Basanta Barman vs State Of Assam

Heard Mr. K.P. Sarma, learned senior counsel for the appellant and Ms. S Jahan, learned Addl. PP, Assam.

This appeal is directed against the judgment and order dated 20.11.2009, passed by the learned Addl. Sessions Judge, FTC, Barpeta in Sessions

Case No.60/2008. By the said judgment, learned Sessions Judge convicted the appellant under Sections 457/307 IPC and sentenced him to RI for 2

(two) years and fine of Rs.1,000/- with default stipulation under Section 457 IPC and RI for 5 (five) years and fine of Rs.2,000/- with default

stipulation under Section 307 IPC.

The prosecution case in brief is that, on 28.08.2005 at about 1.30 am at night, while the victim PW-1 was sleeping in her house, the accused entered

into the house with ill motive and engage in scuffle with PW-1. As the accused petitioner failed to succeed in his attempt, he set fire to PW-1 by

pouring kerosene on her body and immediately left the place. An FIR was lodged by the husband of PW-1, on the basis of which, police registered a

case and after usual investigation submitted charge-sheet against the accused/appellant under Sections 457/307 IPC and eventually the petitioner stood

trial.

In the course of trial, charges under Sections 457/307 IPC were framed, to which, the appellants pleaded not guilty. 8 (eight) witnesses were

examined by the prosecution to establish the charges. On appreciation of evidence adduced by the prosecution, learned trial Court convicted the

accused/appellant under Sections 457/307 IPC and awarded sentence as indicated above.

Aggrieved by the impugned judgment of conviction and sentence, the appellant preferred the instant appeal.

I have perused the evidence and materials on record and considered the submissions made by the learned counsel.

Learned counsel for the appellant submits that initially FIR was lodged immediately on the next day of the occurrence, on the basis of which,

investigation was initiated. However, subsequently Exhibit-1 FIR, was lodged after 4 days of the occurrence and the earlier FIR was totally

suppressed. It is the contention of the learned counsel that the subsequent FIR, Exhibit-1 is hit by Section 162 Cr.P.C. It is also contended by the

learned counsel that the sole testimony of the victim upon which the entire prosecution case hinges, is not reliable and as such the conviction and

sentence of the appellant requires to be set-aside.

PW-2, the victim stated that on the night of the occurrence, the accused entered the house at night by opening the door and tried to commit rape on

her. She also stated that the accused was drunk at that time. As she declined to the proposal of the accused, the accused put off the lamp. She lit the

lamp and at that point of time, the accused set fire to her and left the place. She herself defused the fire by pouring water. She also stated that her

brother PW-3 came on the next morning and took her to the doctor. On the next day, her husband came home and she informed him about the

occurrence. During cross-examination, she stated that as soon as the accused entered the house, she woke up but she did not raise any alarm. She

stated that her children were also sleeping with her. It was also elicited from her cross-examination that the accused was scuffling with her for about

half an hour. She also admitted in her cross-examination that police interrogated her on the next day of the occurrence.

PW-3, the brother of the victim stated that one Kunja Barman and Babu Barman informed him that the accused tried to do bad act with his sister

but being unsuccessful, he set fire to her. Immediately he came and found that his sister sustained burn injuries. He further stated that he immediately

took PW-2 to the Doctor Sanatan Das at Barpeta Road and thereafter, she was treated at Coochbehar. During cross-examination, he admitted that on

the next day he lodged an FIR at Howly Police OP at about 8.00 am and police came to the place of occurrence on the same day.

PW-1 was the informant and according to him, he came to know about the occurrence from his wife PW-2. During cross-examination he stated

that the after he returned home on the first day, his wife did not tell him anything.

PW-4, the doctor, stated that while he was posted at Barpeta Civil Hospital as SDM&HO, examined the PW-1 on 28.08.2005 at 4.30 am and

found 50% burn injuries. During cross-examination, he stated that he had examined the victim at her home, which was at a distance of 1½ km from

his residence. The doctor, however, failed to remember whether there was any smell of kerosene on the body of the victim. The doctor also could not

remember whether the patient was conscious or unconscious at the time of examination.

