Raghu Rajput vs State Of Assam

N. Sailo, J.

This is an appeal against the Judgment dated 10.12.2013 passed by the learned Sessions Judge, Sivasagar in Sessions Case No.167 (S-S)/2010

whereby, the accused/appellant (appellant hereafter) was convicted U/s 302 of the Indian Penal Code (IPC) and he was sentenced to life

imprisonment and to pay fine of Rs.5000/- with a default clause.

The case of the prosecution in brief is that an FIR was lodged by one Simanta Gogoi on 22.07.2010 before the Officer-in-charge of Sivasagar

Police Station to the effect that at around 1 o’clock the previous night, Sri Mohan Saura, a worker in his stone factory informed him that Sri Prabin

Saikia who used to work as a driver in his factory and was living in a rented house near his residence was severely injured after being hit by a vehicle.

That he was brought in a moribund state from the place of accident and was kept in the labourer’s quarter within the factory campus. When he

went to the place where Prabin Saikia was kept, he found him dead. He then informed Sivasagar Police Station about the incident over phone and

since he suspected that he might have been murdered, he lodged an FIR. The FIR dated 22.07.2010 is reproduced below for better appreciation:-

“To,

The Officer-In-Charge

Sivasagar Police Station

Date-22/07/2010

Sub: F.I.R

Sir,

Humble submission is that last night around 1 o’clock while I was sleeping at my house, Sri Mohan Saura, a worker of my stone factory came to

my house, awoke me by shouting and informed me that Prabin Saikia who used to work as driver in my factory and who used to live in a rented house

near my residence, had been severely injured upon being hit by a vehicle. He also informed me that the said driver was brought in a moribund state

from the P.O. i.e. pucca road in front of the house of Smti Guhi Konwar and kept him in the labourer’s quarters within the factory campus.

Immediately thereafter I accompanied by two neighbours went there and fund that Prabin Saikia had already died. Immediately I informed the

Sivasagar P.S. about the incident over phone. I saw blood sticking to the wall of the room I which Prabin Saikia was lying. However I could not notice

it properly as it was night.

As I suspect the incident to be a murder I have lodge this F.R.R to take necessary action in this regard and oblige.â€​

Yours faithfully

Sd/- Sri Simanta Gogoi

S/o Sri Jogendra Nath Gogoi

Kathpar Gaon,â€​

Sivasagar Police Station Case No.387 of 2010 U/s 302 IPC was then registered and the Officer-in-charge of the Police Station i.e., Sub-Inspector

Sri Khirod Dey himself investigated into the case. Upon completion of the investigation, charge sheet was filed before the Chief Judicial Magistrate,

Sivasagar whereafter, the case was committed to the Sessions Judge, Sivasagar. Charge U/s 302 IPC was then framed against the appellant and to

which, he pleaded not guilty and claimed to be tried. Consequently, trial began against the accused.

During trial, the prosecution examined as many as 10 prosecution witnesses while the defence did not produce any witness for examination. The

accused was then examined under Section 313 of the Code of Criminal Procedure. Be it stated herein that the Judicial Magistrate First Class,

Sivasagar had also recorded the confessional statement of Sri Bikash Gogoi (PW-4) under Section 164 Cr.P.C. Upon completion of the trial, the

learned Sessions Judge, Sivasagar vide Judgment dated 10.12.2013 convicted the appellant under Section 302 IPC and sentenced him to undergo

imprisonment for life and a fine of Rs.5000/- with a default clause.

