Smti Labanya Deka, Lai Deka vs State of Assam

Ujjal Bhuyan, J

01.This is a jail appeal preferred by the convict-Smti. Labanya Deka @ Lai Deka against the judgment and order dated 12.05.2014, passed by the

leaned Sessions Judge, Lakhimpur at North Lakhimpur in Sessions Case No.84(NL)/2010 convicting the appellant under Sections 302/201 of the

Indian Penal Code (IPC) whereafter, she was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default, to

undergo rigorous imprisonment for 3 months for the offence under Section 302 IPC and also to undergo rigorous imprisonment for 3 years and to pay

fine of Rs.3,000/-, in default, to undergo rigorous imprisonment for 3 months for the offence under Section 201 IPC; both the sentences to run

concurrently.

We have heard Mr. Z Hussain, learned Amicus Curiae for the appellant and Ms. B Bhuyan, learned Addl. Public Prosecutor, Assam. We have

also heard Mr. RK Dutta, learned counsel for the informant.

Prosecution case in brief is that in the evening of 13.01.2003, nephew of the informant Pankaj Barua went to attend Magh Bihu feast, but went

missing thereafter. Police was informed about the missing of Pankaj Barua on 19.01.2003. Police as well as Circle Officer of Narayanpur Revenue

Circle recovered the dead body, which was gagged and buried, from the enclosed yard of the house of Sri Dimbeswar Deka. Informant mentioned the

names of the accused persons as under: -

Smti. Lai Deka @ Labanya Deka,

Sri Dimbeswar Deka,

Sri Kolia @ Sada Barua, and

Sri Nabajyoti Phukan @ Akoni Phukan.

The said first information was registered as Bihpuria PS Case No.25/2003, under Sections 302/201/34 IPC.

Police conducted the investigation and after completion of the same, submitted charge sheet. Being a sessions triable case, it was taken up by the

learned Sessions Judge, Lakhimpur at North Lakhimpur. Sri Sada Baruah @ Kolia, Sri Dimbeswar Deka, Smti. Labanya Deka @ Lai Deka and Smti.

Niru Baruah were charge sheeted and against them, charges were framed under Sections 302/34 IPC and under Sections 201/34 IPC. The accused

persons pleaded not guilty and claimed to be tried. Prosecution examined as many as 16 witnesses whereafter, the accused were examined under

Section 313 of the Code of Criminal Procedure, 1973 (CrPC). Defence plea was that of complete denial. However, the accused persons did not

adduce any witness. After hearing the matter, learned Court below came to the conclusion that there were no cogent and positive material against

accused Dimbeswar Deka, Sada Baruah and Smti. Niru Baruah under Sections 302/201/34 IPC. Accordingly, the said three accused persons were

acquitted from the charges levelled against them. On the other hand, in so far appellant Smti. Labanya Deka @ Lai Deka was concerned, learned

Court below held that prosecution had proved its case beyond all reasonable doubt. Consequently, appellant was convicted under the aforesaid

sections and sentenced accordingly.

Mr. Z Hussain, learned Amicus Curiae submits that like the acquitted accused persons, there was no material on record to convict the appellant

under Sections 302/201 IPC. Therefore, conviction of the appellant under the aforesaid sections is wholly untenable and cannot be sustained; at best it

may be a case of disappearance of evidence, in which event, Section 201 IPC may be attracted, but certainly it is not a case of murder under Section

302 IPC. Appellant is in custody since 12.05.2014 i.e., from the date of delivery of judgment. Prior to that she was arrested on 20.01.2003 but was

granted bail on 30.01.2004. Therefore, it is a fit case for allowing the appeal by setting aside the impugned conviction.

On the other hand, Ms. B Bhuyan, learned Addl. Public Prosecutor submits that there is no infirmity in the view taken by the learned court below.

It is in evidence that following information furnished by the appellant, the dead body of the victim was recovered, that too, within the compound of the

appellant. In such circumstances, appellant was rightly convicted by the trial court.

