ANUKUL MANDAL Vs. STATE OF ASSAM

JUDGEMENT

(1.) This criminal appeal is directed against the judgment dated 17-4-2009 passed by the learned Sessions Judge, Sivsagar, Assam convicting the appellant under Section 302 IPC and sentencing him to undergo life imprisonment with a fine of Rs. 1,000/- and, in default thereof, to suffer rigorous imprisonment for three years.

(2.) The facts giving rise to this appeal may be noticed immediately. According to the prosecution, on 30-6-2006, an FIR was lodged by one Mantu Chetia with the Nazira Police Station alleging that on that day at about 8-30 AM, the appellant, who is his brother-in-law, had done to death his friend, Prasanta Barho ("the deceased") in the bedroom of his (Mantu) house by means of dao while both of them were on a visit to his house. On receipt of the FIR, the Officer-in-harge of Nazira P.S. registered a regular case being Nazira P.S. Case No. 74/2006 U/s 302 IPC and thereafter took up investigation of the case by himself. After investigation of the case, the police charge-sheeted the appellant under Section 302 IPC to stand the trial. On commitment, the learned Sessions Judge framed the charge against the appellant U/s 302 IPC, who pleaded not guilty to the charge and claimed to be tried. In the course of trial, the prosecution examined as many as eleven witnesses and exhibited documents and materials to bring home the charge against the appellant. After prosecution case was closed, the appellant was examined under Section 313, CrPC, who denied all the allegations. On the contrary, he pleaded that he is innocent and that he had gone to the house of his father-in-law (the deceased) to bring some herbal medicines when the neighbours of the deceased, out of suspicion, caught and tied him to a tree and implicated him in the case. No evidence was, however, adduced by him in his defence. After hearing the learned Public Prosecutor and the learned defence counsel, the trial court passed the impugned judgment of conviction and sentence.

(3.) Assailing the impugned judgment of conviction, Mr. P. Kataki, the learned counsel for the appellant, argues that in a case such as this appeal, based on circumstantial evidence, and where there was no ocular witness, the trial court was under obligation to consider as to whether the circumstances, cumulatively, taken together should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellant and none others: this vital legal point has been completely overlooked by the trial court in returning a verdict of guilt against the appellant. He next contends that no reliable evidence could be produced by the prosecution to prove that the dao in question was seized at the instance of the appellant: though the material Ext. 1, namely, the dao was alleged to have been seized from the possession of the appellant, yet PW 1, PW PW 3, PW 5, PW 6 and PW 8, in their evidence, did not corroborate each other as to from whom the same was actually seized: the seizure of the dao from the possession of the appellant is, therefore, highly doubtful. The learned counsel further submits that though PW 1 stated in his examination-in-chief that one of his uncle's son whose name he had forgotten had informed him that the appellant had caused the death of the deceased, his uncle's son was never examined by the prosecution and, as such, the testimony of PW 1 is reduced to hearsay evidence and is not admissible in law. Finally, he contends that there is material improvement/embellishment in the statement of PW 4 inasmuch as her statement in Court that when she rushed out of her house, she saw the appellant getting out of the house of PW 1 with a dao in his hand, was never stated to the police during investigation. According to the learned counsel, such omission amounts to major contradiction and an improvement in the case of the prosecution, which could not have been relied upon by the trial court for convicting the appellant. As the prosecution case is highly doubtful, argues the learned counsel, the conviction of the appellant cannot be sustained in law, and is liable to be set aside.