A.H Saikia, J.:— Appointed amicus curiae Mr. B. Chetri is absent when the matter is taken up for hearing. Accordingly, the court would like to appoint Miss Dipanjali Pathak as amicus curiae in place of Mr. B. Chetri to assist the court.
2. We have heard Miss Pathak and Mr. B.B Gogoi, learned P.P Assam.
3. This Criminal Jail Appeal has been filed against the judgment and order dated 12.10.2001 passed by the learned Sessions Judge, Nigaon in Sessions Case No. 191(N)/2000 whereby the accused/appellant has been held guilty for commission of offence under Section 302 IPC.
4. On the basis of such conviction, the learned Sessions Judge sentenced the accused/appellant to undergo imprisonment for life and also imposed a fine of Rs. 10,000, on realization of which the same has been ordered to be paid to the wife of the deceased.
5. The prosecution case is that on 21.3.2000 at about 7.30 P.M, following slight altercation the accused/appellant caused grievous injuries with an axe on one Gabriel Induar who died on the spot in the courtyard of P.W 2, Smt. Juspina Induar. The information as regards the incident was lodged by P.W 2, the wife of the deceased at Missa Police Post on 23.3.2000 at about 10.30 P.M whereafter Kaliabor Police Station Case No. 14/2000 was registered under Sections 447/302 IPC.
6. The accused was charged with the murder of Late Gabrial Induar. The case being exclusively triable by the Court of Sessions, the learned Sub-Divisional Judicial Magistrate, Kaliabor, by his order dated 13.10.2000 committed the same for trial by the court of Sessions, Nagaon.
7. On behalf of the prosecution as many as 7 prosecution witnesses were introduced. Amongst the witnesses introduced, P.W 1 Shri Pradip Chandra Basumatary was the Subscriber of the F.I.R which was written on the basis of information furnished by the P.W 2.
8. P.W 2 Juspina Induar is the wife of the deceased who lodged the information before the police.
9. P.W 2 in her desposition stated that the accused Barnabas and her husband were brothers. She further stated that at the time of the incident she was not present as she had gone to the shop. On her return from the shop, P.W 2 saw axe wounds on the body of her husband on his head, chest, in the back and in the left hand.
10. She further stated that the accused had already fled away and he was apprehended by Abdul Hasim, P.W 6 and kept the accused tied. The prosecution witness further stated that she saw the axe stained with blood in the house of the accused. After learning the incident she went to the police station and lodged the F.I.R
11. P.W 3 Somar Lohar is a neighbour. He stated that after receiving the information of the incident he reached the place of occurrence. He found the deceased lying dead with injuries on his head caused by striking with an axe. He deposed that when he asked the accused Barnabas about the incident he admitted that he had killed.
12. The next witness introduced, was P.W 4 Shri Mohan Kherowar who arrived at the place of occurrence on hearing a commotion. He also deposed that the accused Barnabas confessed to him that he had killed Gabriel with an axe.
13. P.W 5 was the Doctor who had conducted postmortem examination on the body of the deceased in the Nagaon Civil Hospital. The medical evidence indicates the following injuries on the body of the accused—
“(1) Incised wound over the left parietal region of the scalp measuring 6 cm × 2 cm × bone deep underlying bone was fractured and meanings of the brain were incised with incised left parietal lobe 5 cm × ½ cm × 1 cm.
(2) Four incised wounds over the back in lumber region vertically placed. Size 5 cm × 2 cm × muscle deep.
(3) Incised wound over the right side of abdomen upper part. Size 6 cm × 2 cm × peritoneal deep.
(4) Incised wound 3 cm × 1 cm × peritoneal deep in middle upper part of abdomen 1
(5) Incised wound over the posterior aspect of the left forearm size 5 cm × 2 cm × bone deep.”
14. In the opinion of the Doctor the injuries were ante-mortem in nature and the injuries were caused by using heavy sharp cutting edge. It was further opined that death was due to shock and hemorrhage as a result of the injuries sustained.
