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Judgment
Heard Mr. R Dev, learned Amicus Curiae appearing for the appellant. Also heard Ms. B Bhuyan, learned Additional Public Prosecutor, Assam.
An ejahar dated 20.05.2013 was lodged by one Durga Purti alleging that on the night of 19.05.2013 at about 12/1 O’clock, the accused Jiten
Chatttar had killed a co-villager Nigro Lawguri by assaulting him with a bamboo lathi. In the ejahar, it was stated that the accused had also confronted
the mother of the deceased at Nisemo Basti and had assaulted her with a Khukri and caused grievous injury.
The informant who was examined as PW-1 had stated that he is the village headman and the mother of the deceased went to his house and
informed that the accused Jiten Chattar, also known as Taklu had picked up a quarrel with the deceased Nigro Lawguri and had requested the
headman to cause a settlement between them. It was further stated that the mother Phuleswari Lawguri later on again went to his house and
informed that Taklu had killed Nigro. PW-1 was also a witness to the seizure of a solid bamboo pole from the courtyard of the deceased.
PW-2, Phuleswari Lawguri who is the mother of the deceased in her deposition had stated that the accused went to her house with a dao in his
hand and picked up a quarrel with her son. Upon separating the two, she went to the house of the village headman requesting him to cause a
settlement between them. Thereafter, she returned home and found the dead body of her son. The witness also states that the accused had confessed
before the people that he had killed her son.
PW-4, Anil Lawguri is the 13 year old son of the PW-2 and the brother of the deceased. The said witness deposed that on the date of the incident,
the accused had picked up a quarrel with the deceased near the school and at that time he and his mother were going to a shop. It is stated that the
quarrel between the accused and the deceased had taken place near a shop and that the deceased went there by riding a bicycle. It is also stated that
the quarrel took place between them over the bicycle. The witness states that he and his mother separated the accused and the deceased and took the
deceased to their home. Thereafter the witness along with his mother went to the house of the village headman to inform him about the matter.
Upon returning back they saw a cut injury near the eye of the deceased. The said information is also reiterated in the cross examination that there
was an altercation between the accused and the deceased and upon separating them both the witnesses and the mother went to the house of the
village headman.
PW-5, Ramesh Purti had stated in his deposition that on the day of the incident he was sleeping at home in the night, when the accused went to his
house and woke him up to inform that he had killed the deceased, Nigro Lawguri.
Based upon the evidence of PW-2 that she had seen the accused person entering their house with a dao in his hand and further the evidence of
PW-5 that the accused had woke him up in the middle of the night and had confessed before him that he had killed the deceased, the prosecution
leads their case to establish that the accused had committed the offence of killing the deceased. Based on the evidence of the PW-2 and PW-5 as
well as PW-4, the learned Trial Court had convicted the accused appellant under Section 302 IPC and sentenced him to undergo rigorous
imprisonment for life and to pay a fine of Rs.1000/- and in default a further simple imprisonment for 1(one) month.
As the case of the prosecution to establish the guilt of the accused appellant is based upon the evidence of PW-2 and PW-4 and also the oral
confession made before the PW-5, the evidence led by the aforesaid three witnesses is examined.
PW-2, Phuleswari Lawguri had stated in her deposition that on the date of the incident, the accused went to their house with a dao in his hand and
picked up a quarrel with his son. Upon the accused and the deceased being separated by her along with one Moina, she went to the house of the
village headman and requested him to cause a settlement between the two. Upon returning from the house of the village headman, she found the dead
body of her son in a bed inside the room.
PW-4, on the other hand had stated that on the day of the incident the accused and the deceased had picked up a quarrel and at that time, the
witness and his mother were going to a shop. He further stated that the quarrel between the accused and the deceased took place near a shop. The
witness and his mother separated the accused and the deceased and took the deceased to their home. Thereupon, both of them went to the house of
the village headman. Upon returning home, they saw a cut injury in the eye of the deceased.
