Crl.A. 5/2006 BEFORE HON’BLE MR JUSTICE AMITAVA ROY HON’BLE MR JUSTICE A.K.GOSWAMI JUDGMENT AND ORDER (ORAL) (Amitava Roy,J) In challenge is the judgment and order dated 6.1.2006 passed by the lear ned Sessions Judge, Hailakandi in Sessions Case No.50/2005 thereby convicting t he appellant under section 302 of the Indian Penal Code ( for short, hereafter r eferred to as the ’IPC’) and sentencing him to undergo R.I. for life and also to pay fine of Rs.5000/- in default, to suffer R.I. for another period of three mo nths. 2. We have heard Mr AM Mazumdar, Senior Advocate assisted by Mr A Choudhury , Advocate, for the appellant and Mr KA Mazumdar, learned Addl. Public Prosecuto r for the respondent State. 3. Lala P.S Case No.168/2004 under section 302 IPC was registered on 19. 10.2004 on the FIR lodged on the same date by one Pradyut Chakraborty, the brot her of the deceased, Rajat Chakraborty. The FIR disclosed that at about 4 p.m. o f the previous day i.e. 18.10.2004, the accused appellant had visited their h ouse with whom the deceased left in his(deceased) motorcycle to Manik Nagar. At around 9 p.m. ,in the evening, the informant came to learn that his brother had met with an accident in the neighbourhood of the weigh house of chabbis at Lakh inagar Charabari. He having rushed to the place of occurrence along with his nei ghbours, found the deceased by the side of a drain lying dead out of grievous in juries on his head. The informant expressed his suspicion against the accused ap pellant to be the perpetrator of the crime. After investigation, charge sheet wa s submitted against the accused appellant under section 302 IPC. Charge was also framed against him by the learned trial court under the aforementioned provisio n of law to which he pleaded not guilty . 4. The prosecution examined eight witnesses including the Investigating O fficer and the doctor who had performed the postmortem examination. The accused appellant was examined under section 313 Cr.P.C. He did not adduce any evidence in defence. The judgment and order convicting him as above followed. 5. It would be appropriate at this stage to notice the evidence in bare es sentials. Admittedly, there is no eye witness to the incident. 6. PW 1, Smti Sudipta Roy stated that at about 7-30/8.00 P.M. of 18.10.2004 while she was in her house, she heard cries ’dacoit’ & &’dacoit’ &. and according ly telephoned to Ramkrishna Nagar Police for necessary intervention. According to the witness, she later on came to learn about the death of the deceased. 7. The evidence of PW 2 has no significance. 8. PW 3, Pradyut chakraborty, the informant, deposed that at about 4 p.m. o n 18.10.2004 the accused appellant had come to their house and had asked his eld er brother (deceased) to accompany him to Durga Puja, whereafter the latter acco mpanied him(accused appellant ) on his motorcycle. The witness stated that the accused appellant however, left his bicycle on which he had come at their hous e. According to him, he learnt that his brother had been killed by the accused a ppellant while they were returning from the Puja mandap at Ainerkhal. He therea fter visited the place of occurrence at 8-30p.m. accompanied by other persons and found his brother lying dead in a drain. The witness claimed to have seen an incised wound in the parietal region of the deceased with the blood oozing out therefrom. He also stated about the motorcycle which he found was lying by the s ide of the deceased. The witness stated that the place of occurrence was not a r esidential area, but he deposed to had found the police and other people to be p resent there when he reached the spot. He proved the FIR, Ext.1. He also prove d seizure of the bicycle by police vide Ext.3. In cross-examination, he however, denied the suggestion that the localit y was known as dacoit nagar for frequent dacoities thereat. He stated that the motorcycle of the deceased had been purchased recently and even did not bear it s registration number. 9. PW 4, Smti Chandrima Chakraborty, wife of the deceased more or less reit erated the evidence of PW 3. She, however, did not visit the place of occurrence . 10. The evidence of PW 5, Smti Shila Chakraborty, mother of the deceased is also identical to the one of PW 4. 11. PW 6, Probir Bhattacharjee stated that on the date of the occurrence in the evening at 7.00 p.m., the deceased along with the accused appellant had c ome to his house in a motorcycle and met his(witness) brother Protap who is a pr iest. The witness stated that thereafter the accused appellant and the deceased left by a motorcycle being driven by the latter. He deposed that about 1- ‰ ho urs later, he noticed that a police van was proceeding towards Ishancherra where after the brother of the deceased came to his house and inquired about his(decea sed) whereabout. This witness did not visit the place of occurrence and stated to have reported about the death of Rajat Chakraborty at Ishancherra. In cross examination, this witness stated that there was a dacoity in th e area about 10 years prior thereto, but admitted that after the occurrence of t he incident in which Rajat Chakraborty had been killed, a police patrol outpost had been set up thereat. 12. PW 7, Dr MR Laskar who had performed the postmortem examination stated to have detected one incised wound over the temporal parietal region cutting scalp bone, membranes and cerebral materials. He opined that the injury was caus ed by sharp weapon and that death was due to haemorrhage resulting from the Cer ebral injury. He testified that the injury was ante mortem in nature. He proved the postmortem report as Ext.4. 