Mr. Dutta, learned counsel for the informant supports the submissions made by Ms. B Bhuyan.

Submissions made by learned counsel for the parties have been considered. Also perused the materials on record.

At the outset, it may be mentioned that present is a case of conviction based on circumstantial evidence. It is not necessary to restate the law

relating to conviction based on circumstantial evidence. Through numerous judicial pronouncements, the following principles governing conviction

based on circumstantial evidence can be culled out: -

Circumstances from which the conclusion of guilt is to be drawn should be fully established;

Circumstances should be conclusive in nature;

Facts so established should be consistent only with the hypothesis of guilt of the accused and inconsistent with his innocence;

The circumstances should exclude the possibility of guilt of any person other than the accused; and

There must be a chain of events which can lead to only one conclusion that no person other than the accused could have committed the offence.

Keeping the above broad principles in mind, we may proceed to examine the evidence of the relevant witnesses. But before that it would be

apposite to briefly advert to the two sections under which appellant has been convicted.

Section 201 IPC deals with an offence for causing disappearance of evidence of offence, or giving false information to screen offender. It says

that whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to

disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information in respect of the offence

which he knows or believes to be false shall be punished with an imprisonment of either description for a term which may extend to seven years, and

shall also be liable to fine, if it is a capital offence.

As per Section 299 IPC, whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily

injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Culpable homicide is murder under Section 300 IPC. It says that if the act by which death is caused is done with the intention of causing death or

if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is

caused, or if it is done with the intention of causing bodily injury to any person which in the ordinary course of nature is sufficient to cause death, or if

the person committing the act knows that the act is so imminently dangerous that it in all probability it must cause death or such bodily injury as is likely

to cause death. This is subject to the five exceptions carved out in Section 300 IPC.

Let us now examine the evidence on record to see whether the above ingredients constituting offences under Sections 302/201 IPC vis-a-vis the

appellant have been satisfied.

PW-1 Sri Deba Kanta Duwarah, Village Headman stated that the occurrence took place on 13.01.2003. It was a ‘Uruka’ or eve of Magh

Bihu. On that day, Pankaj Baruah, aged 11/12 years and son of Lt. Dinesh @ Dineswar Baruah went missing from the village. Mother of the child

had told him that her son became untraceable. Search was made in the village for 2/3 days but no trace of Pankaj Baruah was found. A meeting was

convened by the villagers. On the next day, Sri Hem Chandra Gogoi, brother-in-law of accused Labanya Deka informed him that he has found the

trace of the missing boy and took him to the house of Labanya and told him that Labanya knew the whereabouts of the missing child. Initially Labanya

Deka did not say anything but after some persuasion, she stated that Pankaj was killed by her nephew whose surname was Phukan and by another

youth from Tezpur. The dead body was kept concealed in her homestead land behind her residence. This information was passed on to the villagers

who informed the police. Police came along with Circle Officer. Labanya Deka led the police to a place which she identified as the place where the

dead body was concealed. In the presence of the police and the Circle Officer, the place was dug up and the dead body of Pankaj Baruah was

recovered, which was identified by the relatives of the deceased. The Circle Officer made inquest on the dead body. Ext-1 was the inquest report.

PW-1 further stated that 4/5 days after recovery of the dead body, police apprehended one Nepal Ghosh from Chariduwar and brought him to the

village. According to him, on the day of occurrence, he along with Pankaj Baruah and another boy, whose surname was Phukan, visited the house of

Labanya Deka. Pankaj was gagged by him. He was taken out from the house of Labanya and thereafter killed. His dead boy was concealed in a

gunny bag and buried in the homestead land of accused Labanya Deka.

In his cross-examination, PW-1 stated that to his knowledge, accused Labanya Deka did not take part in the commission of murder of Pankaj

Baruah.

PW-2 Robin Baruah was the younger brother of the informant, Sri Himeswar Baruah; therefore, deceased Pankaj Baruah was his nephew.

