Rup Singh Bhumiz vs State of Assam

HITESH KUMAR SARMA

The Crl.A(J) 85/2014 and Crl.A(J) 86/2014, are preferred from jail, by the accused-appellants, Rup Singh Bhumiz and Fidrish Orang, respectively,

against the judgment and order, dated 11.06.2014, passed by the learned Additional Sessions Judge, Goalpara, in Sessions Case No. 329/2012,

convicting and sentencing the accused-appellants to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- each, with a default

clause, under Sections 302/34 IPC.

1) The case for the prosecution is that, the PW3, Markas Munda, lodged an FIR with the in-charge of Simlitola Police Outpost, on 24.9.2011, alleging

that on 23.9.2011, the accused-appellants came to his house in search of his brother/deceased, Marshal Munda, alleging that he had committed theft of

a bicycle on 15.9.2011, i.e. on the day “Karampuja†in the Simlitola Tea Estate. The accused-appellants found the deceased in the house of his

sister/PW5, dragged him out, and also assaulted, following which, he sustained injuries and was taken to Simlitola Primary Health Centre (hereinafter

referred to as ‘PHC’) for treatment. He was, then, referred for better medical treatment, to Goalpara Civil Hospital although on the way to

Goalpara Civil Hospital, he had to be hospitalized in the Dudhnoi PHC as his condition got deteriorated. He succumbed to his injuries in Dudhnoi PHC.

2) On receipt of the FIR, through Simlitola Police Out Post, the Rongjuli Police Station registered a case, being No. 80/2011, under Sections 302/34

IPC, investigated into it, collected evidence, and on completion of investigation, laid the charge-sheet against the appellants under Section 302/34 IPC.

3) After exhausting all the required legal formalities, the trial court framed a formal charge against the appellants, under Sections 302/34 IPC. The

appellants pleaded innocence to the charge and claimed to be tried. Therefore, the trial commenced.

4) During the trial, prosecution examined as many as 9 (nine) witnesses including the investigating officer and the Autopsy Doctor.

5) We have heard learned amicus curiae for the appellants, Mr. K.K. Bhatta. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor for the

state respondent. We have also perused the record of the learned trial court including the evidence and the impugned judgment.

6) On perusal of the entire evidence on record, it appears that PW1, PW7, Badri Choudhury and Radha Charan Ghosh, respectively, whom the

prosecution projected as eyewitnesses to the assaults inflicted upon the deceased by the accused-appellants, turned hostile and did not implicate the

accused-appellants with the commission of the alleged offence.

7) PW2 is the wife of the informant. It has come out from her evidence that, at about 11:00 am, on the date of occurrence, the accused-appellants

came to her house in an inebriated state and enquired about the whereabouts of the deceased, as the deceased was her husband’s younger

brother. This witness replied to the accused-appellants that she was not aware about the whereabouts of the deceased. The accused-appellants, were,

then, about the leave the house of this PW2, and then, a co-villager, namely, Renu Munda, appeared and informed the accused-appellants that the

deceased was in the house of PW5. Accordingly, they went to the house of PW5, dragged the deceased out from the house of the PW5, assaulted

him and took him away. The PW5, although claimed to have seen the accused-appellants dragging out the deceased, yet in her cross-examination, she

deposed that due to jungles she could not see clearly as to who had dragged out the deceased from her house. Her such evidence has made the

factum of her witnessing the accused-appellants dragging the deceased and then assaulting him doubtful as admittedly, due to the jungles she did not

clearly see the accused-appellants dragging out the deceased. PW2 also clearly, stated in her cross-examination, that she did not see as to who had

assaulted the deceased and where.

8) The evidence of PW3, informant/brother of the deceased is that, he was sick on the date of occurrence and he was at his house. The informant

himself also, as PW3, is heard saying in his evidence that he was unwell on that day and was on his bed. Although he deposed that the accused-

appellants came to his house in search of the deceased yet in his examination-in-chief itself, in the same breathe, he deposed that he did not come out

of his house because of his illness, and therefore, his evidence that the accused-appellants came to his house in an inebriated state and enquired about

the whereabouts of the deceased cannot be accepted to be the evidence of a witness who himself saw the accused-appellants in his house and heard

them enquiring about the deceased. He also got the information about the death of his brother/deceased from the Police Officer of the concerned

police station only, and therefore, he lodged the FIR. Such evidence of PW3 cannot be taken to have supported the prosecution case that the accused-

appellants had committed the offence alleged by the prosecution. He also admitted that he did not know as to who assaulted the deceased, meaning

thereby, that he has not implicated the accused-appellants.

9) PW5 is the eyewitness to the fact that the accused-appellants dragged away the deceased from her house, at about 10:00 am, and also assaulted

him. The evidence of PW5 shows that the accused-appellants came to her house in search of the deceased at about 10:00 am whereas the evidence

of PW3/informant shows that the accused-appellants came to her house at 11:00 am on the date of occurrence. That being so, if the evidence of the

PW3 is believed, the evidence of PW5, as regards the time of occurrence, cannot be believed. Because, the accused-appellants were alleged to have

gone to the house of the PW5 after they did not get the deceased in the house of PW2 and PW3 at about 11:00 am.

