DIBAKER NUNIA & ANR. versus THE STATE OF ASSAM on 30 August 2022

1. This appeal is directed against the judgment and order dated17.09.2009, as passed by the Gauhati High Court in Criminal AppealNo. 79 of 2006, whereby the High Court has dismissed the appeal filedby the present appellants and has affirmed the judgment and order datedG16.02.2006, as passed by the Session Court, Cachar, Silchar, Assam inSessions Case No. 37 of 2003 convicting the appellants of offence underSections 302/34 Indian Penal Code, 1860 (‘IPC’) and awarding thesentence of rigorous imprisonment for life and fine of Rs.1,000/- eachwith default stipulations.

2. Briefly put, the relevant background aspects of the matter areas follows:

On 01.10.1999, at about 10 a.m., PW-1 Amrit Tanti lodged F.I.R.at the Ghungoor Police Outpost, stating that on the previous day, atabout 12:30 midnight, while he was returning home from Sonai after anelection campaign, he found a man lying in front of Congress Party’selection office near the shop of PW-5 Joynarayan. According to theinformant, from the light of an electric lamp, he could identify the manlying on the ground to be his younger brother Amar Tanti. He went homeand came to know from his parents that the two accused persons Dibakarand Babul (the appellants) had assaulted the deceased in the eveninghours. Hence, PW-1 Amrit Tati 1odged the written FIR whereupon, GDEntry No. 604 dated 01.10.1999 of Ghungoor Police Outpost wasrecorded and the FIR was forwarded to the Officer-in-Charge of SilcharPolice Station. Accordingly, Silchar P.S. Case No. 1362 of 1999 underSection 302/34 IPC was registered.

2.2. The case was investigated mainly by PW-10 Dipen Paul.Inquest was held on the dead body which was sent for postmortemexamination. The statements of various persons acquainted with theincident were also recorded. At the conclusion of investigation, charge-sheet was submitted against the accused-appellants.

2.3. In view of the nature of offence, the case was committed tothe Court of Sessions. In relation to the charge of offence under Section302/34 IPC, the appellants pleaded not guilty and claimed trial. In thecourse of trial, ten witnesses were examined on behalf of the prosecution.The appellants did not examine any witness in defence. However, thestatements of appellants were recorded under Section 313 of the Codeof Criminal Procedure, 1973. At the conclusion of trial, the accused-appellants were convicted and sentenced as aforesaid.

3. The prosecution case mainly rested on the testimony of PW-2Sukhram, father of the deceased and PW-3 Menoka Tati, mother of thedeceased, both of whom were said to be the eye-witnesses to theoccurrence.

3.1. PW-2 Sukhram stated that on the date of occurrence, hewas returning home at about 8 p.m. along with his wife from Silchar.At Shilcoorie market, he heard cries of his son Amar and rushed towardsthe place of occurrence. He saw profuse bleeding from the head of his A

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Ason. He found accused Babul over-powering his son and the otheraccused Dibakar assaulting him with a dao. Seeing blood from the injuriesof his son, this witness fell unconscious and he regained consciousnessin the night. The witness stated that he could identify both the accusedpersons in the street light. He reported the incident to his son (PW-1) inthe night of occurrence.B

In cross-examination, this witness PW-2 stated that though somepersons came to the place of occurrence, they left immediately. Hestated that though Silchar Medical College Hospital was at a distance ofabout 5 k.m. from the place of occurrence, he could not remove his sonthere as he was unconscious.

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3.2. PW-3 Menoka Tati is the wife of PW-2 and step-mother ofthe deceased. She stated that at the time of occurrence, she was cominghome from Silchar town with her husband. While they arrived Shilcooriemarket at about 7/8 p.m., they heard the deceased crying for help. Alongwith her husband, she went to the place of occurrence and saw theDaccused Babul holding the hands of the deceased and the other accusedDibakar assaulting him by means of a dao. Her husband tried to resist,but the accused persons did not pay any heed to it. She further statedthat she witnessed the incident from a distance of about 16 feet andcould properly identify the accused persons in the electric lights. ThisEwitness also stated that seeing the blood from the body of the deceased,her husband fell unconscious and she took her husband home. Thiswitness also stated that on the night of occurrence itself, she reportedthe incident to PW-1 at about 3 a.m. when PW-1 returned home withpolice.

