IN THE GAUHATI HIGH COURT ( THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH ) Criminal Appeal No. 188 (J) of 2007 Shri Ajit @ Anil Mahapatra. Versus The State of Assam. - Appellant. - Respondent. BEFORE THE HON BLE MR. JUSTICE IA ANSARI THE HON BLE MR. JUSTICE PK MUSAHARY Advocates present: For the Appellant : Ms. B Gogoi, Amicus Curiae. For the Respondent : Mr. D Das, Additional Public Prosecutor, Assam. Date of Hearing : 19 th of October, 2012. Date of Judgment : 21 st of November, 2012. { IA Ansari, J } JUDGMENT AND ORDER This appeal is directed against the judgment and order, dated 24-08-2007, passed, in Sessions Case No. 61of 2006, by the learned Additional Sessions Judge, (FTC), Biswanath Chariali, convicting the accused-appellant under Section 302 IPC and sentencing him to suffer imprisonment for life and pay fine of Rs.2,000/- and, in default of payment of fine, undergo rigorous imprisonment for three months. 2. The case of the prosecution, as emerged at the trial, may, in brief, be described as under: On 16-11-1998, at about 6.00 am, Kabir Sheikh, a worker of brick kiln industry run by Amal Ch. Bora, was killed by the accused-appellant, namely, Ajit Tanti @ Anil Mahapatra, by assaulting him on his head by an axe. On being
Page 2 informed about the occurrence, Amal Ch. Bora lodged a written information, on 16-11-1998, at about 9 a.m., in this regard, at Gahpur Police Station. Treating the said information as First Information Report (in short, FIR ), Gahpur Police Station Case No. 213 of 1998, under Section 302 IPC, was registered against the accused-appellant. During the course of investigation, police visited the place of occurrence, held inquest over the said dead body, got the post mortem examination performed and seized the axe from the possession of the accused and, on completion of investigation, police laid charge-sheet, against the accused-appellant, under Section 302 IPC. 3. At the trial, when a charge, under Sections 302 IPC, was framed, the accused-appellant pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether six witnesses. The accused was, then, examined under Section 313 Cr.P.C. and, in his examination aforementioned, the accused denied that he had committed the offence, alleged to have been committed by him, the case of the defence being that of denial. No evidence was adduced by the defence. 5. Having, however, found the accused guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the convicted person has preferred this appeal. 6. We have heard Ms. B Gogoi, learned Amicus Curiae, and Mr. D Das, learned Additional Public Prosecutor, Assam. Criminal Appeal No. 188 (J) of 2007 Page 2 of 6
Page 3 7. Before entering into the discussion of the oral evidence, surrounding the circumstances, which the prosecution has relied upon, to fasten the accused with the liability of having committed the offence of murder, we refer to the medical evidence on record. We notice, in this regard, that the doctor (PW4), who, admittedly, conducted the post mortem examination on the dead body of Kabir Sheikh, found as follows: External Appearance: Average built. Eyes and mouth were closed. Rigor Mortis present. Injury : One big lacerated wound at back side of head with coming out of brain matters. The wound was three oblique wounds at parito occipital region is about 3 in length and ½ in breadth and up to brain deep. The wound caused the fracture occipital bone and both parietal bone. Cranium and Spinal Canal : Scalp : Lacerated. Skull : Occipital Other organs are found normal and accordingly, I fill up each column of the form as NAD (Nothing abnormality detected). 8. In the opinion of the doctor (PW4), all the injuries were ante mortem in nature and that the death was caused due to shock as a result of the injuries sustained by the said deceased. 9. Thus, the medical evidence on record shows that the said deceased had sustained a lacerated wound on the back of his head with such force that brain matters had come out and there were also wounds at the occipital region indicating thereby that the said deceased had been given blow by some blunt object, on his head, by great force leading to his death. 10. Bearing in mind that the death of the said deceased was homicidal in nature, let us, now, determine if the evidence on record proves beyond all Criminal Appeal No. 188 (J) of 2007 Page 3 of 6
