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2015 Supreme(Gau) 675
IN THE HIGH COURT OF GAUHATI
P. K. SAIKIA AND M. R. PATHAK, JJ.
Sri Mohendra Das – Appellant
Versus
The State of Assam - Respondent
Crl. Appeal No. 81 of 2011
Decided on : 21.08.2015
For the Appellant :Mr. S. Das, Advocate.
For the Respondent: Mr. D.Das, Addl. P.P., Assam.
Headnote:
Criminal Procedure Code,1973 – Section 313 – Indian Panel Code,1860 - Sections 302/201- Appeal Against Conviction – Assailed - Offence of Murder - Appeal is directed against judgment and order case projected by prosecution in FIR and in subsequent trial in short is that on at about pm accused came to house of one and took him to paddy filed in order to bring water delivery pipe from the field - But did not return home that night - Next day in morning daughter of found underwear vest and lying in paddy filed - Matter was then reported to other family members of deceased - In mean time father of accused was also requested to give information about his son who is appellant - In response to such query father of accused replied that accused had gone mad for which he was hospitalized - However such reply could not satisfy family members of victim – Held, Court have found that victim did not have any ill habits including playing of cards or taking of alcohol - There is nothing on record to show that any person had any ill motive towards victim requiring such person to hatch up any conspiracy to extinguish his life - In other words there is absolutely no material on record to show that any person other than accused had any opportunity or occasion to come in contact with deceased during period between his going missing on evening of and discovery of his blood stained clothes at place aforementioned in morning - Such revelation in no uncertain terms demonstrates that last seen theory finds its application to case in hand with its full force which firmly establishes that accused was author of crime in question - Appeal Dismissed
P. K. Saikia, J.
This appeal is directed against the judgment and order dated 03.02.2011, passed by the learned Addl. Sessions Judge, Sonitpur, Tezpur, in Sessions Case No. 151/2006 convicting the appellant, namely, Sri Mohendra Das (herein after referred to as the accused person) of offence u/s 302/201 IPC and sentencing him to suffer imprisonment for life and also to pay a fine of Rs. 5000/- (Rupees Five Thousand) i.d. R.I. for another 6 (six) months for the offence aforesaid.
2. Being aggrieved by and dissatisfied with the aforesaid judgment, the accused person has preferred this appeal citing several infirmities in the judgment under challenge.
3. We have heard Mr. S. Das, learned counsel for the appellant and also heard Mr. D. Das, learned Addl. P.P., for the State.
4. The case, projected by prosecution in the FIR dated 04.08.2005 and in subsequent trial, in short, is that on 03.08.2005 at about 7 pm, accused Mohendra came to the house of one Binanda Singh (since deceased) and took him to the paddy filed in order to bring water delivery pipe from the field. But Binanda did not return home that night. Next day in the morning, daughter of Binanda found underwear, vest and Gamosa of Binanda lying in the paddy filed.
5. The matter was then reported to other family members of the deceased. In the mean time, father of the accused was also requested to give information about his son who is the appellant herein. In response to such query, father of the accused replied that the accused had gone mad for which he was hospitalized. However, such reply could not satisfy the family members of the victim.
6. Not being able to know anything whereabouts of the victim, Sri Bidhu Ch. Singh, the informant and also the brother of the victim, lodged an FIR with O/C, Missamari Police Station. On receipt of such an FIR, O/C, Missamari Police Station registered a case, vide Missamari P.S. Case No. 61/2005, u/s 302/201 IPC and O/C himself took up the investigation.
7. On the same day, the body of the victim was found floating in the nearby river called Belsiri. During the course of investigation, the IO conducted inquest on the dead body, sent the same to hospital for post mortem examination, examined the witnesses, arrested the accused person, did other things needful and on conclusion of investigation, he submitted charge sheet u/s 302/201 IPC against the accused person and forwarded him to the court to stand his trial.
8. The learned Magistrate before whom charge-sheet was so laid, committed the case to the Court of Session since the offence u/s 302 IPC is exclusively triable by Court of Session. The learned Sessions Judge, Sonitpur, Tezpur on receipt of case, on commitment, transferred the same to the file of learned Addl. Sessions Judge, FTC for disposal in accordance with law.
9. Learned Addl. Sessions Judge, FTC, on receipt of the case on transfer and on hearing the learned counsel for the parties, was pleased to frame charges u/s 302/201 IPC against the accused person and charges, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried.
10. During trial, prosecution had examined as many as 12 (twelve) witnesses including the informant, I/O of the case as well as the Doctor who conducted autopsy on the dead body. The statement of the accused person u/s 313 CrPC was also recorded. His plea was of total denial. However, on being required, he declined to adduce any evidence of his own.
11. On conclusion of trial and on hearing arguments, advanced by the learned counsel for the parties, learned Trial Court was pleased to convict the accused of offences u/s 302/201 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in the present appeal.
12. Mr. S. Das, learned counsel for the appellant submits that judgment under challenge cannot be sustained since the prosecution case is basically based on last scene theory and such theory, in the case
