Rohit Deep vs State Of Assam And Ors

Mir Alfaz Ali, J

We have heard learned Amicus Curiae, Ms. Reetuja Dutta for the appellant and learned Addl. Public Prosecutor, Ms. B. Bhuyan for the State/respondent No. 1, who have also taken us through the evidence and materials brought on record.

This jail appeal is directed against the judgment and order dated 05-02-2015, passed by learned Sessions Judge, Tinsukia, in Sessions Case No.180(T)/2014. By the said judgment, learned Sessions Judge convicted the appellant u/s 302 IPC and sentenced him to rigorous imprisonment for life and fine of Rs. 1,000/- with default stipulation.

The victim herein was the younger brother of the informant. As per prosecution case, the accused killed the victim by strangulation and thereafter, kept his body hanging in order to project the death as suicide. The FIR (Ext. 1), was lodged by the elder brother of the victim, on the basis of which police registered Tinsukia Police Station Case No.172/2014 u/S. 302 IPC and commenced investigation. In course of investigation, inquest report of the body was prepared by the Executive Magistrate and post mortem examination was conducted by Dr. Rajdeep Guha.

Dr. Rajdeep Guha (PW 4), who conducted post mortem examination on the body of the victim found the following :-

"External Appearance:- Body of an adolescent male, dark complexion, medium built, short black hair, wearing a blue half pant, sporting, red jacket. Rigor mortis present. Tongue protruded and stuck between the clenched teeth. Eyes congested and echymosis present.

Multiple abrasion marks over face, upper chest and arms. Multiple abrasions over right hand fingers. An oblique, non continuous ligature mark of length 26 cm X 1 cm circling the neck above the cricoid cartilage

seen. The skin beneath the ligature was parchment and glistening."

In the opinion of the doctor, cause of death was due to asphyxia as a result of ante mortem hanging. Time of death was stated to be 12 to 24 hours before the post mortem examination.

On conclusion of the investigation charge-sheet was laid against the present appellant u/S. 302 IPC and eventually he stood trial.

In course of trial, charge was framed under Section 302 IPC, to which the accused/appellant pleaded not guilty. Seven witnesses were examined by the prosecution to establish the charge. The accused did not adduce any evidence in his defence and the plea of the accused was that of innocence. On appreciation of evidence, learned trial court convicted the appellant u/S. 302 IPC and awarded sentence as indicated above.

On our assessment of the evidence and perusal of the impugned judgment, we find that the learned trial Court recorded conviction of the appellant primarily basing on the medical evidence and the oral testimony of PW 1 and PW 3.

PW 1, the elder brother of the victim, deposed, that at about 6.30 pm, in the evening, while he was in his house along with his mother and other members of the family, the appellant assaulted the victim with dao and inflicted injury on his back. Thereafter, he tied the victim and hanged from the ceiling. Initially being apprehensive of being attacked by the appellant, he did not dare to intervene. However, later on, he overpowered the appellant and informed the police. If the statement of the PW 1 before the Court and the FIR is put in juxtaposition, it would show, that PW 1 has given two different versions. In the FIR lodged by PW 1, it was stated that the accused killed the victim by strangulating him with a rope, whereas in his deposition before the Court, said PW 1 stated that the accused assaulted the victim with "dao" on his back and thereafter, hanged him.

PW 3 is the son of the accused. The age of the PW 3 was not mentioned in the deposition recorded by the learned trial Court. However, the averments made in the FIR, PW 1 stated the son of the accused to be a minor. Moreover, as no oath was administered to him, it can be suggested that PW 3 did not attain the age of administering oath. Though PW 3 was a child witness, learned trial Court neither undertook the voir dire test, nor appended any certificate as to the competency of the PW 3, to understand the question put to him and/or giving rational answer thereto. Be that as it may, the PW 3 deposed in his examination-in-chief supporting the prosecution case, as deposed by PW 1 and stated that the accused assaulted the victim and then hanged him. Whereas, in his cross-examination PW 3 admitted to have not seen the occurrence. Thus, the oral testimony of PW 3 was demonstratively self contradictory and mutually destructive.