According to him, police visited the house of accused Smti Lai Deka and on being led by her, police recovered the dead body of the deceased from

the homestead of Lai Deka where potato was cultivated.

Informant Himeswar Baruah deposed as PW-3. He stated that deceased Pankaj Baruah had gone out of home to attend Magh Bihu feast in the

evening of 13.01.2003. When he was found not available in the feast, the villagers searched for him but he could not be traced out. On 18.01.2003,

PW-1 stated that Pankaj Baruah could be available in the village itself. Later on police visited the house of accused Lai Deka and on being led by her,

police recovered the dead body of Pankaj Baruah from her homestead. Executive Magistrate was present at the time of recovery of the dead body.

PW-3 identified the dead body as that of Pankaj Baruah. According to PW-3, a few days thereafter, police apprehended Sri Nepal Ghosh who

showed the place of occurrence. He also stated that on the day of occurrence, Pankaj Baruah was taken to the house of Smti. Lai Deka; he was

taken to the paddy field situated nearby and after he was killed, the dead body was kept concealed in the homestead of accused Labanya Deka.

In his cross-examination, he stated that the villagers used to talk that the deceased Pankaj Baruah was killed by Nepal Ghosh and Nabajyoti

Phukan in the paddy field though he did not notice any dragging marks of the deceased from the paddy field to the homestead of accused Lai Deka.

Mother of the deceased Smti. Dipali Baruah deposed as PW-4. While narrating the facts centering around the Magh Bihu feast, she stated that

her son Pankaj Baruah had gone to attend the feast at about 6 pm accompanied by his friends, viz, Sri Homen Baruah and Sri Baba Baruah. Her

daughter Simpi Baruah accompanied Pankaj to the feast while she stayed back at home. When the daughter returned home at about 11 pm, she was

not accompanied by Pankaj Baruah. In this connection, she went to the house of Labanya Deka to enquire about her son but Labanya Deka told her

that Pankaj had not come to her house. After six days of missing of her son, Lai Deka disclosed to her younger sister, Runu Gogoi that Pankaj Baruah

was killed by Nepal Ghosh and Nabajyoti Deka and later on had dumped the dead body in her homestead. Runu Gogoi disclosed this to her husband,

Hem Chandra Gogoi, who thereafter informed PW-1. Police had come to the residence of Lai Deka @ Labanya Deka and took her to the police

Station. Later on, she led the police to her homestead and showed the place where the dead body was buried.

Dr. Tulshi Prasad Chutia who was the Medical and Health Officer-I, North Lakhimpur Civil Hospital deposed as PW-11. He had conducted

autopsy on the dead body of Pankaj Baruah. Ext-3 is the post mortem report. In the course of examination, he found the following: -

“ A decomposed body of a made child.

Depressed lower jaw.

Blood clot with foul smelling discharge inside scrotum with lacerated testis both sides.

Retroperitoneal blood clot with foul smelling discharge with rupturedleft kidney.

Laceration at medial part of right thigh.

Oedemtim bips both upper and lower.

Continuous ligature mark starting from the angle of the mouth on both sides to the occipital area of scalp with a knot impression over occipital area at

centre.â€​

According to him, all the injuries were in the process of decomposition. Those were ante mortem in nature. The injuries were found sufficient to

cause death of a person in the ordinary course. He opined that the deceased had died due to shock and haemorrhage as a result of multiple injuries

sustained in different parts of the body as well as in the vital parts of kidney.

From the evidence of the Doctor PW-11, it was established that death of Pankaj Baruah was homicidal, but the moot question is who caused the

death of Pankaj Baruah? Learned Sessions Judge has found that the other three accused persons had not caused the murder of Pankaj Baruah and

had given them the benefit of doubt. Question for consideration is whether Labanya Deka @ Lai Deka had caused the murder of Pankaj Baruah and

thereafter had caused disappearance of evidence of the murder?

