Ganesh Basumatary Vs. State of Assam - Court Judgment

SooperKanoon Citationsooperkanoon.com/894428
SubjectCriminal
CourtGuwahati High Court
Decided OnMay-15-2009
JudgeJasti Chelameswar, C.J. and ;Amitava Roy, J.
Reported in2009CriLJ3705
AppellantGanesh Basumatary
RespondentState of Assam
DispositionAppeal allowed
Cases ReferredAnimireddy Venkata Ramana v. Public Prosecutor
Excerpt:
- amitava roy, j.1. this appeal from jail impugns the legality and/or validity of the judgment and order dated 7-2-2003 passed by the learned sessions judge, kokrajhar in sessions case no. 67/2002, convicting the appellant-accused under section 302 of the indian penal code (for short hereinafter referred to as the ipc) and sentencing him to suffer rigorous imprisonment for life and pay a fine of rs. 3,000/-, in default to undergo further rigorous imprisonment for three months.2. we have heard mr. n. j. dutta, learned amicus curiae for the accused-appellant and mr. z. kamar, learned public prosecutor, assam.3. the version of the prosecution is that on an fir being lodged by one sri manindra basumatary of village - jalpaiguri on 17-4-2002 before the officer-in-charge, basugaon police station, informing that on 14-4-2002 at about 3.30 p.m. the accused-appellant in a drunken condition and in a fit of rage assaulted his wife smt. damayanti basumatary with lathi and blows, resulting in grievous injuries to which she succumbed at the kokrajhar civil hospital, kokrajhar, basugaon p.s. case no. 36/2002 under section 302, ipc was registered. on the completion of the investigation a charge-sheet was laid against the accused/appellant, whereafter, charge was framed against him under that provision of the code by the learned sessions judge, kokrajhar, to which he pleaded 'not guilty' and claimed to be tried. in course of the trial, the prosecution examined six witnesses including the doctor, who had performed the autopsy as well as the investigating officer. the prosecution case is wholly structured on the extra judicial confession said to have been made by the accused-appellant admitting his guilt. the accused-appellant was, thereafter, examined under section 313, cr. p.c. following which, by the impugned judgment and order, the conviction and sentence as above, was pronounced. the accused-appellant did not adduce any evidence in defence. he was, however, heard on the question of sentence.4. the learned amicus curiae has argued that there being no evidence worth the name in law to establish any nexus between the offence alleged and the appellant, the impugned judgment and order is, on the face of the record, illegal and is liable to be set aside. according to mr. dutta, the so-called extra judicial confession said to have made by the accused-appellant being wholly unreliable in the facts and circumstances of the case, the same ought not to have been acted upon by the learned court below. the learned amicus curiae has argued that as it would be apparent from the evidence on record that the investigation by the police had commenced on an information of the incident furnished to it on 14-4-2002, the fir ext. 1 lodged, is, therefore, merely a statement under section 161 of the criminal procedure code and has no probative value whatsoever. referring to the inquest report and the post-mortem report (not exhibited), mr. dutta, has contended that the same being laconical in material aspects also do not support the prosecution case. to endorse his arguments, mr. dutta, has placed reliance on the decision of the apex court in abani k. debnath v. state of tripura : air 2006 sc 518 : 2006 cri lj 314 and of this court in manir all alias hussain v. the state of assam 1995 (3) glt 107.5. the learned public prosecutor, assam, however, in refutation of the above, has contended that in absence of any eye-witness to the incident, the extra judicial confession made by the accused-appellant admitting the commission of the offence as is demonstrated by the testimony of p.w. 1, 3 and 4 is enough to sustain the conviction and sentence. according to mr. kamar, as the information to the police prior to the lodgment of the fir was neither of any offence nor of the complicity of the accused-appellant as the offender, the same could not be construed to be a first information report and, therefore, the written report containing the details of the incident and the involvement of the accused-appellant on 17-4-2002 ought to be treated as the fir. he, thereby, sought to repel the plea of non-admissibility of this document as a record of statements made to the police under section 161 of the criminal procedure code. mr. kamar, in this regard placed reliance on the decision of the apex court in animireddy venkata ramana v. public prosecutor, high court of andhra pradesh : air 2008 sc 1603 : 2008 cri lj 2038.6. before evaluating the rival submissions advanced, it would be appropriate to briefly survey the evidence on record.p.w. 1, shri manindra basumatary, the informant stated on oath that on the date of the incident i.e. 14-4-2002 he was busy in a fair. at about 12.00 noon having come to learn about the incident, he came to the place of occurrence and on asking the accused-appellant of it, he confessed to have killed damayanti. according to this witness, the deceased was then in a critical state and was taken to the hospital, where the doctor declared her to be dead. he proved the fir ext. 1 with his signature thereon as ext. 1(1).7. the evidence of p.w. 2, sri pranay basumatary is of no consequence, as neither he is a witness to the incident nor according to him, he remembered from whom he had heard of the same.8. p.w. 3, sri sudhadhan basumatary, while stated that the incident had occurred in the night of 14-4-2002, deposed that having come to the spot subsequent thereto, he along with others took the deceased to the doctor. according to this witness, the accused-appellant