It is no doubt true, that the testimony of a child witness cannot be doubted, if it is found to be cogent, clear and reliable. At the same time, it is also the settled principle of appreciation of the evidence of a child witness, that testimony of the child witness is required to be scrutinized with great caution, inasmuch as, there are always some possibility of tutoring such witness by others. In the present case what we find is that the learned trial Court neither undertook any voir dire test, nor appended any certificate as to the competency of the child witness. Admittedly this child witness was in the custody of PW 1, as his father was in jail. That apart, his testimony is apparently self contradictory and mutually destructive. Therefore, in our considered view, no credibility can be attached to this witness.

PW 2 was declared hostile. However, he stated in his evidence that he did not see the occurrence. It is the settled position, that testimony of a hostile witness does not get washed off the record, merely because of declaring such witness to be hostile by the prosecution. If the oral testimony of such witness is found to be in consonance with the other prosecution evidence, there is no impediment in relying on such evidence. However, we do not find anything in the oral testimony of PW 2, which could be of any help to the prosecution. PW 5 and PW 6 both are hearsay witnesses, as they came to know about the occurrence later on and both of them stated to have heard, that the victim committed suicide. Therefore, the oral testimony of these three witnesses, i.e., PW 2, PW 5 and PW 6 are of no help to the prosecution. The medical evidence deposed by the doctor PW 4, as indicated above, and the post mortem report (Ext. 4) show, that death was due to asphyxia, as a result of ante mortem hanging. Though the doctor (PW 4), stated in his evidence that the nature of the ligature mark was suggestive of homicidal death, but in the post mortem report (Ext. 4), the doctor did not opine the death to be homicidal in nature. The post mortem report and the evidence of the doctor demonstrated that the ligature mark was non-continuous and oblique, which clearly suggested, that it was a case of suicidal hanging and not strangulation, inasmuch as, the PM report did not disclose anything to the contrary. The doctor during his evidence also did not explain the basis of his observation that the ligature mark was suggestive of homicidal death. Be that as it may, the medical evidence regarding the presence of non-continuous and oblique ligature mark was suggestive of suicidal hanging or at least, it was doubtful whether the death was suicidal or homicidal. It is the cardinal principle of administration of criminal justice that prosecution has to prove each and every ingredient of the offence beyond reasonable doubt, more particularly when the accused is tried for capital offence, evidence is required to be weighed by golden scale, inasmuch as, no one can be convicted for a serious criminal offence like murder on mere surmise and conjecture. Prosecution needs to prove the guilt as must and not as may.

What therefore, the medical evidence coupled with the oral evidence crystallizes is that the prosecution evidence fell short of proving the factum of homicidal death of the victim. As already indicated above, evidence of PW 3 is totally unworthy of trust and therefore, only evidence remains is the oral testimony of PW 1, the informant, who is also found to have stood contradicted with his previous statement in the FIR and therefore, not worthy of inspiring confidence. Thus, totality of the evidence including the medical evidence clearly demonstrated, that prosecution evidence was grossly inadequate to bring home the charge u/S. 302 IPC against the appellant, and as such, we are unable to concur with the finding of the learned trial Court, convicting the accused u/S. 302 IPC. Accordingly we allow the appeal and set aside the conviction recorded and the sentence imposed on the appellant by the learned Sessions Judge, Tinsukia in Sessions Case No. 180(T)/2014.

The appellant be released forthwith, if not required in any other case.

Appreciating the assistance rendered by Ms. Reetuja Dutta, learned Amicus Curiae, we hereby provide that she will be entitled to professional fees of Rs. 7,500/- (Rupees seven thousand five hundred) upon production of a copy of this judgment. The Gauhati High Court Legal Services Committee, Guwahati shall pay the said fee to Ms. Reetuja Dutta.

Send down the LCR along with a copy of the judgment to the learned trial Court. A copy of the judgment be also forwarded to the Superintendent of District Jail, Tinsukia.