13. PW 8, Md Lokman Ali Choudhury was at the relevant point of time attached to Lala Police Station and had conducted the investigation of the case. He dep osed that on receiving a telephonic information he proceeded to the place of occ urrence at Ishancherra and found the dead body of Rajat Chakraborty with injurie s on his person. He also mentioned about the motorcycle thereat. He stated about the conduct of inquest of the dead body and proved the inquest report, Ext, 5. He also proved the sketch map drawn by him at the place of occurrence vide Ext. 6. He stated about the seizure of the motorcycle and the bicycle vide Exts.2 and 3. In cross examination, he admitted that the place of occurrence was loca ted in a dacoity prone area and that there was a police station also at about on e kilometer beyond the same. The Investigating officer stated that he did not fi nd any weapon at the place of occurrence. He admitted of not making any enquiry whether the deceased had any animosity with any person. He stated that when he v isited the place of occurrence, the accused appellant had appeared before him and had narrated a story which was not taken down by him. 14. In his examination under section 313 Cr.P.C, the accused appella nt answered in the affirmative the following question - Q 1 : It has been alleged that around 4 p.m. on 18.10.04, you went t o the house of Rajat Chakraborty by bicycle and leaving the bicycle there at his house, went to the house of P.W.6 Prabir Bhattacharjee by a motor cycle belongi ng to Rajat Chakraborty, accompanied by Rajat Chakraborty himself. What do you w ant to say ? His answer to the Question No.3 as hereinbelow is also pertinent. Q 3: It has been alleged that after about 1 or 1 ‰ hours Rajat Chakrabo rty was learnt to have killed at Ishan Cherra. What is your reply ? Ans. It is not true. Both of us were attacked by dacoits on the road. 15. The learned senior counsel for the appellant has argued that in absence of an eye witness, having regard to the facts and circumstances in whic h the deceased was found dead, his implication is unproved and therefore the impugned judgment and order being patently illegal is liable to be interfered w ith. Mr Mazumdar has urged that as the prosecution has failed to prove any animu s of the accused appellant against the deceased and that it having been demons trated by the evidence on record that the place of occurrence is a dacoity pron e area,he( the accused appellant) can by no means be said to be involved in the incident and therefore, he ought to be acquitted. Without prejudice to the abov e, Mr Mazumdar has argued that the plea of being attacked by dacoit per se does not absolve the prosecution to prove the charge beyond all reasonable doubt and it having miserably failed to discharge that burden, the learned trial court ha d obviously committed an error in convicting and sentencing him by the impugned judgment and order. The learned senior counsel has braced up his arguments by c ontending that as the circumstantial evidence sought to be cited by the prosecu tion does not meet the tests laid down by a plethora of judicial pronouncements , the impugned judgment and order in any view of the matter, is unsustainable i n law and on facts. To endorse his argument, Mr Mazumar has placed reliance on a decision of the Apex Court in Paramjeet Singh Alias Pamma , Appellant vs. State of Uttarkhand, Respondent, (2010) 10 SCC 439. 16. Mr KA Mazumdar, learned Addl. Public Prosecutor, on the other hand, ha s argued that not only at the relevant point of time, the place of occurrence wa s not a dacoity prone area, no information of any such dacoity having been repo rted to any of the police stations in the adjoining locality, the plea of the d efence is wholly unbelievable. According to him, absence of eye witness notwiths tanding, the circumstantial evidence ,more particularly the admitted fact of the deceased and the accused appellant beig together till the occurrence of the in cident leads to the irrefutable conclusion of the guilt of the accused appel lant and therefore, the impugned judgment and order is perfectly justified and d oes not warrant any interference. 17. That in the late afternoon of the date of occurrence i.e. 18.10.2004, t he deceased had accompanied the accused appellant in his motorcycle is a fact bo rne out by the record. It is not disputed by the defence that they were seen to gether till the ultimate point of time. According to it, they were attacked by d acoit on the road. Noticeably, the prosecution has not been able to bring on re cord any evidence of animus of the accused appellant against the deceased whic h could have generated a possible motive of luring him out of his house to seen his end later in the evening. The fact that the accused appellant had left his bicycle in the house of the deceased cannot also be overlooked in this context. The evidence of the Investigating Officer ,PW 8 that while he visited the place of occurrence, the accused appellant had appeared before him and had endeavoured to provide a version of the incident can by no means be disregarded. It is a pointer towards his innocence. It is inexplicable as to why the Investigating officer did not record the narration offered by the accused appellant. This assu mes significance in view of defence plea of both being attacked by dacoits at th e place of the occurrence. The fact that the brand new motorcycle of the decease d had been abandoned at the place of occurrence also lends credence to the ple a of attack by dacoits. 18. On an evaluation of the evidence of the prosecution witnesses and the disclosures gathered therefrom, we are of the view that in the facts and circum stances of the case, the prosecution has failed to prove the charge against the appellant beyond all reasonable doubt. Neither the propositions of last seen t ogether nor, the circumstantial evidence is considered sufficient enough to safe ly convict him on the charge. The decision of the Apex Court in Paramjeet Sin gh(Supra), applies in all in the facts of the case and endorses our view. The a ccused appellant according to us is entitled to the benefit of doubt. 19. The appeal is thus allowed. The impugned judgment and order dated 6 .1.2006 passed by the learned Sessions Judge, Hailakandi in Sessions Case No.50/ 2005 is interfered with. The accused appellant would be set at liberty forthwith .