15. P.W 6 is Abdul Hasim who deposed that he reached the place of occurrence after hearing a hue and cry in the house of the deceased. He stated that he saw the accused standing with an axe in his hand and the deceased was lying in the court yard in an injured condition. He also stated that when he asked the accused Barnabas, the accused stated that he killed his own brother.
16. In his cross-examination, P.W 6 stated that the V.D.P members on their arrival at the scene, snatched away the axe from the accused Barnabas and tied him to a Guava tree in the courtyard.
17. According to P.W 7 Shri Ranjeet Baruah the I.O, who arrived at the place of occurrence after the information was being received of the incident, on his arrival he found the accused was tied up to a tree and axe was lying besides him. He seized the axe that lying at the place of occurrence and also arrested the accused.
18. In his cross-examination, the I.O stated that nobody had told him who had kept the seized axe besides the accused. He also stated that he did not send the blood stained axe to the Forensic Laboratory.
19. Interestingly, the P.W 7 in his cross-examination stated that P.W 3 Somar Lohar did not tell the police about the extrajudicial confession made by the accused regarding the killing of Gabriel. He also testified that P.W 4 Mohan Kherowar did not tell him that the accused ever confessed before him that the accused killed Gabriel. At the same the I.O in his cross-examination also asserted that P.W 6 Abdul Hasim did not tell him that he saw the accused standing with an axe in his hand. P.W 7 also stated that P.W 6 Abdul Hasim did not tell him about the accused making any confession about the killing his own brother.
20. During the examination of the accused on 3.8.2001 the accused/appellant who was aged about 66 years, denied all the charges levelled against him as regards the allegations of his involvement in the murder of his own brother Gabriel.
21. From the discreet discussion and careful analysis of the evidence as aforesaid, it is seen that there was no eye witnesses presented during the trial by the prosecution. The entire case of the prosecution was based on the extrajudicial confession made by the accused before P.Ws 3, 4 and 6.
22. It would be risky to base conviction on extra judicial confession in the absence of other corroborative evidence in a criminal trial. In the instant case, the accused was stated to have confessed his discreet role in the murder of the deceased before P.Ws 3, 4 and 6. But P.W 7 the I.O clearly dislodged such evidence deposing that P.Ws 3, 4 and 6 did not inform the police that the accused had ever confessed about his involvement before the three witnesses in the murder of the deceased Gabriel.
23. The accused during his examination had totally denied his involvement in the incident.
24. It was placed on record that the incident appeared to have taken place at about 7 P.M on the day of the “Holy” and since the deceased sustained multiple injuries and the people were shouting and a general commotion was prevailing therein, it is difficult to believe why no direct evidence was introduced by the prosecution to establish the guilt of the accused/appellant. It is also not explained why the blood stained weapon (axe) was not sent to Forensic Laboratory for its examination. Instead of adducing direct evidence, the prosecution relied only on the circumstantial evidence and that too the extrajudicial confession made by the accused before P.Ws 3, 4 and 6 to bring home conviction against the accused.
25. As has already noted, P.W 7 who is the I.O of this case, categorically stated in his cross-examination that P.Ws 3, 4 or 6 did state before the police that the accused had made any confessional statement before those three witnesses. Under such circumstances, it would be highly risky to conclude that the prosecution was able to establish the guilt of the accused beyond any reasonable doubt.
26. On meticulous examination of the testimony of the relevant witnesses of the prosecution particularly P.Ws 2, 3 and 6, we are of the considered view that the extrajudicial confession made by the accused/appellant before them cannot be accepted in view of the deposition made by P.W 7, the I.O
27. That being the position, we are of the firm view that the prosecution failed to prove the case beyond reasonable doubt. Accordingly, the impugned conviction of the appellant under section 302, IPC and the resultant sentence are hereby set aside and quashed.
28. Appellant be set at liberty forthwith if he is not wanted in connection with any other case.
29. Before parting with the case record, we would like to put on record our appreciation to Miss. Dipanjali Pathak, learned appointed amicus curiae for her help and assistance rendered to arrive at a decision in this jail appeal and accordingly, it is ordered that she is entitled to get her professional fee which is quantified at Rs. 2,500.
30. LCR be sent down immediately.
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