had disclosed to the public that he after taking liquor had assaulted his wife.in cross-examination this witness admitted not to have told the police that he had gone to the house of the accused-appellant and that when he had asked him (accused-appellant) about the incident, he admitted to have made the assault.9. p.w. 4, sri jama charan wari, the co-villager stated that on the date of the incident, while they were in the process of performing some religious, rituals, they were informed that the accused-appellant and his wife were engaged in a fracas. this witness testified that later when he asked the accused-appellant about the incident he confessed to him and other persons present that he had struck the deceased once. it was stated that people there along with the witness took the injured wife to the hospital, where, she was pronounced dead.in cross-examination, this witness also admitted to have omitted to state before the police that he had asked the accused-appellant about the assault.10. p.w. 5, sri dwarendra wari, also a co-villager, is a reported witness. he, however, stated that he visited the place of occurrence and found the deceased in a seriously injured condition, but unable to speak. they then arranged a vehicle and removed her to the hospital, where she was declared dead.11. p.w. 6, sri mahendra nath deori, the investigating officer of the case admitted to have received an information through telephone on 14-4-2002 at about 10.30 p.m. to the effect that smt. damayanti basumatary had succumbed to her injuries at kokrajhar hospital. he visited the hospital next morning and conducted the inquest report and examined witnesses and also requested for the post-mortem of the dead body. he admitted to have received the fir lodged by sri manindra basumatary on 17-4-2002.in cross-examination this witness stated to have prepared the inquest report on 15-4-2002, following which he examined the witness on 17-4-2002 after the receipt of the fir. he denied the suggestion to have examined the witnesses before the fir had been filed. this witness with reference to his case diary confirmed that p.w. 1, manindra basumatary told him that he had asked the accused-appellant, but the latter did not admit to have committed the assault. the witness similarly endorsed that p.w. 3, sri sudhadhan basumatary told him that when he had asked the accused-appellant, the latter had not mentioned that he had assaulted.12. p.w. 7, dr. ramal kumar brahma, claimed to have conducted the post-mortem examination of the dead body of the deceased on 15-4-2002. this witness stated to have detected the following injuries:1. multiple abrasion over the face, left breast back, both knee and posterior aspect of right arm.2. haemotoma back underlying portion. abrasion measuring 3' x 10' of a bottom wood.3. split laceration of scalp over occipital region, membrane contused and bruised. brain is contused. intra chemical haemotoma posterior ally in oxipital area.he opined that the head injury, which was anti-mortem in nature was the cause of death.13. the analysis of the evidence as above, proclaims absence of any eye-witness to the incident. apparently, the information about the death of the deceased at the kokrajhar hospital had been intimated to the police on 14-4-2002 before the fir was lodged on 17-4-2002. it is obvious from the testimony of the investigating officer that he had taken steps towards the investigation in the case from 15-4-2002. the inquest and the postmortem reports both dated 15-4-2002 endorse the above fact beyond doubt. the fir aforementioned, was assuredly, thus lodged after the investigation of the case had commenced. even, otherwise, the contents of the document do not constitute substantive evidence. the informant, p.w. 1. sri manindra basumatary admittedly is not an eye-witness and, therefore, the fir lodged by him and carrying his version by no means can be acted upon as the evidence of an eyewitness of the incident. in the facts and circumstances of the case, we consider it inessential to dilate on this aspect of the debate any further.14. noticeably, the fir had been lodged three days after the incident. there is no explanation for the delay whatsoever. the testimony of p.w. nos. 1, 3 and 4 regarding the extra judicial confession made by the accused-appellant before them, admitting to be the assailant of the deceased, also does not inspire the confidence of his court. the p.w. 6, the investigating officer with reference to the case diary, has stated that p.w. no. 1 and 3, sri manindra basumatary and sri sudhadhan basumatary had told him that when they asked the accused-appellant about the incident, he did not admit the commission thereof. p.w. 4, sri jama charan wari, in his cross-examination conceded that he did not disclose to the police anything about the assault, as he was not interrogated on that count. the testimony of those witnesses on extra-judicial confession of the accused-appellant, thus, is not free from doubt.on a consideration of the evidence bearing on the extra-judicial confession, we do not consider it to be safe to act thereon to base the conviction of the accused-appellant as the perpetrator of the offence with which he had been charged. we have noticed, as well, his denial about such extra-judicial confession in course of his statement under section 313 of the cr. p.c. there is no other incriminating material on record to implicate the accused-appellant in the offence charged.we, therefore, are of the unhesitant opinion that the accused-appellant is entitled to be acquitted of the charge, the prosecution having utterly failed to prove the same. the impugned judgment and order suffers from infirmities on fact as well as on law and, therefore, is unsustainable. the appeal is, thus, allowed. the accused-appellant, sri ganesh basumatary is to be set at liberty forthwith.
Judgment:

Amitava Roy, J.

1. This appeal from jail impugns the legality and/or validity of the judgment and order dated 7-2-2003 passed by the learned Sessions Judge, Kokrajhar in Sessions Case No. 67/2002, convicting the appellant-accused under Section 302 of the Indian Penal Code (for short hereinafter referred to as the IPC) and sentencing him to suffer rigorous imprisonment for life and pay a fine of Rs. 3,000/-, in default to undergo further rigorous imprisonment for three months.

2. We have heard Mr. N. J. Dutta, learned Amicus Curiae for the accused-appellant and Mr. Z. Kamar, learned Public Prosecutor, Assam.

3. The version of the prosecution is that on an FIR being lodged by one Sri Manindra Basumatary of Village - Jalpaiguri on 17-4-2002 before the Officer-in-charge, Basugaon Police Station, informing that on 14-4-2002 at about 3.30 p.m. the accused-appellant in a drunken condition and in a fit of rage assaulted his wife Smt. Damayanti Basumatary with lathi and blows, resulting in grievous injuries to which she succumbed at the Kokrajhar Civil Hospital, Kokrajhar, Basugaon P.S. Case No. 36/2002 under Section 302, IPC was registered. On the completion of the investigation a charge-sheet was laid against the accused/appellant, whereafter, charge was framed against him under that provision of the Code by the learned Sessions Judge, Kokrajhar, to which he pleaded 'not guilty' and claimed to be tried. In course of the trial, the prosecution examined six witnesses including the Doctor, who had performed the autopsy as well as the Investigating Officer. The prosecution case is wholly structured on the extra judicial confession said to have been made by the accused-appellant admitting his guilt. The accused-appellant was, thereafter, examined under Section 313, Cr. P.C. following which, by the impugned judgment and order, the conviction and sentence as above, was pronounced. The accused-appellant did not adduce any evidence in defence. He was, however, heard on the question of sentence.