Mr. AR Shome, the learned counsel for the appellant submits that from the evidence of the PW-1 and PW-9, it can be seen that during the trial, the

prosecution witnesses had improved their case in as much as their deposition or version before the trial court was not similar to what they had stated

before the police in their statements recorded U/s 161 of the Cr.P.C. He submits that according to PW-1, while he was sleeping in a room in his

factory on 21.07.2010 at around 10 o’clock at night, upon being informed by Sri Mohan Saura about the accident that had taken place, he

alongwith one Sri Moitendra Gogoi who was his tenant staying at the top floor of his house proceeded to the place of occurrence. They took along Sri

Pradip Gogoi with them as well. Upon reaching the place, they entered the room of Prabin Saikia and found him lying dead on the bed with injury on

his head. When he asked the appellant what had happened, he told him that the deceased was hit by a vehicle on the road and therefore, he bought

him into the house. However, Mr. AR Shome submits that the said witness not only failed to mention this fact in his statement recorded by the police

under Section 161 Cr.P.C. but he also did not mention about the others i.e. Sri Moitendra Gogoi and Sri Pradip Gogoi having accompanied him to the

place of occurrence. He therefore submits that the evidence of PW-1 being unreliable, the same cannot be relied upon to implicate the appellant in the

alleged crime, much less, to convict and sentence him. Similarly, by referring to the deposition of the Investigating Officer (PW-9), he submits that

indisputably, the sketch map of the crime scene prepared by the Investigating Officer neither reflected the case number nor contained his signature.

The GD Entry No.884 dated 22.07.2010 made on receipt of the FIR was also not submitted before the Court. Furthermore, the alleged weapon used

for killing the deceased was not recovered and produced before the Trial Court. He therefore submits that under such circumstances, the conviction

and sentence of the appellant cannot be sustained and therefore, the impugned judgment passed by the trial court should be set aside and the appellant

acquitted.

5.1. Mr. AR Shome further submits that no reliance can be placed upon the confessional statement of Sri Bikash Gogoi said to have been recorded

under Section 164 Cr.P.C. in as much as the recording Magistrate was not examined during trial. He also submits that according to the FIR lodged by

Sri Simanta Gogoi, it was reported to be a case of road accident but on the other hand, the prosecution had tried to make out a case of murder

punishable U/s 302 IPC. He submits that the incident reported in the FIR being the first version of the occurrence, the same has to be given due

weightage i.e., death of the deceased on account of road accident. But from the testimony of the prosecution witnesses, including the so-called eye

witnesses, their story is totally different from the version set out in the FIR. Therefore, the variation has only made the prosecution’s case to be

unreliable rendering the conviction of the appellant U/s 302 IPC unsustainable. In support of his submission Mr. AR Shome relies upon the following

decision:-

(i) Budhua Mura Vs. State of Assam, 2002 (2) GLT 103;

(ii) Kipa Sero Vs. State of Arunachal Pradesh, 2005(4) GLT 86.

Appearing for the State, Ms. B Bhuyan, the learned Additional Public Prosecutor submits that in fact there are no contradictions in the statement of

prosecution witness No.4. His deposition before the trial court was similar to the one recorded in his confessional statement made under Section 164

Cr.P.C. His statements are also corroborated by the medical evidence and therefore, his version is only consistent and reliable. From the evidence led

by the prosecution, it can be safely inferred that it was the appellant who had murdered the deceased. Therefore, after appreciating all the materials

and evidence available against the appellant, learned trial court was right in convicting him U/s 302 IPC.

We have heard the learned counsel for the rival parties and perused the materials on record, including the Lower Court Record (LCR).

From a perusal of the FIR submitted by PW-1, it can be seen that it was reported that the deceased was severely injured upon being hit by a

vehicle and he was evacuated in moribund state from the pucca road (the place of occurrence) in front of the house of Smti Guni Konwar and kept in

labourer’s quarter within the factory campus. However, suspecting it to be a case of murder, Sri Simanta Gogoi lodged the FIR. PW-4 Bikash

Gogoi claimed to have witnessed the alleged crime. In his deposition before the trial court, he stated that he saw the appellant give the deceased a

blow on the backside of his head with a lever after which, he died on the spot. He and Mohan Saura then hid themselves amongst the stones outside

the house out of fear. The appellant thereafter came up to them and told them that the dead body should be taken out from the room and thrown

outside. In response, he asked the appellant to go back to the room while he volunteered to remain on the look-out in case anyone came. Thereafter,

he ran away out of fear to his house. He was examined by the police and he was a witness to the inquest report of the deceased. His confessional

statement was recorded by a Magistrate. During his cross examination, PW-4 stated that after the incident, he fled to his house from the place of

occurrence and informed his mother Rupmoni Gogoi about the incident. However, he did not disclose the same fact before the police or the

Magistrate. He also denied that he was taken by the police in the morning along with others to the place of occurrence for interrogation. He also

denied having informed Simanta Gogoi about the incident and further deposed that Mohan Saura witnessed the incident as well.

