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2022 Supreme(Gau) 621
IN THE GAUHATI HIGH COURT AT GUWAHATI (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) PRINCIPAL SEAT AT GUWAHATI
N. KOTISWAR SINGH, SUSMITA PHUKAN KHAUND, JJ.
Indira Chetry, W/o Tara Bahadur Chetry - Appellant
Versus
The State of Assam - Respondent
Criminal Appeal No. 141 of 2016
Decided on : 16-09-2022
For the Appellant :Mr. D. Borah, Mr. P.K. Das, Mr. A. Choudhury, Mr. R. Ali, Advocates.
For the Respondents:Ms. S. Jahan, Mr. P. Sundi, Mr. B. Nath, Mr. M.R. Adhikari, Ms. G. Borah, Advocates.
Point of Law : Every jurisdiction to overturn an acquittal, but it must be done only when it contains very substantial and compelling reasons, which in the present case we do not find to be present
Headnote:
Indian Penal Code, 1860 - Section 302 - Criminal Procedure Code, 1973 - Section 164 - Offence of Murder - Charged - acquittal - Appeal against acquittal - Present private respondent Nos.2-6 after an FIR was filed by present appellant to effect that the accused had called his son, namely, Dambar Bahadur Chetry to join them in a picnic at river - However, he did not return home till 6 p.m. and when she asked these accused as to what happened to her son, they said that they do not know anything and accordingly, suspecting that accused had killed her son, said complaint was lodged
Finding of Court :
Court decline to interfere with acquittal of accused, there are certain aspects which have disturbed Court - There is clear evidence on record that the deceased son of appellant was heard conversing over mobile phone with some of his friends who apparently had goaded him to join picnic - Though there is also evidence on record that mobile phone was not recovered or seized by the prosecution, Court fail to understand why prosecution failed to take any lead from mobile conversations which could have been very easily ascertained from Call Data Record (CDR) through concerned service provider - Unfortunately that vital lead does not appear to have been seriously pursued by I.O - Further, it is also equally unfortunate that as many as 4(four) co-villagers who apparently seem to have known the deceased and potential offenders have turned hostile during trial which perhaps poorly reflects on our society that when an unnatural death had occurred, society failed to discharge social obligation at least to render necessary assistance to the criminal justice system.
Result : Appeal as being devoid of merit.
JUDGMENT :
N. Kotiswar Singh, J.
Heard Mr. D. Borah, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam, appearing for the respondent No.1; Mr. P. Sundi, learned counsel appearing for respondent Nos.2 . 4 and Mr. M.R. Adhikari, learned counsel appearing for respondent Nos.5 and 6.
2. The present appeal has been preferred against the judgment of acquittal dated 18.01.2016 of the present respondent Nos.2, 3, 4, 5 and 6, who were charged of committing offence under Section 302 of IPC. The learned Trial Court had acquitted all the accused on the ground that the prosecution has failed to prove the case against them beyond reasonable doubt.
3. Learned counsel for the appellant, however, submits that there are sufficient circumstantial evidences to show that the accused private respondents were indeed involved in the death of the appellant’s son. However, the said evidences have not been properly appreciated by the learned Trial Court.
4. In order to appreciate the above contention, we refer to the background facts and evidences.
5. The criminal case was launched against the present private respondent Nos.2.6 after an FIR was filed by the present appellant to the effect that the accused had called his son, namely, Dambar Bahadur Chetry to join them in a picnic at Sonai Nepali Bharali river. However, he did not return home till 6 p.m. and when she asked these accused as to what happened to her son, they said that they do not know anything and accordingly, suspecting that the accused had killed her son, the said complaint was lodged which was registered as Rangapara P.S. Case No.196/2011 under Section 302/201/34 IPC.
6. On the basis of the said FIR, investigation was launched and after completion of the investigation, the prosecution filed the charge-sheet against the present private respondent Nos.2.6 and accordingly, charges were framed and they were tried before the Court of Additional Sessions Judge No.2, Sonitpur, Tezpur, under Section 302/201 read with Section 34 of the IPC, which read as follows:
“Firstly: That you on, about or before 4.9.2011 at Sonali Nepali River under Rangapara PS, in furtherance of common intention committed murder, intentionally or knowingly, causing the death of Dombor Bahadur Chetry and thereby committed an offence punishable under section 302 read with section 34 of Indian Penal Code, and within cognizance of the Court of Session.
Secondly: That you on, about or before 4.9.2011 at Sonali Nepali River under Rangapara PS, in furtherance of common intention, knowing or having reason to believe that the offence of murder, punishable with death has been committed, caused certain evidence connected with the said offence, namely, the dead body of Dombor Bahadur Chetry to disappear or knowingly gave false information, with intention to screen the offender from legal punishment, and thereby committed an offence punishable under section 201 read with section 34 of Indian Penal Code, and within cognizance of the Court of Session.”
7. In support of the prosecution case, the prosecution examined as many as 11(eleven) witnesses and exhibited a number of documents including the statements of the PW-10 and PW-4 recorded under Section 164 Cr.P.C.
8. Learned Trial Court, however, on considering the evidence on record, both oral and documentary, came to the conclusion that the prosecution has not been able to prove the charges against the accused beyond reasonable doubt and accordingly, acquitted them.
9. The accused had taken the plea of total denial and also did not lead any evidence. Before we examine the judgment acquitting the private respondents, we ourselves have gone through the evidences and sought to find out if there is any evidence which would link the present private respondents with the aforesaid offence.
10. As far as PW-1, namely, Roshal Limbu, a co-villager is concerned, he stated that he knew all the accused persons as well as the deceased. He stated that on 04.09