PW-5 and PW-6 were declared hostile. It is no doubt true, that testimony of a hostile witness does not get washed off merely because of being

declared as hostile. If the testimony of witness is otherwise found consistent with other evidence, there is no bar in relying on such witness. However,

nothing worthy of placing reliance could be elicited from these two witnesses. PW-7 stated that he had no knowledge about the occurrence.

A dispassionate scrutiny of the oral testimony of the witness transpires that PW-3 immediately on the next day of the occurrence lodged an FIR at

the Howly Police outpost at about 8’ o clock and police also visited the place of occurrence on the same day. PW-2 the victim also admitted that

she was interrogated by police on the next morning. But surprisingly enough, the said FIR, which was lodged immediately on the next morning and

police was set into motion, was suppressed reason best known to the prosecution. The FIR on the basis of which ultimately investigation was carried

out was lodged on 01.09.2005 i.e., after 4 (four) days of the occurrence.

PW-4, the doctor stated in his evidence-in-chief that on 28.08.2005, while he was SDM&HO at Barpeta Civil Hospital, he examined the victim.

Again during cross-examination he stated that he examined the victim at her home. He failed to remember whether the victim was conscious or

unconscious at the time of occurrence. He also failed to remember whether any smell of kerosene was found on the body of the deceased. The

certificate issued by PW-4 did not contain those information. PW-1 stated that initially the victim was taken to Doctor Sanatan Das at Barpeta Road.

PW-3 also stated that on the next morning when he came to know about the occurrence he rushed to the place of occurrence and took the victim to

the Doctor at Barpeta Road. Admittedly PW-3, the victim was a resident of Barpeta and not Barpeta Road. The medical certificate Exhibit-3

transpires that it was written in the personal notepad of the doctor and it does not contain any reference of police case or GD entry. Though

admittedly the doctor, PW-4 was posted as SDM&HO, Barpeta Civil Hospital and according to him, he examined the victim in her residence, such

testimony of the PW-4 was belied by the PW-2 & PW-3, who stated that initially PW-2 was taken to Dr. Sanatan Das at Barpeta Road for

treatment. The above contradictions between PW-2 and PW-3 and the testimony of Doctor Sanatan Das (PW-4) and the vagueness of Ex-3 casts

serious doubt on the medical evidence as deposed by PW-4 as well as the credibility of the Ex-3. Though PW-3 stated that he was informed by Babul

Barman and one Kunja Barman about the occurrence, said Babul Barman pleaded ignorance about the occurrence and Kunja Barman was not even

examined.

The victim admitted in his cross-examination that the accused entered the house by opening the door and immediately she woke up, but she did not

raised any alarm when the accused entered into her house opening the door from outside at about 1.30 am at night. According to her, the accused was

scuffling with her for about ½ hour and in course of such scuffle, there was ‘halla’ but no one came at that point of time and the neighbouring

people came later. It is also stated by PW-2 that after entering into the house, the accused proposed her for sex to which she declined. Thereafter the

accused put off the lamp which she again lit and thereafter, the accused left by setting fire to her body. Admittedly, though her husband came on the

next morning, she did not tell anything to her husband on that day. The entire conduct of PW-2 as well as the testimony of PW-1, her husband, that

PW-2 did not tell him anything on the first day when he came home coupled with the suppression of the first FIR and lodging the Exhibit-1 FIR after

four days, goes to show that the PW-2 was either concealing the real fact or she failed to tell the truth and such conduct of the PW-2 raises

reasonable doubt as to the veracity of the prosecution story. Apparently, the FIR was lodged after four days of the occurrence. Though PW-1 tried to

put forward an explanation for delayed lodging of the FIR, such explanation appears to be hardly convincing on the facts and circumstances of the

case.

Thus, suppression of the first FIR lodged immediately on the next morning and lodging the FIR, Exhibit-1 after 4 (four) days, unreliability of the

medical evidence and improbability and absurdity in the conduct of PW-2 logically raises doubt on the veracity of the prosecution case as deposed by

PW-2. In view of the above facts and circumstances, prosecution can by no stretch of imagination be held to have discharged its burden to prove the

guilt of the accused beyond reasonable doubt. The prosecution having failed to bring home the charges against the petitioner beyond all reasonable

doubt, the accused person was atleast entitled to benefit of doubt in the instant case. Accordingly, the appeal is allowed and the conviction and

sentence of the petitioner is set-aside.

Send down the LCR.