This witness stated in the cross-examination that she saw theFquarrel between the accused persons and the deceased. She denied thedefence suggestion that the deceased always remained intoxicated andused to keep himself involved in quarrel with other persons. She statedthat she saw about 100/150 persons at the place of occurrence in theelectric light.G

4. So far the injuries on the person of the deceased are concerned,they were established by the testimony of PW-7 Dr. Homeswar Sharmawho testified to the postmortem report, wherein the injuries were statedin the following manner:

“Injuries:H

DIBAKER NUNIA & ANR. v. THE STATE OF ASSAM[DINESH MAHESHWARI, J.]

1) Incised wound on the neck in the upper part placed obliquelymeasuring 11 x 6 x 6 cms cutting all the structures from the skinupto the second cervical vertebrae which is completely cutalongwith the blood vessels on the right side (see diagram).

2) Incised wound- two numbers- placed parallel to each other and0.5 cm apart over the left temple measuring 5 x .5 x 1 cm each.

3) Punctured wound of semi-lunar shape measuring 4 x .5 x thoraciccavity deep over the left side of the thorax at inferior angle of thescapula.

4) Incised wound 4 cm long skin deep only over the anterior surfaceof the right shoulder.

5) Two incised wounds placed 1 cm apart measuring 5 x .5 x 1.5cm over the left temporal region cutting upto the outer table oftemporal region cutting upto the out table of temporal bone andthe wounds placed obliquely. Larynx found incised and exposingthe vocal cord under injury No.1.

Rest of the organs in the body were healthy and pale.”

5. The other alleged private witnesses did not support theprosecution case but, the Trial Court proceeded to rely upon thestatements of PW-2 and PW-3 while, inter alia, observing as under:

“22. ……There is clear evidence of P.W .2 and P.W .3 thatthere was profuse bleeding from the body of the deceased, at thesight of which P.W .2 fell down on the ground being unconscious.There are many people who cannot see nascent human bloodand gets fainted. This situation happened in case of P.W.2. Somehow he was removed home and he regained his senses at thedead of night and he reported the incident to P.W.1. Upon carefulperusal of the evidence of P.W.2 and P.W.3 I find no ground todisbelieve their testimony. Their evidence has been properlyaccepted by the defence through cross-examination to be that ofeye-witnesses. Hence, the clear finding is that P.W.2 and P.W.3were the actual eye- witnesses to be occurrence.

23. There is no ground of false implication by P.W.2 and P.W. 3.There is no defence case that the two witnesses had any inimicalrelationship with the accused persons. There was no previousgrudge with the accused persons. They had no axe to grind due to A

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such previous grudge. There is no suggestion in this respect fromthe defence of P.W.2 and P.W. 3. The deceased was their ownson, though P.W. 3 was the step mother. They would not go toimplicate the innocent persons by exonerating the real culprits.Thus, there is no plea of giving false evidence by P.W. 2 and P.W.3,and I find that being actual eye-witnesses to the occurrence theparents of the deceased came forward to rope in the real culpritsand the assailants of their son.

24. It is a fact that there were many people in the market andshop keepers were there when the incident took place at about 8p.m. in the light of electricity. It has been submitted that none ofthose perons came to support the prosecution case. Through sucha submission the defence has admitted that there was sufficientlight at the place of occurrence to clearly identify the accusedpersons. Hence, identity of the accused persons through P.W. 2and P.W. 3 is not a matter of doubt or dispute.

6. The Trial Court rendered the finding against the appellants inthe following manner:

“31. From what has been discussed above, I find that on the eveningof 30.09. 99 the two accused persons Dibakar and Babul, attackedthe deceased at Shilcoorie bazar under Silchar P.S. with deadlyweapon. It was witnessed by the parents of the deceased whowere P.W. 2 and P.W. 3. The deceased died of these injuries soonafter the incident. The accused persons have been well identifiedby prosecution witnesses. The accused persons in furtherance oftheir common intention, due to previous dispute, attacked thedeceased with deadly weapon over the vital parts. So, they clearlyintended to cause the death of the deceased. One of the accusedcaught hold of the deceased so that there was no scope for thedeceased to escape from the place of occurrence, and the otheraccused attacked him mercilessly. The defence failed to discardthe prosecution witnesses - particularly P.W. 2 and P.W .3 in anymanner. So, this is a clear case of murder of the deceased by theaccused persons.