PW-5 Mohan Saura deposed that he worked as labourer in the crusher machine of Simanta Gogoi at Banmukh. The deceased Prabin Saikia was

the driver who drove the vehicle used for carrying stones. Around 8 pm on night of the incident, he along with the appellant and the deceased had a

meal together in a hotel. After the meal, he slept in his room and woke up around 11 a.m. and saw the appellant sleeping on his bed. In the meantime,

the stone carrying vehicle arrived and the handyman Bikash came to their room. At that time, Prabin Saikia, the deceased, also arrived and he and the

appellant started quarrelling. The appellant asked Bikash for a lever of vehicle to assault the deceased. The appellant then took out an iron rod from

underneath the bed and gave a blow on the head of the deceased. After receiving the blow, Sri Prabin Saikia fell on the ground. He and Bikash then

out of fear fled from the place.

The Investigating Officer i.e., Khirod Dey was examined as PW-9 and he deposed that on 22.07.2010, he was in-charge of Sivasagar Police

Station. Around 1.30 a.m., Sri Simanta Gogoi lodged the FIR whereupon, Sivasagar PS Case No.387 of 2010 U/s 302 IPC was registered and the

investigation conducted by himself. Accompanied by a police party, he went to the place of occurrence on the night itself. Upon reaching, he found a

two storied building near the stone crusher machine at Banmukh Katpara village and he saw the dead body of Prabin Saikia lying in a pool of blood on

the upper floor of the said house. He also found blood on the body and in the room and also noticed blood sticking on the wall. The following morning,

Executive Magistrate Sri Dhrubajyoti Bora prepared the inquest report while he prepared a sketch map of the place of occurrence and recorded the

statements of the witnesses. He brought five persons to the police station for interrogation including the appellant. The appellant confessed to have

committed the alleged crime while two others viz; Bikash Gogoi and Mohan Saura said that they witnessed the incident. Their statements were also

recorded by the Magistrate under Section 164 Cr.P.C. The appellant said that he killed the deceased by giving him a blow with an iron lever and that

he had thrown the lever used into the water nearby. The lever was searched for but, it was not found. Nevertheless, he arrested the appellant and the

post mortem examination of the dead body was done at Sivasagar Civil Hospital. After completing the investigation, he submitted the charge sheet. In

his cross-examination, he deposed that he neither put his signature nor put the case number in the sketch map of the place of occurrence he had

prepared. He further stated that although he found blood sticking on the wall, he did not collect any sample for chemical examination.

Though the appellant was examined under Section 313 of the Cr.P.C. and questions put to him by the Court from what appeared against him in the

evidence of the prosecution, he however plainly denied of having any role in the alleged crime.

PW- 3 Dr. Pradip Kumar Saikia in his deposition deposed that he was posted as Senior Medical and Health Officer at Sivasagar Civil Hospital on

22.07.2010 and he conducted post mortem examination on the dead body of Prabin Saikia after it was identified by Constable Krishna Das and the

relatives of the deceased. Upon examining the dead body, he found four numbers of sharp cut injuries over the left occipito-temporal area of the head.

Clotted blood was present around the head and the face mixed with brain matter. In his opinion, death was caused due to severe injuries to the head

and brain leading to intra-cranial haemorrhage and brain-death and it was ante-mortem in nature. According to him, the injury could be caused by

sharp cutting weapon and the injuries were homicidal in nature.