Resuming the testimony of the prosecution witness, we find that PW-14 is Sri Manoranjan Gogoi, who at the relevant point of time was serving as

the Circle Officer of Narayanpur Revenue Circle. According to his testimony, he had gone to the place of occurrence along with police. On arrival

and on being asked, Smti. Labanya Deka @ Lai Deka led them to the place where the dead body of Pankaj Baruah was kept concealed under earth.

After digging the earth for about 1 foot at the place identified by the appellant, the dead body was recovered which was kept inside a gunny bag.

After the dead body was taken out from the gunny bag, inquest report was prepared. Dead body was identified by relatives of the deceased viz,

Himeswar Baruah and Robin Baruah. The deceased was about 11 years of age. About 2/3 signs of injury were found on the dead body. A lacerated

injury on the back of the deceased was present. There was a long injury mark running from back to hip with injuries on thigh as well.

In his cross-examination, he stated that though the thumb impression of accused Labanya Deka was taken on the inquest report Ext-1, he did not

know as to who had endorsed the thumb impression.

PW-15 Lakheswar Chelleng was the Inquiry Officer. He stated that a missing information was received on 14.01.2003 regarding missing of

Pankaj Baruah on the previous evening. GD entry was made which was exhibited as Ext-4. While investigation was going on, the related FIR was

lodged. During investigation, he could gather information that Pankaj Baruah was killed and his dead body was dumped in the potato garden of

accused Labanya @ Lai Deka. After informing his superior officials, he proceeded to the place of occurrence along with Executive Magistrate and

other police officials. According to him, accused Lai Deka told the police party that her nephew Akoni Phukan @ Nabajyoti along with another boy

had killed Pankaj Baruah and had buried his dead body in her potato garden. She led the police party to the place where the body was buried and from

where the dead body was recovered. According to him, Nepal Ghosh had disclosed that after Pankaj Baruah was killed, he along with Nabajyoti

Phukan @ Akani and accused Labanya Deka took the dead body to the potato garden of Labanya Deka in a gunny bag and buried the body there.

In his cross-examination, PW-15 stated that the dead body was buried in the potato field of Lai Deka adjacent to her dwelling house. He admitted

that Lai Deka did not disclose before the police that she was entangled in committing the offence of murder of Pankaj Baruah. He also stated that

witness Dipali Baruah did not state before him that six days after the occurrence, accused Lai Deka had disclosed the fact of murder of Pankaj

Baruah to her sister Runu Gogoi.

PW-16 Sri Mukut Kakati was the Police Officer who had submitted the charge sheet.

In her examination under Section 313 CrPC, appellant consistently stated that she had not committed any crime as alleged and that she was

innocent.

This was the evidence adduced by the prosecution witnesses. On the basis of such evidence, learned Sessions Judge recorded the following

circumstances, which according to him, conclusively proved the guilt of appellant Labanya @ Lai Deka. The circumstances so recorded are extracted

hereunder: -

“ (i) That, the deceased was taken to her house in the evening time on the day of occurrence by one Nepal Ghosh and Nabajyoti Phukan. (ii) That,

after the occurrence when the mother of the deceased went to the house of the accused, Smti. Lai Deka in search of her missing son, accused, Smti.

Lai Deka did not disclose anything and told her that the deceased did not come to her house.

(iii) That, after few days of the occurrence, she disclosed the matter relating to killing of the deceased to her sister, Smti Runu Gogoi, who

subsequently disclosed the matter to her husband, Sri Hem Chandra Gogoi, who eventually informed the matter to Sri Deba Kanta Duwarah, the

Gaonburah.

