Allowed

Deba Kishan v. the State of Assam

Gauhati HC3 Apr 2018CRL.A(J)/56/2014

Case brief

AI extract

What is this about?

Single bench of the Gauhati High Court allowed the appeal and acquitted the appellant of murder. The court held that the conviction relied solely on the testimony of an interested witness who admitted not seeing the incident, whose statement was not made during investigation, and lacked corroboration like the seizure of the weapon.

What did the court decide?

Conviction and sentence set aside; appellant acquitted of charge under Section 302 IPC and ordered released forthwith from jail.

Deba Kishan Vs the State of Assam — Murder and Culpable Homicide | Gauhati HC (2018)

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GAHC010185392014

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRL.A(J) 56/2014

1:DEBA KISHAN

VERSUS

1:THE STATE OF ASSAM

2:SRI ARJUN GARH S/O. LATE KURPA GARH R/O.-MADHUBAN T.E. LINE NO.8 P.S.-DULIAJAN DIST.-DIBRUGARH ASSA

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Advocate for the Petitioner : AMICUS CURIAE

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Advocate for the Respondent : ADDL PP,ASSAM

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BEFORE

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HON’BLE THE CHIEF JUSTICE MR. AJIT SINGH HON’BLE MR. JUSTICE MANOJIT BHUYAN

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For the Appellant : Mr.A Chamuah,learned Amicus Curiae For the Respondents : Ms.Swapna Hazarika, learned Additional Public Prosecutor, Assam

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Date of hearing & Judgment : 3.4.2018

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JUDGMENT AND ORDER

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(Ajit Singh, C.J.)

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The sole appellant Deba Kishan has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.2,000/- with default stipulation.

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The victim of the incident was Durga Garh, aged about 28 years. He was a neighbour of the appellant in Line No.8 of Madhuban Tea Garden, Duliajan.

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According to the prosecution case, on 3/12/2012 at about 8:30 PM, Durga had a quarrel with the appellant at the gateway of latter’s house. Suddenly, the appellant struck Durga on his back and head with a dao injuring him seriously. Arjun Garh (PW-1)-the brother of Durga - hearing hue and cry came out of his house and seeing Durga injured, took him to the Tinsukia Civil Hospital immediately but there the doctor declared him dead. Arjun Garh then lodged the First Information Report-Exhibit-1-on the next day i.e. 4/12/2012 in the Duliajan Police Station. Gajendra Nath (PW-7) wrote the First Information Report for him.

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In the meantime, ASI Bhaben Dutta (PW-8) received a letter Exhibit-2 from the Tinsukia Civil Hospital regarding the death of Durga and making a General Diary entry to that effect, he rushed to the hospital and conducted the inquest over the dead body vide Exhibit3. He also sent the dead body of Durga for post mortem. Rebakanta Baruah (PW-8), who was then posted in Duliajan Police Station, upon receipt of the First Information Report lodged by Arjun Garh, rushed to the place of occurrence, recorded the statements of witnesses, drew sketch map-Exhibit-5-of the place of occurrence and Exhibit-6-place where the dao was thrown by the appellant. He then also arrested the appellant.

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Dr. Pranab Jyoti Dutta (PW-10), the then Senior Medical and Health officer at Tinsukia Civil Hospital, conducted the post mortem examination on the dead body of Durga. He found 7(seven) incised wounds of various sizes over occipital region of scalp, parietal and occipital region of scalp as well as upper neck of the left side and posterior lateral aspect on the dead body. According to him, death was due to the injuries sustained as described, which were

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ante-mortem and caused by sharp cutting weapon. His post mortem examination report is Exhibit-7. Rebakanta Barah (PW-9) after completing the investigation submitted Exhibit-8 charge-sheet against the appellant under Section 302 of the Indian Penal Code.

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During trial, the appellant abjured his guilt and pleaded false implication. However, the trial court relying upon the evidence of Arjun Garh and extra-judicial confession of the appellant made before him, convicted and sentenced the appellant as aforesaid.