Page 4 reasonable doubt that it was the accused-appellant, who had injured and killed Kabir Sheikh. 11. While considering the above aspect of the case, it is important to note that PW2, whose brick kiln was the place, where the said deceased was assaulted and killed, has deposed that on the day of the occurrence, at about 7.00 a.m., one of his workers, namely, Rohit (PW5) came to his house and informed him that Kabir Sheikh @ Kabir had been killed by Anil @ Ajit, another worker of the said brick kiln, and, on receiving the said information, PW2, immediately went to his brick kiln and found Kabir lying dead with injuries on his head and when he made query about the accused, he did not found find the accused there, whereupon he went to the police station to inform the police about the occurrence and, on arriving there, he found the accused detained at the police lockup. 12. The evidence of PW2 is clearly not the evidence of any eye witness and he has no personal knowledge if it was the accused-appellant, who had killed Kabir. 13. Since it was PW5, who had informed PW2 that the accused-appellant had killed Kabir, when we turn to the evidence of PW5, who is also one of the coworkers of the said brick kiln, we notice that according to his evidence, when he returned back to the factory after answering the nature s call, he saw Kabir s dead body lying there and he heard that it was accused, Ajit Mahapatra, who had killed Kabir and he (PW5) accordingly informed PW2. 14. Pausing, at this stage, for a moment, it may be pointed out that the evidence of PW2 clearly shows that he, too, was not an eye witness to the Criminal Appeal No. 188 (J) of 2007 Page 4 of 6
Page 5 occurrence and, hence, his evidence does not stand on a better footing than PW2. Consequently, neither the evidence of PW2 nor the evidence of PW5 can be said to have proved that the accused-appellant was the one, who had killed Kabir Sheikh. 15. We may, now, point out that PW2 was declared hostile by the prosecution and his previous statement, alleged to have been made by him to the police, was proved and as per his previous statement, he had witnessed the accused holding an axe in his hand, when Kabir s dead body was lying. The previous statement, so attributed to PW5, was definitely not substantive evidence and the previous statement, so made by PW5, could not have become, even if true, basis of the conviction of the accused-appellant. 16. So far as PW1 and PW3 are concerned, they are witnesses to the seizure of an axe, which was allegedly made by the police from the possession of the accused. According to the evidence of PW1, on the day of the occurrence, when he came to Gohpur Police Station, police made a seizure list in respect of the seizure of an axe and he gave his signature thereto. To the same effect is the evidence of PW6, who, too, merely gave his signatures on the seizure list. Similarly, PW3 has deposed that on the day of the occurrence, he happened to go to the police station to get his money and when he arrived there, he saw the accused holding an axe in his hand and sitting at the verandah of the police station and that on interrogation, the accused, according to the evidence of PW3, told the police to have killed a man by the said axe. This statement, made to the police, in the presence of PW3 was, nothing, but confession and this confession was, in terms of Section 26 of the Evidence Act, inadmissible in evidence. Hence, the evidence of neither PW3 nor the evidence of PW1 and/or PW2 legally advance the case of the prosecution. Criminal Appeal No. 188 (J) of 2007 Page 5 of 6
Page 6 17. As far as the Investigating Officer is concerned, he has admitted that he did not get the said axe medically examined. There is, thus, no connecting link between the assault on Kabir Sheikh and the said axe. In the absence of any evidence showing that the axe, in question, was the weapon of offence, it becomes clear that there was no substantive and adequate evidence enabling any Court of law to hold the accused-appellant guilty of the offence, which he stood charged with. 18. What emerges from the above discussion is that there was no legal evidence on record to hold the accused-appellant guilty of the offence, which he has been convicted of. His conviction cannot, therefore, be sustained. 19. In the result and for the reasons discussed above, this appeal succeeds. The conviction of the accused-appellant and the sentence, passed against him by the judgment and order under appeal, are hereby set aside. The accusedappellant is held not guilty of the offence, which he stood charged with and he is acquitted of the same. 20. Let the accused-appellant be set at liberty, forthwith, unless he is required to be detained in connection with any other case. 21. Let the Amicus Curiae be paid a sum of Rs. 5,000/- for his valuable assistance rendered to this Court. 22. Send back the LCR with a copy of this judgment and order. JUDGE JUDGE Paul Criminal Appeal No. 188 (J) of 2007 Page 6 of 6