4. The learned Amicus Curiae has argued that there being no evidence worth the name in law to establish any nexus between the offence alleged and the appellant, the impugned judgment and order is, on the face of the record, illegal and is liable to be set aside. According to Mr. Dutta, the so-called extra judicial confession said to have made by the accused-appellant being wholly unreliable in the facts and circumstances of the case, the same ought not to have been acted upon by the learned Court below. The learned Amicus Curiae has argued that as it would be apparent from the evidence on record that the investigation by the police had commenced on an information of the incident furnished to it on 14-4-2002, the FIR Ext. 1 lodged, is, therefore, merely a statement under Section 161 of the Criminal Procedure Code and has no probative value whatsoever. Referring to the inquest report and the post-mortem report (not exhibited), Mr. Dutta, has contended that the same being laconical in material aspects also do not support the prosecution case. To endorse his arguments, Mr. Dutta, has placed reliance on the decision of the Apex Court in Abani K. Debnath v. State of Tripura : AIR 2006 SC 518 : 2006 Cri LJ 314 and of this Court in Manir All alias Hussain v. The State of Assam 1995 (3) GLT 107.

5. The learned Public Prosecutor, Assam, however, in refutation of the above, has contended that in absence of any eye-witness to the incident, the extra judicial confession made by the accused-appellant admitting the commission of the offence as is demonstrated by the testimony of P.W. 1, 3 and 4 is enough to sustain the conviction and sentence. According to Mr. Kamar, as the information to the police prior to the lodgment of the FIR was neither of any offence nor of the complicity of the accused-appellant as the offender, the same could not be construed to be a First Information Report and, therefore, the written report containing the details of the incident and the involvement of the accused-appellant on 17-4-2002 ought to be treated as the FIR. He, thereby, sought to repel the plea of non-admissibility of this document as a record of statements made to the police under Section 161 of the Criminal Procedure Code. Mr. Kamar, in this regard placed reliance on the decision of the Apex Court in Animireddy Venkata Ramana v. Public Prosecutor, High Court of Andhra Pradesh : AIR 2008 SC 1603 : 2008 Cri LJ 2038.

6. Before evaluating the rival submissions advanced, it would be appropriate to briefly survey the evidence on record.

P.W. 1, Shri Manindra Basumatary, the informant stated on oath that on the date of the incident i.e. 14-4-2002 he was busy in a fair. At about 12.00 noon having come to learn about the incident, he came to the place of occurrence and on asking the accused-appellant of it, he confessed to have killed Damayanti. According to this witness, the deceased was then in a critical state and was taken to the hospital, where the Doctor declared her to be dead. He proved the FIR Ext. 1 with his signature thereon as Ext. 1(1).

7. The evidence of P.W. 2, Sri Pranay Basumatary is of no consequence, as neither he is a witness to the incident nor according to him, he remembered from whom he had heard of the same.

8. P.W. 3, Sri Sudhadhan Basumatary, while stated that the incident had occurred in the night of 14-4-2002, deposed that having come to the spot subsequent thereto, he along with others took the deceased to the doctor. According to this witness, the accused-appellant had disclosed to the public that he after taking liquor had assaulted his wife.

In cross-examination this witness admitted not to have told the police that he had gone to the house of the accused-appellant and that when he had asked him (accused-appellant) about the incident, he admitted to have made the assault.

9. P.W. 4, Sri Jama Charan Wari, the co-villager stated that on the date of the incident, while they were in the process of performing some religious, rituals, they were informed that the accused-appellant and his wife were engaged in a fracas. This witness testified that later when he asked the accused-appellant about the incident he confessed to him and other persons present that he had struck the deceased once. It was stated that people there along with the witness took the injured wife to the hospital, where, she was pronounced dead.

In cross-examination, this witness also admitted to have omitted to state before the police that he had asked the accused-appellant about the assault.

10. P.W. 5, Sri Dwarendra Wari, also a co-villager, is a reported witness. He, however, stated that he visited the place of occurrence and found the deceased in a seriously injured condition, but unable to speak. They then arranged a vehicle and removed her to the hospital, where she was declared dead.