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It is argued on behalf of the appellant that the evidence of Arjun Garh is not reliable and the so called extra-judicial confession made by the appellant before him is also an afterthought since he did not state before the police in this regard during investigation. The learned Public Prosecutor has fairly conceded that Arjun Garh did not state as such during investigation and therefore this piece of evidence is apparently an afterthought and a development of his earlier statement.

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After hearing the learned counsel for the parties and also perusing the record, we are of the view that the submissions made by the learned counsel on behalf of the appellant have sufficient force and as such the appeal deserves to be allowed. Arjun Garh deposed in the court that he saw his brother Durga and the appellant quarreling and after sometime, he found Durga lying in an injured condition with injuries on his neck. He also deposed that the appellant told him that he had killed his brother-Durga. But during cross-examination, Arjun Garh admitted that he was inside his house at the time of occurrence and he did not see the incident. Therefore, it is clear that he is not an eye witness and as such he did not see the appellant making the assault. The conviction of the appellant is thus solely based on the testimony of Arjun Garh that the appellant had confessed before him that he had killed Durga. And we find his evidence also to be false and an afterthought. The reason is that Arjun Garh never told before the police during investigation that the appellant had made such a confession before him. Rather he stated before police that he did not find the appellant when he searched for him in his house while taking Durga to the hospital. He also stated before the police that he suspected that the appellant had committed murder of his brother and in his First Information Report too, which he lodged next day of the occurrence, he did not state that the appellant had made any extra-judicial confession before him. Hence, his evidence is highly suspicious and hence not reliable.

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So far as the evidence of Pawan Chakraborty (PW-2), Chakra Kishan (PW-3), Anil Koya (PW-4), Sanatan Karmakar (PW-6) are concerned, those are of no aid to the prosecution since neither of them have deposed that they did see or had any knowledge about the occurrence. Pawan Chakraborty and Chakra Kishan could know about the occurrence two days later and Anil Koya came to know about the occurrence next day from police only. In fact, he was told by the police that the appellant had committed murder of Durga. Sanatan Karmakar had hardly any knowledge about the occurrence and involvement of the appellant.

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Another witness Boloram Kishan (PW-5) has deposed that on hearing hue and cry, when he came out from his house, he came to know that Durga has been killed by the appellant. He has also testified that after the police arrived, the appellant stated in the presence of village people that he has killed Durga. This witness has clearly admitted in his cross examination that he personally did not see the incident and he came to know from police that appellant admitted his guilt. Therefore, the evidence of Boloram Kishan also does not connect the appellant with the murder of Durga. Also, any confession made by an accused in the presence of police is not admissible in evidence. Not only this, Rebakanta Barua, being the Investigating Officer, neither deposed that the appellant had admitted his guilt nor any confessional statement was recorded. Hence, the evidence of Boloram Kishan that the appellant made an extra-judicial confession before the public is neither truthful nor reliable.

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Besides, interestingly the weapon of assault was also not seized by the police and as such there is nothing on record to even remotely suggest that the appellant used that weapon to commit the murder. There is hardly any whisper from the Investigating Officer that the weapon of the crime was ever seized or discovered at the instance of the appellant and thus we are of the considered view that there is absolutely no evidence at all to rope him for the charge of committing murder of Durga.

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In Tea Estates, the labourers reside closely in small houses with small compounds. No doubt, the dead body was found in the open compound of the appellant and as such he was expected to explain the circumstances under which the dead body was found in his compound and this casts a doubt on the appellant. But, doubt however grave cannot take the place of cogent evidence and substitute it to base a conviction.

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For these reasons, we disagree with the findings of the trial court and set aside the impugned conviction and sentence. We accordingly acquit the appellant of the charge under Section 302 of the Indian Penal Code. He is reportedly in jail. He be released forthwith.

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The appeal is allowed.

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Sd/Sd/JUDGE CHIEF JUSTICE

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Comparing Assistant

Deba Kishan v. the State of Assam

Case brief

What is this about?

What did the court decide?

Deba Kishan v. the State of Assam

Case brief

What is this about?

What did the court decide?

What the court decided

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