From a perusal of the evidence led by the prosecution, what can be noticed is that the investigation was conducted by the investigating agency

most perfunctorily. The alleged weapon said to have been used for striking the deceased was not recovered and produced before the Court and the

concerned Magistrate who recorded the confessional statement of Simanta Gogoi was not even examined during trial. Blood samples found at the

place of occurrence or where the deceased was found were also not collected and sent for scientific examination. The post-mortem report revealed

that there were four sharp cut injuries found over the left occipital temporal area of the head of the deceased. However, according to the prosecution

witnesses, the appellant was said to have struck the deceased with a lever/iron rod. Striking a person with a lever/ iron rod may not result in sharp cut

injuries. Therefore, there appears to be a disconnect between what the prosecution witnesses were saying and what came out of medical evidence.

The Apex Court in the case of Md. Aman & Anr. Vs. State of Rajasthan reported in 1997 Crl. Law Repo rt (SC) 452 held that seized articles are

the best evidence for proving a case and if such seized articles are not produced and exhibited during trial, the same would be fatal to the case of the

prosecution. In the instant case, as may be noticed, the alleged weapon was not recovered and produced before the trial court. It was therefore, only

the testimony of the prosecution witnesses and the confessional statement recorded by the Magistrate which indicated that an iron rod/lever was used

for giving a blow on the head of the deceased. However, what cannot be over-looked is that the Magistrate who recorded the confessional statement

was not examined during the trial. Therefore, the confessional statement of Sri Bikash Gogoi, the PW-4 cannot be taken into account for convicting

the appellant.

PW Nos. 4 and 5 claimed to be eye-witnesses to the alleged crime and according to them, the appellant with an iron rod/lever struck Prabin Saikia

on his head as a result of which, he succumbed to his injury on the spot. However, as already noticed, the weapon of assault was not recovered and

produced before the Court. PW-3 Dr. Pradip Saikia in his deposition before the Court stated that he conducted post mortem examination on the dead

body of Prabin Saikia on 22.07.2010 while he was posted as Senior Medical Health Officer at Sivasagar Civil Hospital. Upon examination of the dead

body after identification, he found 4 (four) numbers of sharp cut injuries present over the left occipital temporal area of the head and clotted blood was

present around the head and face mixed with brain matter. The cut injury on the occipital region was 7 c.m. in length and 4 c.m. in depth. It was deep

and up to the brain. The other 3 (three) cut injuries on the temporal region were of 7 c.m. x 2 c.m., 4 c.m. x 1.5 c.m. and 1 c.m. x 1 c.m.

approximately. In his opinion, such injuries could be caused by sharp cutting weapon and the injuries were homicidal in nature. On the other hand,

PWs 4 and 5 deposed that the appellant gave a blow on the backside of Prabin Saikia on head with lever/iron rod. Thereafter, Prabin Saikia fell down

on the ground and died on the spot. Therefore, as discussed above, there is clearly a contradiction in the manner of commission of the alleged offence

as per the version of PW Nos. 4 and 5 on the one hand and the post mortem examination report of PW-3 on the other hand.

It may be stated herein that in the context of Indian Criminal Jurisprudence, there are basically three cardinal principles viz; (i) the prosecution has

to prove its case beyond all reasonable doubt; (ii) the accused must be presumed to be innocent until proven guilty; and (iii) the onus of the prosecution

never shifts. In a criminal trial, it is not at all obligatory on the accused to produce evidence in support of his defence, except in a case where Section

106 of the Indian Evidence Act, 1872 comes into play in which case the accused has to explain the circumstances which were specifically within his

knowledge.

In the instant case, from the evidence led by the prosecution and the materials available, it cannot be said that the prosecution was able to establish

the case against the appellant with proof beyond reasonable doubt. Thus, considering the matter in its entirety, appellant only deserves to be given the

benefit of doubt on the charge framed against him. Therefore, under the facts and circumstances of the case and upon due consideration, we are of

the view that the impugned Judgment of conviction and sentence passed by the learned trial court against the appellant cannot be sustained.

In the result, the appeal is allowed. Impugned Judgment dated 10.12.2013 passed by the learned Sessions Judge, Sivasagar in Sessions Case

No.167 (S-S)/2010 is hereby set aside and the appellant is acquitted of the charge U/s 302 IPC. The appellant shall be set at liberty forthwith.

Registry to send back the LCR.