11. P.W. 6, Sri Mahendra Nath Deori, the Investigating Officer of the case admitted to have received an information through telephone on 14-4-2002 at about 10.30 p.m. to the effect that Smt. Damayanti Basumatary had succumbed to her injuries at Kokrajhar Hospital. He visited the hospital next morning and conducted the inquest report and examined witnesses and also requested for the post-mortem of the dead body. He admitted to have received the FIR lodged by Sri Manindra Basumatary on 17-4-2002.

In cross-examination this witness stated to have prepared the inquest report on 15-4-2002, following which he examined the witness on 17-4-2002 after the receipt of the FIR. He denied the suggestion to have examined the witnesses before the FIR had been filed. This witness with reference to his case diary confirmed that P.W. 1, Manindra Basumatary told him that he had asked the accused-appellant, but the latter did not admit to have committed the assault. The witness similarly endorsed that P.W. 3, Sri Sudhadhan Basumatary told him that when he had asked the accused-appellant, the latter had not mentioned that he had assaulted.

12. P.W. 7, Dr. Ramal Kumar Brahma, claimed to have conducted the post-mortem examination of the dead body of the deceased on 15-4-2002. This witness stated to have detected the following injuries:

1. Multiple abrasion over the face, left breast back, both knee and posterior aspect of right arm.

2. Haemotoma back underlying portion. Abrasion measuring 3' x 10' of a bottom wood.

3. Split laceration of scalp over occipital region, membrane contused and bruised. Brain is contused. Intra chemical haemotoma posterior ally in oxipital area.

He opined that the head injury, which was anti-mortem in nature was the cause of death.

13. The analysis of the evidence as above, proclaims absence of any eye-witness to the incident. Apparently, the information about the death of the deceased at the Kokrajhar Hospital had been intimated to the police on 14-4-2002 before the FIR was lodged on 17-4-2002. It is obvious from the testimony of the Investigating Officer that he had taken steps towards the investigation in the case from 15-4-2002. The inquest and the postmortem reports both dated 15-4-2002 endorse the above fact beyond doubt. The FIR aforementioned, was assuredly, thus lodged after the investigation of the case had commenced. Even, otherwise, the contents of the document do not constitute substantive evidence. The informant, P.W. 1. Sri Manindra Basumatary admittedly is not an eye-witness and, therefore, the FIR lodged by him and carrying his version by no means can be acted upon as the evidence of an eyewitness of the incident. In the facts and circumstances of the case, we consider it inessential to dilate on this aspect of the debate any further.

14. Noticeably, the FIR had been lodged three days after the incident. There is no explanation for the delay whatsoever. The testimony of P.W. Nos. 1, 3 and 4 regarding the extra judicial confession made by the accused-appellant before them, admitting to be the assailant of the deceased, also does not inspire the confidence of his Court. The P.W. 6, the Investigating Officer with reference to the Case Diary, has stated that P.W. No. 1 and 3, Sri Manindra Basumatary and Sri Sudhadhan Basumatary had told him that when they asked the accused-appellant about the incident, he did not admit the commission thereof. P.W. 4, Sri Jama Charan Wari, in his cross-examination conceded that he did not disclose to the police anything about the assault, as he was not interrogated on that count. The testimony of those witnesses on extra-judicial confession of the accused-appellant, thus, is not free from doubt.

On a consideration of the evidence bearing on the extra-judicial confession, we do not consider it to be safe to act thereon to base the conviction of the accused-appellant as the perpetrator of the offence with which he had been charged. We have noticed, as well, his denial about such extra-judicial confession in course of his statement under Section 313 of the Cr. P.C. There is no other incriminating material on record to implicate the accused-appellant in the offence charged.

We, therefore, are of the unhesitant opinion that the accused-appellant is entitled to be acquitted of the charge, the prosecution having utterly failed to prove the same. The impugned judgment and order suffers from infirmities on fact as well as on law and, therefore, is unsustainable. The appeal is, thus, allowed. The accused-appellant, Sri Ganesh Basumatary is to be set at liberty forthwith.