10) On the other hand, the prosecution is found to have tried to put the words in the mouth of PW1 and PW7 to the effect that the occurrence took

place at 4:00 pm. The prosecution tried to put such words in the mouth of PW1 and PW7 while it cross-examined them, after they were declared

hostile. If for the sake of argument, the prosecution version that the occurrence took place at 4:00 pm is accepted, then it did not take place at around

10:00/11:00 am, as deposed by the PW2, PW3 and PW5 respectively.

11) On perusal of the impugned judgment, it appears that the accused-appellants were convicted and consequently sentenced for the commission of

the alleged offence on the basis of circumstantial evidence, as indicated in paragraph-25 of the judgment. The circumstantial evidence, based on which

the learned trial court recorded the conviction of the accused-appellants, appears to this court to be no circumstantial evidence at all, except the one

regarding dragging out the deceased from the house of PW5, provided that, this court believes the evidence of PW5. Even if it is assumed for the sake

of argument, the evidence of PW5 is acceptable (already doubted her evidence, on this count, during the earlier discussion) to the effect that the

accused-appellants had dragged out the deceased away from her house, yet this only circumstance is not sufficient to rope the accused-appellants

with the commission of the alleged offence, as on examination of the remaining circumstantial evidence, enumerated by the learned trial court, they

are not found to be circumstantial evidence at all linking the accused-appellants with the commission of the alleged offence.

12) The Hon’ble Supreme Court has laid down the law as to what are the requirements that need to be established by the prosecution to prove a

case rests on circumstantial evidence, in the case of Sharad Birdhi Chand Sarda vs State Of Maharashtra reported in AIR 1984 SC 1622. The

relevant paragraph of the above decision is reproduced below for convenience.

“152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be

fully established: (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 Paharashtra

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. 153. These five golden principles, if we may say so,

constitute the panchsheel of the proof of a case based on circumstantial evidence.â€​

13) So, on consideration of the circumstantial evidence, indicated in the impugned judgment, this court does not find that they are, in fact,

circumstances at all not to speak of their constituting a chain leading to an irresistible conclusion that it was none but the accused-appellants who had

committed the crime. While arriving at such decision, this court has also considered the facts that the time, at which the accused-appellants allegedly

dragged away the deceased, is so inconsistent in the evidence of PW2 and PW3, with that of PWs 5, 1 & 7 that there is risk of taking any of them in

confidence as regards the time of the occurrence to establish the theory of ‘last seen together’, particularly when PW5 stated in her evidence

that it was at 10:00 am that the accused appellants had dragged the deceased whereas the PW3 stated that the accused-appellants came to their

house at about 10:00/11:00 am, and as such, logically, the accused-appellants cannot go to the house of the PW5 at 10:00 am. The prosecution version,

if the evidence of PW1 and PW7 is taken into account, the occurrence took place at 4:00 pm. Such a huge difference of time, as indicated above,

might be the result of some embellishment. This court has also further noticed, on materials on record, that the deceased was recovered and sent to

the hospital for treatment while he was alive. But, there is no evidence, on record, as to where he was located in an injured state and who had taken

him to the hospital and the time at which he was recovered so as to link the accused-appellants with the time of recovery of the deceased in an injured

state to see the applicability of the ‘last seen together’ theory in the case. Once ‘last seen together’ theory is negated, in view of the

discussions on the evidence, as above, in the considered view of this court, the prosecution fails there itself. This court also likes to note that the other

circumstances, indicated by the learned trial court, in the impugned judgment, are not based on the evidence of the witnesses. As we have discussed

earlier that the credibility of the evidence of PWs 1, 2, 3, 5 and 7 are shakened due to the contradictions mentioned above, and therefore, such

evidence could not have been considered to be circumstances to link the accused-appellants with the commission of the alleged offence of murder of

the deceased.

14) In view of the above discussions, and findings recorded during such discussions, this court is of the view that the impugned judgment of conviction

of the accused-appellants and the consequent sentence imposed upon them, as aforesaid, appears to have not been based on evidence beyond

reasonable doubt. Therefore, the prosecution fails to prove the case against the accused-appellants beyond all reasonable doubt and as such they

deserve an order of acquittal. Hence, the impugned judgment is set aside and the appellants are acquitted on benefit of doubt.

15) Accordingly, the appeal is allowed.

16) The accused-appellants be released forthwith from jail, if they are not required in connection with any other case.

17) This court records its appreciation for the assistance rendered by learned Amicus Curiae. The learned Amicus-curiae be paid an amount of Rs.

7,500/- as remuneration.

18) Send down the LCR with a copy of this judgment.