32. However, I find that as per evidence of P.W. 2 and P.W.3, atfirst there was a quarrel between the deceased and the accusedpersons. But the deceased was totally unarmed and the accused DIBAKER NUNIA & ANR. v. THE STATE OF ASSAM[DINESH MAHESHWARI, J.]

persons were armed with deadly weapons. There is no evidencethat the accused persons were first attacked by the deceased.They were the accused persons who without any ground attackedthe deceased. There was no provocation from the deceased atthe place of occurrence. Hence, I find that this is a clear case ofmurder punishable U/S 302 I.P.C. The defence failed to bring thecase to any of the exceptions U/S 300 I.P.C. There is no excuseor exception for the accused persons in committing the crime.They attacked the deceased on the public road with deadly weaponsover the vital parts of the body. As such, they intended to causethe death of the deceased and caused the same.

7. Before the High Court, the reliability of PW-2 and PW-3 wasseriously put to question. The High Court, however, rejected thecontentions urged on behalf of the appellants in the following manner:

“16. It is correct, as contended by the learned counsel for theappellants, that PW.2 in his statement before the police had statedthat after the incident he along with his wife (P.W.3) had gonehome and had taken their meal, whereafter, they had gone to bed.Such conduct, in the normal course, would have been unreasonableand unacceptable, particularly when the son of P.W 2, and P.W.3was facing assault by the two accused-appellants who were armedwith ‘dao’. However, the aforesaid aspect of the matter is capableof - being understood by the defence version offered in the cross-examination of P.W.3 which is to the effect that the deceasedused to be in a state of intoxication and he had been involvedearlier in several quarrels with other people. If that be so, the exit/departure of P.W.2 and P.W.3 after the quarrel and even afterseeing the assault is fully understandable. That apart, it is in theevidence of P.W.3 that on seeing the deceased smeared in bloodP.W.2 had fallen unconscious, whereafter, he was taken homeand had regained his senses while at home. The departure ofP.W. 2 and P.W. 3 from the place of occurrence and their goingto sleep can also be explained and reasonably understood on theaforesaid testimony of P.W.3. It is, therefore, our considered viewthat notwithstanding what has been contended on behalf of theaccused- appellants, the evidence of P.W.2 and P.W.3, on themost material part of the incident is acceptable and we are inclinedto act on the basis of the testimony of the two eye witnesses.”

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A8. Learned counsel for the appellants has strenuously argued thatthe Sessions Court as also the High Court in this matter have proceededon irrelevant considerations and have ignored significant shortcomingsin the prosecution case. According to the learned counsel, conviction ofthe appellants is essentially based on the testimony of PW-2 and PW-3but their statements not only carry serious contradictions but also carryBinherent improbabilities; and while taking their version on face value, it isagainst the natural and normal conduct for any person to go home afterhaving seen his son in pool of blood on being assaulted by two personsand then, to take the meal and go to sleep.

9. Learned counsel has contended that this unnatural conduct ofCthe parents of the deceased has been ignored by the learned SessionsJudge altogether. Further, the High Court has provided justification tothis unnatural conduct with reference to the fact that the deceased hadallegedly been involved in quarrels with other people. Learned counselwould contend that even if it be assumed that the deceased was involvedDin quarrels, his parents would not be so unconcerned about their sonwhen he had been assaulted by two persons and was badly injured withblood oozing from his head.

10. Learned counsel would further argue that when testimony ofPW-2 and PW-3 is removed out of consideration for being of entirelyunnatural conduct, the fact of the matter remains that none of theEindependent witnesses have supported the prosecution story. In this viewof the matter, the appellants deserves to be acquitted. Learned counselhas also argued that the incident took place at about 7-8 p.m. on 30.09.1999whereas the FIR was lodged only on 10 a.m. on 01.09.1999 by PW-1,brother of the deceased. This inordinate delay in FIR had remainedFunexplained and the prosecution case could not have been believed onsuch an FIR.

11. The learned counsel for the State has duly supported thejudgment and order impugned and has submitted that when the totalityof circumstances are taken into account, the statements of PW-2 andGPW-3 cannot be said to be totally unreliable and the concurrent findingsbased on the said statements call for no interference.

