Prasad Baruah vs State of Assam

V.D. Gyani, J.—This appeal arises out of judgment dated 4.7.94 delivered by the learned Sessions Judge, Tinsukia in Sessions case No. 52(T)/90 thereby holding the Appellants guilty of offence punishable u/s 302 IPC and sentencing him to undergo imprisonment for lite with fine of Rs. 2000/-, and sentenced to undergo R.I. for 3 years with fine of Rs. 500/- or in default in payment of fine to suffer six months R.I.

The prosecution story in brief was that the accused who was aged about 22 years at the time of incident and was jobless used to live with his uncle and aunt, Jainath Baruah and Dipti Baruah. On the fateful night of 12.1.90 while P.W. 2 Smti Renu Sarmah was busy in preparing cakes for Bihu Festival she heard cutting sound coming from the house of the deceased. She came out to see as to what had happened. Her husband P.W. 1 Promode Sarmah was in a adjoining room. They were tenants of the deceased couple. As P.W. 2 was coming out from her room, the accused have said to have attacked her with a Dao aiming at her head, she had a providential escape as the dao blow instead of straightway falling on her head strucked against a beam. Yet Smti Sarmah sustained injury on her hand in her bid to protect herself from dao blow. She was in fact referred by the police for medical examination, but no such record has been placed before the Court. Be that as it may, when the wife was under attack her husband P.W. 1 rushed from behind and caught hold of the accused. Both of them cried for help but there was no response from the neighbours. So they went out for help and a few neighbours came to the scene of occurrence. The matter was reported to the Police by the P.W. 1 and a case u/s 302 IPC was registered and taken under investigation. The accused in the meantime surrendered before the police. There is some dispute about his surrender to the police with the incriminating weapon of attack or without it. This aspect will be dealt with at the appropriate stage. The accused was put to trial Prosecution examined as many as 8 witnesses to prove the charge against the accused. His defence at the trial was that he had gone to Bazar on his return, he found his aunt and butchered, he went to the tenants P.W. 1 and 2, who advised him to run away. He accordingly rushed to the police station, where he was booked as an accused. The trial court rejected his defence plea and found him guilty of the offence charged and sentenced him as already noted above. Hence, this appeal from jail.

Since the Appellant was not assisted by a counsel Mrs. R. Borbora was appointed as amicus curiae, but regretable enough although appointed as the amicus curiae, the counsel has not turned up much less to assist the Court. We therefore, requested Mr. B. Warrphira who was present in the Court room, who acceded to our request with slight hesitation, seeking some time to go through the evidence. We have been taken through the evidence on record by the learned Amicus curiae and with his help, as also that of the learned P.P. appearing for the State, this appeal is being disposed of.

Before proceeding any further it would be pertinent to note that it is a case of double murder with Anr. added attempt at life of prosecution witness No. 2 Mrs. Renu Sarmah.

Out of the 8 witnesses examined by the prosecution P.W. 2 is an eye-witness to the occurrence so far as it relates to attack by the accused on her head. As for the assault on the deceased, is very rightly pointed out by the learned amicus curiae she does not claim to be an eye-witness to the assault on the deceased Jainath and Dipti. The prosecution case for that part of its story mainly depends on the evidence of P.W. 1 Promode Sarmah who saw the accused coming out of the room with dao in his hand and that of his wife P.W. 2 who was attacked by the accused. Apart from these two witnesses there was two other witnesses namely Jiten Saikia P.W. 5 who was informed by P.W. 1 that the accused had come to assault him. On being so informed, he rushed to the place of occurrence and found some other persons from the locality that the couple Joinath and Dipti had been killed and lying dead.

Learned amicus curiae argued that the trial court by adopting a distorted line of reasoning as conjecture has arrived at the finding to the effect that it was none else than the accused who had killed Joinath and Dipti. This approach on the part of the trial court has come under severe attack. According to the learned amicus curiae there is no legally reliable evidence available on record to sustain the Appellant''s conviction which is based on a faulty reasoning adopting a process of elimination. Learned amicus curiae questioned the Appellant''s conviction that merely because no one else had had motive and opportunity or excess to the place of occurrence the accused has been convicted, pausing a question as to what evidence had the prosecution had adduced in proof of motive? he submitted that it is based on very slander evidence. Referring to the statement of P.W. 2 who testified about some quarrel between the deceased and the accused who was job-less, it was contended that even if this quarrel is believed or accepted, it is not a motive strong enough to impel some one to commit murder of his uncle and aunt who had provided an unemployed youth with shelter. As for opportunity and accessibility fo the place of occurrence it was strongly urged that the prosecution has failed to establish the inaccessibility of any one other than the accused. Merely because he was jobless and staying with his uncle it would be too hazardous to reach at the conclusion that it was he and he alone who committed murder of his uncle and aunt.

