Babul Kalita & Anr. Vs. State of Assam
EmailAppeal: Criminal Appeal No. 620 of 1998
Petitioner: Babul Kalita & Anr.
Respondent: State of Assam
Apeal: Criminal Appeal No. 620 of 1998
Judges: K.T. THOMAS & D.P. MOHAPATRA, JJ.
Date of Judgment: Mar 30, 2000
Head Note:
CRIMINAL LAW
Indian Penal Code, 1860
Sections 302,34 with Evidence Act, 1872 – Sections 3, 27 – Murder – Four accused – Two acquitted on benefit of doubt – Other two convicted – 4 stab injuries on deceased – Recovery of daggers at the instance of three accused – No recovery of any weapon at the instance of one of the convicted accused. Held that he was entitled to benefit of doubt. Hence acquitted.
(Paras 6, 7)
JUDGEMENT:
ORDER
1. Out of four persons arraigned for the offence under Section 302 read with Section 34 of the Indian Penal Code the trial court convicted two persons, who were arrayed as A-1 (Babul) and A-4 (Tileswar), the other two persons who were arrayed as A-2 (Satin) and A-3 (Nagen), were given the benefit of doubt and they were acquitted. The High Court confirmed the conviction and sentence passed on the convicted persons and they filed this appeal by special leave.
2. The case relates to the murder of Anu Ram Kalita, who was an old man of 78 years. He was murdered at 7.30 p.m. on 21.9.1988 in front of his house. The prosecution case is that he was coming from a market and while nearing his house the assailants stabbed him with daggers. Though he could survive for a short period and in the meanwhile he mentioned to those who reached the stop as to what happened. He later succumbed to his injuries.
3. PW-5, who conducted the post-mortem examination has stated that the deceased had the following injuries:
“1. One cut injury on the lateral side of the left elbow 8 cm x 4 cm size involved up to the muscle.
2. One stab wound situated on the right chest posterior to the axillary fold 5 cm x 2 cm size, gone inside the thorasic cavity through the right 3rd intercostal space and the wound is placed transversely.
3. One stab wound of 5 cm 2 cm size situated on the middle part of the anterior abdominal wall situated 5 cm above the umbellicks and 3 cm right to the medium plan. One loop of the small intestine came out through the wound.
4. One superficial cut wound involving the skin only of the anterior abdominal wall of 6 cm x 1 cm size at the same level of wound no. 3. It is 6 cm left from the midline.”
4. We have no doubt that first among those injuries could in all probabilities have been the result of the attempt to ward off one of the strikes inflicted by the assailants which would possibly have landed in the situs of injury no. 2 or injury no. 3. A scrutiny of the above post-mortem data indicated to us that there were three strikes inflicted on the deceased. All those three could have been inflicted by one assailant or by two assailants or by three assailants, but it is most improbable that four assailants would have inflicted the three strikes with daggers. We say this aspect for the purpose of counter-checking the reliability of the sole item of evidence in this case, namely, the dying declaration made by the deceased to different persons who reached there.
5. PW-1 and PW-2 have stated that deceased told them regarding the names of four persons who were arrayed as the four accused in this case. PW-4, the son of the deceased who furnished the F.I.R. could mention only 2 names and they are the names of the appellants before us. The trial court was, therefore, persuaded to give benefit of doubt to the two other persons and acquitted them.
6. Learned Counsel for the appellants contended that an equally possible room creating doubt regarding the involvement of A-4 (Tileswar) can be found out from the circumstance pertaining to the recovery of daggers made by the investigating officer. It is admitted that daggers were recovered pursuant to the information elicited from A-1 (Babul), A-2 (Satin) and A-3 (Nagen) but not from A-4 (Tileswar). If all the three persons were armed with daggers and A-4 possibly would not have been armed with daggers, it is reasonable to think that among the three persons who inflicted strikes with daggers on the deceased would not have included A-4 (Tileswar). Of course, the dying declaration would convince us that (A-4) Tileswar was also present but to fasten him with the liability under Section 34 of the I.P.C. the statement contained in the dying declaration is too meagre. The possible absence of a dagger with him, dissuades us from confirming the conviction passed on A-4 (Tileswar) because there is an area where there is a reasonable doubt as to the role of A-4 (Tileswar).