(iv) That, accused, Smti Labanya Deka @ Lai Deka led police and Executive Magistrate to the place where the dead body was kept concealed.â€​

From a cumulative assessment of the evidence on record what is clearly discernible is that none of the prosecution witnesses had deposed that

petitioner had murdered or committed any act to cause the death of the deceased Pankaj Baruah. It was only in the evidence of PW-15 Sri

Lakheswar Chelleng, the Investigating Officer that Sri Nepal Ghosh had disclosed to the police during investigation that after killing Pankaj Baruah, he

along with Nabajyoti Phukan @ Akani and appellant Labanya Deka @ Lai Deka took the dead body to the potato garden of Lai Deka in a gunny bag

and buried the body there. Such a statement made before the police is not admissible in evidence in view of the clear prohibition in Section 25 of the

Indian Evidence Act, 1872. Even PW-1 in his cross-examination clearly stated that as far as he knew, accused Labanya Deka did not take part in the

commission of murder of Pankaj Baruah. All that he stated in his evidence-in-chief was that Hem Chandra Gogoi, the brother-in-law of the appellant

had informed him that the missing boy i.e., Pankaj Baruah had been traced out whereafter, he took PW-1 to the house of Labanya Deka stating that

Labanya Deka knew the whereabouts of the missing child. When PW-1 asked Labanya Deka about the missing child, she initially refused to say

anything, but later on prodded by her brother-in-law, she replied that Pankaj Baruah was killed by her nephew and another youth whereafter, the dead

body was kept concealed in her homestead land.

PW-1 stated that he was present when Labanya Deka led the police to the place where the dead body was kept concealed. The dead body was

dug out in the presence of the Circle Officer, PW-14, who thereafter prepared Ext-1 inquest report where PW-1 signed as a witness. This narrative

of appellant leading the police to the place where the dead body was buried and wherefrom the dead body was extricated was supported by PW-3,

PW-5, PW-10, PW-12, PW-14 i.e., Circle Officer and PW-15 Investigating Officer.

As per Section 27 of the Indian Evidence Act, 1872, information received from the accused leading to discovery in consequence of such

information even when the accused is in custody of a police officer, whether it amounts to a confession or not, as relates distinctly to the fact thereby

discovered, may be proved. Even if the evidence pertaining to the appellant showing the spot where the dead body was buried and extricated is

accepted, coupled with the other evidence on record, it may only implicate the appellant to the limited extent of having knowledge about the murder of

Pankaj Baruah and concealment of the dead body. To that extent, the charge under Section 201 IPC may be fastened on the appellant but certainly,

there is no evidence on record to show that appellant had committed the offence of culpable homicide amounting to murder by intentionally causing the

death of Pankaj Baruah.

If that be the position, we are afraid the circumstances culled out by the learned Court below as having proved the guilt of the appellant would not

be sustainable vis-a-vis the charge of murder.

Therefore, in the light of the above, while we affirm the conviction and sentence of the appellant under Section 201 IPC, she is acquitted of the

charge under Section 302 IPC.

Appellant was sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.3,000/-, in default, to undergo rigorous

imprisonment for 3 months for the offence under Section 201 IPC. According to the learned Amicus Curiae, appellant is in custody since 12.05.2014.

Accordingly and in the light of the above, appeal is partly allowed. Since the appellant has completed the jail term for the offence under Section

201 IPC, she shall be released from imprisonment forthwith, if not required for any other offence.

We also note that PW-4 Smti. Dipali Baruah had suffered the tragic loss of her minor son. Section 357A CrPC provides for victim compensation.

State of Assam has framed scheme for victim compensation. Central Government has also created fund for victim compensation. In view thereof,

District Legal Services Authority, Lakhimpur shall do the needful for payment of victim compensation to PW-4 as per scheme after due verification.

However, as an interim measure, we direct the Assam State Legal Services Authority to pay a sum of Rs.2, 00, 000.00 (Rupees two lakhs) to PW-4

Smti. Dipali Baruah within 6 (six) weeks from the date of receipt of a certified copy of this order.Â

Before parting with the record, we place on record our appreciation for the sincere assistance rendered by Mr. Z Hussain, learned Amicus Curiae,

who shall be paid his fees by the Assam State Legal Services Authority as per schedule of fees notified.

Registry to send down the LCR forthwith and inform the Member Secretary, Assam State Legal Services Authority and Secretary, District Legal

Services Authority, Lakhimpur. Â