Learned Public Prosecutor on the other hand, maintained that the accused has taken a false plea of being absent from the place of occurrence. According to him he was in the Bazar and on his return he found his uncle and aunt hacked to death, so he went up to the neighbours. It is virtually taking a plea of elibi and its burden of proof essentially lies on the accused who has not chosen to substantiate his plea of being absent from the place at the time of occurrence. As against this defence stand, the prosecution has adduced evidence of P.W. 1 and 2 who have categorically stated that it was the accused, who attacked Smti Renu Sarmah with a dao. It was he who was seen coming out of the room with a dao in his hand. This statement made on oath is virtually gone unchallenged and unrebutted. As such it cannot be lightly brushed aside. Statement by an accused u/s 313 Code of Criminal Procedure is not an evidence strictly so called. It is merely an explanation of the incriminating circumstances appeared against the accused in the evidence adduced by the prosecution and the explanation offered when tested in the light of the evidence adduced by the prosecution falls to the ground. We would like to add that we are not drawing any adverse inference against the accused to take plea that he had. We are considering the plea on its face value and when so considered, the plea is not prima facie made out much less substantiated. There is nothing in the cross-examination of these two witnesses so as to render their testimony unreliable. It has not even been suggested to them that they had some axe to grind against the deceased and they had come out falsely implicating the accused by asking him to run away from the scene.

Learned amicus curiae also criticised the trial court''s appreciation of evidence by compartmentalising the statements made in cross-examination and in examination in chief. He has rightly submitted that such artificial deviation of evidence is neither permissible in law nor desirable. Statements must be viewed and considered as a whole and not in piece meal basis as has been done by the trial Judge while considering the evidence of the I.O. (P.W. 7) on the point of discovery of the incriminating weapon ''Dao''. Adverting to the evidence of P.W. 7 the witness categorically stated that

Finding Promod Sarma at the police station, I recorded his statement. Before receiving the Ext. 1 the accused surrendered at the police station with a dao (in his hand) .... XXX

As shown by the accused, I recovered the dao from under the banana groove.

The learned trial Judge is palpably wrong in preferring the statement made in cross-examination. Apart from P.W. 7 there is no evidence about the recovery of dao which should have been outright rejected in face of the two inconsistent statement made by the I.O. No implicit reliance can be placed on the testimony of such an witness. If the accused had surrendered with the ''dao'' the question of its recovery does not arise. Its production by the accused itself amount to a statement hit by Section 24 of the Evidence Act, therefore, inadmissible in evidence. The trial Judge has rightly argued, was wrong in placing reliance on the evidence of recovery of Dao at the instance of the accessed. Section 27 of the Evidence Act which is in nature of exception, the proceeding Sections 24 to 26 has been totally misinterpreted by the trial Court. The evidence of recovery of weapon ought to have been ignored and excluded.

Having held the evidence of recovery as inadmissible, the question that still loom large is what is the mistake on the prosecution case as a whole? Whether this exclusion rope the prosecution story of its ring of truth? Its effect on the evidence of P.Ws. 1 and 2 who saw the accused attacking P.W. 2 and caught him on the spot. Evidence of P.Ws. 5 and 6 is relevant and material to the extent it is permissible as resgesti evidence u/s 6. Illustration (a) which reads as follows:

(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.

There is yet Anr. basis of corroborative evidence in the shape of postmortem examination report. The number and nature of injuries found on the dead bodies of Joinath and Dipti speaks volumes for this. They are compatible with the occular evidence of P.W. 1 and 2.

Going to the change u/s 307 IPC true it is, that there is no medical evidence available as pointed out by the learned amicus curiae in support of the injury sustained by P.W. 2. Really speaking to sustain charge u/s 307 IPC no medical report as such is necessary. The fact that the accused made an attempt, but the providential escape of P.W. 2 the offence of murder would not have been completed. All the essential ingredients constituting offence u/s 307 IPC are present in the evidence of P.W. 2. In this view of the matter, mere non-production of the injury report would not have any material effect on the conviction u/s 307 IPC as recorded by the trial Court.

In view of the foregoing discussion, this appeal fails, it is accordingly dismissed. The conviction and sentence of imprisonment as imposed by the trial court is maintained. Considering the fact that the accused was unemployed youth the sentence of fine is set aside.

Before parting with this file, we would like to record our deep appreciation of the able assistance rendered by the amicus curiae. He is entitled to his remuneration as permissible under the rules.