12. We have heard learned counsel for the parties and haveexamined the material placed on record.

13. In this case, both the Trial Court and the High Court haveHagreed in their appreciation of evidence and have arrived at concurrent findings of fact; and ordinarily, in an appeal by special leave againstconcurrent findings of fact, this Court would not enter into reappreciationof evidence. However, if the assessment of the Trial Court and the HighCourt is vitiated by any error of law or procedure or misreading ofevidence or any disregard to the norms of judicial process leading toserious prejudice or injustice, this Court may consider interference inan appropriate case so as to prevent miscarriage of justice.

14. After having examined the present matter in its totality, weare impelled to consider interference herein because the findings asreturned by the Trial Court and the High Court apparently suffer froman entirely erroneous approach leading to miscarriage of justice.

15. As noticed, the findings in question are based essentially onthe testimony of PW-2 and PW-3, who were alleged to be the eye-witnesses to the incident. No other independent witness has testified insupport of the prosecution case. The High Court took note of the factthat PW-2 in his statement before police had stated that after the incident,he along with his wife PW-3 went home, took their meal and slept. TheHigh Court had rightly observed that such a conduct in the normal course,would have been unreasonable and unacceptable, particularly when theson of these witnesses was facing assault by two persons. However,the High Court took into account the facts emerging on record that thedeceased had been involved in several quarrels with other people to theknowledge of his parents. According to the High Court, such backgroundof the deceased would explain the exist/departure of PW-2 and PW-3from the place of occurrence and also of their going to sleep. With respect,we are unable to accept this approach.

16. As per the assertion of PW-2 and PW-3, they had seen theirson being assaulted by two persons with weapon. PW-2 had allegedlyfallen unconscious after seeing the blood oozing from the body of hisson. In that situation and scenario, it is difficult to appreciate that thesewitnesses would go home, take meal and go to bed without botheringabout the welfare of their injured son. This aspect is coupled with thefact that they had allegedly narrated the incident to PW-1 only when hereached home after having seen the dead body of his brother. Then, theFIR was lodged next day morning at 10 a.m.

17. Taking all the circumstances into account, in our view, testimonyof PW-2 and PW-3 could not have been accepted as that of eye-witnessesto the incident from any standpoint. Moreover, PW-4 Biren Patra, PW- AB

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A5 Joynarayan Kalewar, PW-8 Dilip Kheira and PW-9 Sudama Bari, whowere projected by the prosecution as independent witnesses, did notsupport the prosecution case at all.

18. Aforesaid being the position, the appellants, even if named inthe FIR, could not have been convicted in this case.

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B19. It remains trite that in such a criminal case, the prosecution isexpected to prove its case and to substantiate the charge beyondreasonable doubt. A reasonable doubt is not a mere possible doubt but afair doubt based upon reasons and common sense. It must grow out ofthe evidence in the case[1]. When a reasonable doubt arises in a matter,benefit of doubt must be given to the accused. In the present case, theCdoubts reasonably arising in the matter had been brushed aside by theHigh Court on the logic that itself remains unacceptable. The approachof the Trial Court in accepting the testimony of PW-2 and PW-3 with theobservations that there was no reason for them to implicate anyoneexcept the real culprit, again, remain that of assumptions which are notDcompatible with the given set of facts and circumstances.

20. It is true that the deceased had been brutally assaulted andhad received multiple injuries on vital parts but, on the evidence as adducedby the prosecution, it is difficult to conclude beyond reasonable doubtthat the appellants alone were the authors of such injuries. In view ofEabove, we find it to be a fit case for interference in the concurrent findingsof the Trial Court and High Court.

21. Accordingly and in view of the above, this appeal succeedsand is allowed.

22. The impugned judgment and order dated 17.09.2009, asFpassed by the Guahati High Court in Criminal Appeal No. 79 of 2006 asalso the judgment and order dated 16.02.2006, as passed by the SessionsJudge, Cachar at Silchar in Sessions Case No. 37 of 2003 are set aside;and the appellants are acquitted as such. If the appellants are in custody,they be released immediately.

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Divya Pandey(Assisted by: Deepak Panwar, LCRA)

Appeal allowed.

1 Vide: Bhaskar Ramappa Madar & Ors. v. State of Karnataka: (2009) Cri. L.J. 2422H(SC) (at pg. 2431)