7. At the same time, we have no doubt about the involvement of A-1 (Babul) and therefore the conviction and sentence passed on him are only to be confirmed. However, we allow the appeal in respect of 2nd appellant (A-4 – Tileswar) and set aside his conviction and sentence. We acquit him and direct him to be released from jail, unless he is wanted in any other case.
1. Out of four persons arraigned for the offence under Section 302 read with Section 34 of the Indian Penal Code the trial court convicted two persons, who were arrayed as A-1 (Babul) and A-4 (Tileswar), the other two persons who were arrayed as A-2 (Satin) and A-3 (Nagen), were given the benefit of doubt and they were acquitted. The High Court confirmed the conviction and sentence passed on the convicted persons and they filed this appeal by special leave.
2. The case relates to the murder of Anu Ram Kalita, who was an old man of 78 years. He was murdered at 7.30 p.m. on 21.9.1988 in front of his house. The prosecution case is that he was coming from a market and while nearing his house the assailants stabbed him with daggers. Though he could survive for a short period and in the meanwhile he mentioned to those who reached the stop as to what happened. He later succumbed to his injuries.
3. PW-5, who conducted the post-mortem examination has stated that the deceased had the following injuries:
“1. One cut injury on the lateral side of the left elbow 8 cm x 4 cm size involved up to the muscle.
2. One stab wound situated on the right chest posterior to the axillary fold 5 cm x 2 cm size, gone inside the thorasic cavity through the right 3rd intercostal space and the wound is placed transversely.
3. One stab wound of 5 cm 2 cm size situated on the middle part of the anterior abdominal wall situated 5 cm above the umbellicks and 3 cm right to the medium plan. One loop of the small intestine came out through the wound.
4. One superficial cut wound involving the skin only of the anterior abdominal wall of 6 cm x 1 cm size at the same level of wound no. 3. It is 6 cm left from the midline.”
4. We have no doubt that first among those injuries could in all probabilities have been the result of the attempt to ward off one of the strikes inflicted by the assailants which would possibly have landed in the situs of injury no. 2 or injury no. 3. A scrutiny of the above post-mortem data indicated to us that there were three strikes inflicted on the deceased. All those three could have been inflicted by one assailant or by two assailants or by three assailants, but it is most improbable that four assailants would have inflicted the three strikes with daggers. We say this aspect for the purpose of counter-checking the reliability of the sole item of evidence in this case, namely, the dying declaration made by the deceased to different persons who reached there.
5. PW-1 and PW-2 have stated that deceased told them regarding the names of four persons who were arrayed as the four accused in this case. PW-4, the son of the deceased who furnished the F.I.R. could mention only 2 names and they are the names of the appellants before us. The trial court was, therefore, persuaded to give benefit of doubt to the two other persons and acquitted them.
6. Learned Counsel for the appellants contended that an equally possible room creating doubt regarding the involvement of A-4 (Tileswar) can be found out from the circumstance pertaining to the recovery of daggers made by the investigating officer. It is admitted that daggers were recovered pursuant to the information elicited from A-1 (Babul), A-2 (Satin) and A-3 (Nagen) but not from A-4 (Tileswar). If all the three persons were armed with daggers and A-4 possibly would not have been armed with daggers, it is reasonable to think that among the three persons who inflicted strikes with daggers on the deceased would not have included A-4 (Tileswar). Of course, the dying declaration would convince us that (A-4) Tileswar was also present but to fasten him with the liability under Section 34 of the I.P.C. the statement contained in the dying declaration is too meagre. The possible absence of a dagger with him, dissuades us from confirming the conviction passed on A-4 (Tileswar) because there is an area where there is a reasonable doubt as to the role of A-4 (Tileswar).
7. At the same time, we have no doubt about the involvement of A-1 (Babul) and therefore the conviction and sentence passed on him are only to be confirmed. However, we allow the appeal in respect of 2nd appellant (A-4 – Tileswar) and set aside his conviction and sentence. We acquit him and direct him to be released from jail, unless he is wanted in any other case.
