Sukra Bhakta vs State Of Assam

Hitesh Kumar Sarma,

This is an appeal, preferred from jail, by the accused-appellant, against the judgment and order, dated 2.5.2015, passed by the learned Additional

Sessions Judge, Dibrugarh, in Sessions Case No. 88/2010, convicting and sentencing the accused-appellant to undergo rigorous imprisonment for life

and to pay a fine of Rs. 5,000/- with a default clause, under Section 302 IPC.

1) The fact of the prosecution case is that, the informant, examined as PW1, lodged an FIR with the Barbaruah Police Station, alleging that while

herself and her members of the family including her mother were attending a marriage ceremony of her paternal uncle’s son, the accused dragged

her mother from the marriage ceremony itself, and thereafter, killed her. The occurrence took place on 18.4.2010.

2) On receipt of the FIR, on the above facts, Barbaruah Police Station registered a case, being No. 53/2010 under Section 302 IPC, investigated into

it, collected evidence, and on completion of investigation, laid the charge-sheet against the accused-appellant under Section 302 IPC.

3) After exhausting all the required legal formalities, the trial court, framed a formal charge against the accused-appellant, under Section 302 IPC. The

accused-appellant pleaded innocence to the charge and claimed to be tried. Therefore, the trial commenced.

4) We have heard learned amicus curiae for the appellant, Mr. R. De. Also heard Mr. M.P. Phukan, learned Additional Public Prosecutor for the

state respondent No. 1.

5) We have also perused the record of the learned trial court including the evidence of the prosecution witnesses and the impugned judgment.

6) On perusal of the entire evidence on record, this court is of the view that to avoid unnecessary narration of the evidence on record, we will

separate the evidence which is not relevant. The evidence of PW1, PW2, PW5, PW6 and PW8 are not found implicating the accused-appellant with

the commission of the offence involved in this case. Even the defence did not cross-examine the aforesaid witnesses, except PW8. The PW8 was

declared hostile by the prosecution as he did not support the prosecution version of the story and also subjected him to cross-examination and yet

failed to elicit anything implicating the accused-appellant. Similar is the evidence of PW9 who has also not implicated the accused-appellant at all.

Therefore, this court is left with the evidence of PW7, PW10 and PW11 only to find out as to whether the accused-appellant had committed the

offence alleged in the instant case. We would like to consider, the evidence of PW10 who performed the post-mortem examination on the dead body

of the deceased. On his examination on the dead body of the deceased, he found as follows:

Injuries :-

Incised looking lacerated wound over the top of the head obliquely placed bone depth 6 cm X 2 cm, Reddish in colour.

Abrasion 6 cm X 2 cm obliquely placed over the clevical reddish in colour. Fracture of the ribs over mid clavicular line and fracture over middle one

third scalp haematoma 6 cm X 4 cm and fracture 6 cm over the parietal region.

Brain congested in the bilateral subdural haemorrhage and extra dural haemorrhage over the top of the head.

The doctor also opined that the death of the deceased was due to coma as a result of injuries sustained by her caused by blunt force impact homicidal

in nature.

So, the cause of death of the deceased could be ascertained from the medical evidence, vide Ext.7.

7) Now, the question is whether the injuries causing to the death of the deceased were inflicted by the accused-appellant.

8) The only evidence led by the investigating officer, examined as PW7, is to the effect that in the statement of the accused-appellant, under Section

161 Cr.PC, he admitted the commission of the alleged offence, and this statement is exhibited as Ext. 3. Such statement, made under Section 161

Cr.PC, cannot be used for any other purpose except as provided in Section 162 Cr.PC.

9) The investigating officer seized the axe, which was allegedly used in the commission of the offence of murder of the deceased by the accused-

appellant, on being led by him. He also stated in his evidence that the accused-appellant surrendered before him after commission of the offence. But,

the evidence of PW11, who is the VDP Secretary of the village concerned, shows that he went to the place of occurrence, i.e. the house of the

deceased with police and saw the dead body of the deceased lying inside the house. He informed the police about the occurrence, over phone, and

police arrived there after about ½ an hour. The police interrogated the accused-appellant there itself, and then, took him to the police station. He has

also stated that police seized a rod, vide Ext.8, wherein Ext.8(1) is his signature. On perusal of the Ext.8, it is found that this is not a piece of rod which

was seized by the investigating officer, and rather, the same is the axe seized by the police. There is no specific evidence coming out from PW7 as

well as from PW11 that the axe was recovered on being led by the accused-appellant. On the other hand, if the evidence of the investigating officer is

relied upon to the effect that the accused-appellant had surrendered, then, how could he find the accused-appellant at the place of occurrence while

he visited there and arrested him there. So, such evidence, in fact, does not lead to a conclusion that the accused-appellant had committed the murder

of his wife as this court finds difficult to believe the evidence led by the PW7/investigating officer in the absence of any corroborative evidence. Apart

from that, the principal evidence produced by the prosecution in the form of Ext.3 has already been found to be not tenable in law in view of the

provision of Section 162 Cr.PC.

10) In view of the above discussions, on the evidence on record, and in absence of any material to hold the accused-appellant guilty for commission of

murder of his wife/deceased, this court is of the view that the decision, rendered by the learned trial court, convicting the accused-appellant and

sentencing him, as above, is not based on evidence on record necessitating interference by his court in exercise of its appellate jurisdiction.

11) The judgment of the learned trial court, impugned herein, is set aside.

12) Accordingly, the appeal is allowed.

13) The accused-appellant be released forthwith.

14) 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.

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