On an examination of the deposition of PW-2, it is noticed that initial quarrel took place in the house of the deceased when the accused went there
with a dao in his hand. But, on the other hand, as per PW-4, the initial quarrel took place near a shop and upon being separated by the witness and his
mother, the accused was brought back to his home.
On a comparative reading of the depositions of PW-2 and PW-4, it is noticed that there is a contradiction as to where the first quarrel had taken
place and also as regards the evidence led by PW-2 that in the first quarrel the accused had entered into the house of the deceased with a dao in his
hand. The correctness of the statement of PW-2 is verified from the statement made by her under Section 161 CrPC wherein she had stated that on
the given day at about 4.00 pm, when she had gone to a shop at Khehar Basti, she saw the accused and the deceased quarreling in the road near to a
school field and the accused Jiten Chattar had assaulted the deceased, whereupon the said witness separated the two. Thereafter the accused went to
his house and brought a dao and threatened the witness but when she scolded him, the accused went away from the place. Thereupon she went to the
house of the headman and while returning home the accused told her that he had hit the deceased. When she went back home she found dead body of
the deceased in her house.
There is an apparent contradiction of the statement of PW-2 in her deposition and that of what he had stated before the police under Section 161
CrPC, as regards her statement that the accused had entered into her house with a dao and have picked up a quarrel with the deceased.
Reading the deposition of PW-4 who was all along with the PW-2 as well as the reading the Section 161 CrPC statement of the PW-2, the
evidence led by her to the effect that the accused had entered her house with a dao in his hand and picked up a quarrel with the deceased is not
believable.
The evidence led by PW-5 in his deposition provides that the accused woke him up in the middle of the night and had confessed that he had killed
the deceased. The said deposition of PW-5 when compared with his statement under Section 161 CrPC, it is noticed that he had met the accused in
the road when he told him that he had assaulted the deceased. What is noticeable is that there were two separate incidents on the day of the incident,
where the first one took place in the afternoon near a shop in the market place and the second incident took place in the house of the accused at night.
PW-4 under Section 161 CrPC states that the accused had told him about the assault on the deceased in the road, whereas in his deposition he states
that the accused woke him up in the middle of the night and informed him that he had killed the deceased.
Considering the fact that there were two separate incidents, one in the afternoon time in the road and the other at night in the house of the
deceased, the confession of the accused before the PW-5 as stated in the statement under Section 161 CrPC can only relate to the first incident that
happened in the afternoon. The narration of the fact of PW-5 in his deposition that the accused woke him up in the middle of the night and confessed
before him that he had killed the deceased is an improvement over what was stated under Section 161 Cr.P.C.
In view of such contradictory situation, the deposition of PW-5 that the accused had confessed before him that he had killed the deceased is
unbelievable and it would be unsafe to rely upon the same to conclude that it was the accused alone who had committed the offence. In view of the
aforesaid contradictions, in the evidence of PW-2 and PW-4 and also in the evidence of PW-5, as regards the confession by the accused the chain of
the events as emanates from the circumstantial evidence is not complete to establish beyond all reasonable doubt that it was the accused alone who
had committed the offence of killing the deceased.
In such view of the matter and more so in view of the aspect that the entire prosecution case as well as the conviction meted out by the learned
Trial Court is based upon the evidence of PW-2, PW-4 and PW-5 it cannot be concluded that it has been proved beyond all reasonable doubt that the
accused had committed the offence of killing the deceased. Accordingly, the conviction against the accused appellant, as well as the sentence to
undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/- and in default thereof in fine to undergo simple imprisonment for another one
month are accordingly set aside. Considering the aspect that the accused is already under custody for 1862 days, he is set at liberty forthwith.
In terms of the above, this criminal appeal stands allowed.
Before parting with the record, we appreciate the valuable services rendered by Mr. R Dev, learned Amicus Curiae. Accordingly, we direct the
Assam State Level Services Authority to pay the entitled fee of Amicus Curiae to Mr. R Dev on production of a certified copy of this judgment.