Sudhir Tanti vs State Of Assam And Anr

Mir Alfaz Ali, J.

Heard Mr. Rupam Sarma, learned amicus curiae for the appellant and Ms. Shamima Jahan, learned Addl. Public Prosecutor, Assam for the State, who have also taken us through the evidence and materials brought on record.

This jail appeal is directed against the judgment and order dated 16.09.2015 rendered by the learned Addl. Sessions Judge, Dibrugarh, in Sessions Case No. 197/2012 corresponding to GR No. 1037/1996. By the said judgment, learned Sessions Judge convicted the appellant under Section 302 IPC and sentenced him to imprisonment for life and fine of Rs. 1000/- with default stipulation.

As per the prosecution case, the body of the victim was found in a drain put in a gunny bag. One Monu Halowai (absconder accused) initially informed the police that the body of the victim was lying in the drain, whereupon, the O/C of the Moran Police Station registered UD Case No. 18/1996. In course of the enquiry of the UD case, the body was recovered and postmortem examination was conducted. Upon such enquiry, the police officer came to the conclusion that it was a case of homicidal death, and as such, the A.S.I. of police, Mohini Hazarika lodged the formal FIR (Ext.4). On the basis of the said FIR, Moran P.S. Case No. 67/1996 was registered and on conclusion of the investigation, charge sheet was laid against three accused persons, namely, Monu Halowai, Sudhir Tanti and Lal Galowar. The accused Monu Halowai was arrested during investigation, but, rests of the accused persons, Sudhir and Lal could not be arrested as they were absconding. However, later on, after released on bail, the accused Manu Halowai also absconded and eventually, the present appellant Sudhir stood trial.

In course of trial, charges under Section 302 R/W Section 201 IPC were framed against the appellant, to which, he pleaded not guilty. Prosecution examined 8 witnesses to establish the charges. One witness was examined by court as Court Witness No. 1. The accused/appellant did not adduce any evidence in his defence and took the plea of innocence during his examination under Section 313 CrPC. On appreciation of the evidence, learned Addl. Sessions Judge, Dibrugarh, convicted the appellant and awarded sentence as indicated above.

On our assessment of the evidence on record and perusal of the impugned judgment, we find, that the learned Trial Court recorded the conviction of the present appellant and imposed the sentence on him on the basis of the solitary testimony of PW-4, who claimed to be an eye witness of the occurrence and the medical evidence of the autopsy doctor (PW-6).

Postmortem examination of the body was conducted by Dr. R. Chaliha. However, Dr. Chaliha was not examined in this case. One Dr. Rupak Kumar Gogoi, who was acquainted with the handwriting of Dr. Chaliha was examined to prove the postmortem report (Ext.2). The autopsy doctor found the following injuries on the body of the victim.

i) A stab wound on the right upper abdomen 2 X 1 cm situated 1 cm about the umbilicus and 2 cm to right of the midline.

ii) A stab wound on the left middle abdomen 2 X 1 cm situated 8 cm above the umbilicus and 2 cm to the left of the midline.

iii) A stab wound on the right lower chest wall 2 X 1 cm situated 18 cm above the umbilicus and 10 cm to right of the midline.

In the opinion of the autopsy doctor, the death was caused due to hemorrhage and shock as a result of the injuries sustained by the victim. The injuries were antemortem caused by sharp pointed weapon and was homicidal in nature. This evidence of PW-6 was not controverted in cross examination. Therefore, the homicidal death of the victim has not been in dispute. Only question remains, is who caused the death of the victim.

PW-4, the lone witness of this case deposed, that the occurrence took place at about 9.30 at night. At that time, he was viewing TV in a neighbouring house. Hearing hue and cry in the house of elder brother of his father, he came there and while entered into the house, he noticed that Dukhalal and Narayan were holding the victim and Monu Halwai (absconder accused), who was younger brother of the victim, stabbed in the stomach of the victim with a "Mit Dao". He also stated that the accused Sudhir was hitting the victim from his back side. Noticing the incident, he left the place and on the next morning, he informed the Manager about the occurrence. The statement of this witness recorded under Section 164 CrPC was also proved as Ext.1. In his previous statement recorded under Section 164 CrPC, the PW-4 stated, that hearing hue and cry in the house of the victim, he went there and while peeping through the window, he noticed that two boys, namely, Lal and Sudhir were holding the victim by his hand and Monu stabbed on the back side of Lakhicharan(the victim). Receiving the injury, the victim fell down and out of fear, he also left the place. From his statement (Ext.1), it appears that the occurrence took place on 12.08.1996 and the dead body was detected on 14.08.1996 in a drain, whereupon, police was informed. Therefore, the testimony of the PW-4 in the court, that on the next morning, following the day of the occurrence, he informed the Manager about the occurrence cannot be believed. Had he informed the Manager of the garden on the next day of the occurrence, there was no question of detection of the body after two days i.e. on the 14th of September, inasmuch as, evidently, till recovery of the body, the occurrence was not known to anyone. We also noticed, that in his evidence in court, PW-4 deposed that he entered into the house, where the occurrence took place and witnessed the occurrence, whereas, in his statement recorded under Section 164 CrPC, he stated to have seen the occurrence by peeping through the window. In his statement under Section 164 CrPC, he implicated Lal, Sudhir and Monu, whereas in his evidence in court, he implicated Dukhalal, Narayan, Manu and Sudhir. Though, in his evidence in court and statement recorded under Section 164 CrPC, he projected himself as an eye witness, in his previous statement recorded under Section 161 CrPC immediately after the occurrence, he had given a completely different version, inasmuch as, in his previous statement recorded under Section 161 CrPC, he stated that when the victim was not seen for 3/4 days, he suspected, that Monu might have killed the victim meaning thereby, he did not see any occurrence. The inconsistent and self contradictory statement of this witness at different stages of the proceeding, in our considered opinion, rendered the oral testimony of the PW-4 unworthy of inspiring confidence. That apart, the factum of the occurrence having come to light only after detection of the body also belies the claim of the PW-4 being an eye witness of the occurrence. Therefore, in our considered view, no credibility can be attached to the oral testimony of this witness too. If the evidence of PW-4 is discarded, the prosecution is left with absolutely no legal evidence on record, to establish the charges against the accused/appellant. It is real very sad, that a young boy was brutally killed, but fact remain is that prosecution has failed to bring on record any cogent and legal evidence as to the perpetrator of the offence.

The prosecution having failed to bring home the charges against the appellant, the impugned judgment of conviction and sentence cannot be sustained. Accordingly, we set aside the conviction and sentence of the present appellant Sri Sudhir Tanti allow this appeal. The accused/appellant Sudhir Tanti, be set at liberty forthwith, if not required in any other case.

Appreciating the assistance rendered by Mr. Rupam Sarma, learned Amicus Curiae, we hereby provide that he will be paid Rs. 7500/- towards his professional fees, on furnishing a copy of this judgment. The Gauhati High Court Legal Services Committee, Guwahati shall pay the said fee to Mr. Rupam Sarma.

Send down the LCR along with a copy of this judgment and order. A copy of the judgment also be forwarded to the Superintendent of Central Jail, Dibrugarh.