School, which was situated at a distance of about 8 to 9 cubits from their house. Upon hearing some cry, she, Shamal, Babul, Putuli went out of their house, but having not heard anything further, they returned to their house. Thereafter, after about five minutes, the witness had seen ASI Thakuria and Runu Roy and another 20-25 persons entering their house and dragging away the deceased Shamal to the office of RR Memorial School. Then, about 10 minutes later, the same persons dragged the deceased Babul Rabidas to the office of the RR Memorial School. Thereafter, when the witness and PW-2 Putuli followed them, the accused Runu Roy and ASI Thakuria had not allowed them to enter the school campus. But from the window of the office, they saw that the accused Runu Roy and other 20-25 persons were assaulting both Shamal and Babul with Belsa and by pelting stones. Then, someone also pelted a stone to PW-2 Putuli and she had sustained injuries on her head.

In cross-examination, the witness denied to a suggestion that she had not stated before the police that after about five minutes accused Thakuria and Runu along with 20-25 persons came to their house and dragged the deceased Shamal to the office of the RR Memorial School. She also denied the suggestion that she had not stated before the Investigating Officer that ten minutes thereafter, they came back and also dragged the deceased Babul to the school's office.

PW-15, Gopal Sharma, the Investigating Officer from the CID in his cross examination stated that PW-3 Sabitri Rabidas had not stated before the previous Investigating Officer Dilip Kumar Saha that she and Putuli tried to follow Babul and Shamal and through a window of the office, she herself and PW-2 Putuli had seen the accused Runu Roy and 25 others assaulting Shamal and Babul with Belsa and that they had also pelted stones.

For the purpose, we again examine the statement of PW-3 Sabitri Rabidas under Section 161 Cr.P.C and we find that the statement of PW-3 Sabitri Rabidas before the Investigating Officer was substantially different from what she had stated in her deposition in the trial, which again appears to be a substantial improvement as regards her deposition that the accused Runu Roy, ASI Thakuria and some other people came to their house, dragged the two deceased out and then assaulted them within the compound of RR Memorial School.

Another eye witness according to the appellant was PW-5 Manjusri Swami. Pw-5 in her deposition stated that upon hearing a hue and cry, she came out of her house and saw that the accused Thakuria, who is a SI of Police was dragging the deceased towards the newly constructed office room of Runu Roy. After taking him to the office, Thakuria and Runu Roy assaulted the deceased Shyamal with Belsa and wooden piece and the other persons present also assaulted Shyamal and Babul. But she could not recognize them. In cross examination, the witness stated that the police had interrogated her on the very night when the occurrence took place. She stated that she did not state to the police that she saw accused Thakuria dragging Shyamal to the office constructed by Runu Roy. She also stated that she had not stated before the Investigating Officer that she saw that Babul was dragged by some person and the accused Runu Roy was with him.

The evidence of PW-5 itself had been self contradicted by her in cross examination by stating that she had not stated as such before the police. From the said point of view also, the deposition of PW-5 in her examination-in-chief appears to be an improvement.

We have been told that apart from PW-2, Pw-3 and PW-5, no other witnesses are claimed to be an eye witness of the occurrence. If the evidence rendered by PW-2, Pw-3 and PW-5 are unacceptable as regards their eye witness account, we find that there is no evidence on record to identify as well as to arrive at a conclusion that it is the accused persons Runu Roy, Tridip Thakuria and Asish Sen, who had caused the injuries to the deceased Babul Rabidas and Shyamal Rabidas, which had resulted in their death. Further, from the nature of the injuries sustained by the deceased Babul Rabidas and Shyamal Rabidas, it can be noticed that it was not a case where a particular assailant had assaulted them. On the other hand, the nature of the injuries indicate that such injuries could have been sustained only when several persons have assaulted them with different kind of weapons. The injury report we find is again in conformity with the evidence of PW-11, who had deposed that when the crowd had gathered in the place of occurrence had encircled the two deceased Babul Rabi Das and Shyamal Rabi Das while they were holding two knifes in their hands and were assaulted with shovel piece of wood and whatever they could find.

In view of the above, we do not find any infirmity in the conclusion arrived at in the judgment dated 15.07.2006 of the learned Sessions Judge, Cachar in Sessions Case No. 55/2008 acquitting the accused respondents namely Sri Runu Roy, Sri Tridib Thakuria and Sri Ashish Sen from the charges leveled against them.

In view of the above, we are of the view that the appeal is of no merit and the same accordingly stands dismissed. However, no order as to cost.

Send back the LCR along with a copy of this judgment immediately.