Circumstantial evidence must be established beyond reasonable doubt; absence of eyewitnesses and contradictions in testimonies led to a modification of conviction from murder to culpable homicide not amounting to murder.

JUDGMENT & ORDER :

M. Thakuria, J.

Heard Mr. N. J. Das, learned Amicus Curiae for the appellant and also heard Ms. A. Begum, learned Additional Public Prosecutor for the State of Assam.

2. The present appeal has been preferred from jail against the Judgment and Order dated 19.02.2021, passed by the learned Sessions Judge, Baksa, Mushalpur, in Sessions Case No. 337/2018 under Section 302 of the IPC, whereby the present accused/appellant has been convicted under Section 302 of the IPC and sentenced to rigorous imprisonment for life, along with a fine of Rs. 1,000/-, and, in default, to undergo R.I for another 3 (three) months.

3. The brief facts of this case is that the informant who stays in Guwahati came to know that the accused/appellant [Biren Das] who is his own brother had physically assaulted his mother on 06.06.2018 and coming to know about the same, he came to his own house and saw that his mother sustained grievous injuries on both knees, eyes and forehead and further on 10.06.2018 at about 06.00.PM, the accused again hit his mother on her head with a piece of wood as a result of which she sustained grievous injury on her head, fell down and died instantly.

4. Based on the aforesaid information, a formal FIR was registered, and the police initiated an investigation. P.W-7, the Officer-in-Charge of the police station, took up the investigation himself, visited the place of occurrence, recorded the statements of witnesses, and ensured that a post-mortem examination was conducted. After collecting the post-mortem report and other relevant evidence, he filed a charge sheet under Section 302 of the IPC against the present accused/appellant.

5. After the committal of the case and furnishing a copy to the accused/appellant, the learned Sessions Judge, Baksa, Mushalpur, heard the accused on the consideration of charge and accordingly, framed a charge under Section 302 of the IPC.

6. In order to prove the charge against the accused, the prosecution examined a total of 11 (eleven) witnesses, who were duly cross-examined by the defence. The accused/appellant was also examined under Section 313 Cr.P.C., wherein, he denied the prosecution's case and declined to adduce any evidence. After hearing the argument put forwarded by both the parties, the accused/appellant was convicted under Section 302 of IPC and sentenced to R.I for life, along with a fine of Rs. 1,000/- and in default to undergo R.I for another 3 (three) months.

7. Mr. Das, learned Amicus Curiae for the appellant, has submitted that the prosecution has failed to establish the case against the present accused/appellant beyond all reasonable doubt regarding the charge of murder. He contended that the accused/appellant did not commit the murder of his mother by assaulting her with a piece of wood on her head. Accordingly, he raised the following issues during his argument:

i. Lack of Eyewitnesses: There are no eyewitnesses to the prosecution’s case, and except for P.W-5 (the informant), all other witnesses are hearsay witnesses.

ii. Contradictions in Witness Testimonies: The witnesses made contradictory statements regarding the time of the incident. He submitted that P.W-1, in his re-examination, stated that the incident occurred at 6:00 P.M, whereas the FIR mentions 5:00 P.M. In his examination-in-chief, P.W-5 testified that the incident occurred around 3:30 P.M. when the deceased was sitting on the veranda. Additionally, P.W-5 again mentioned the time of the occurrence as about 6:30 P.M. in his cross evidence. These contradictions regarding the time of the incident raise doubts about the veracity of the prosecution’s case.

iii. Contradictions Regarding the Murder Weapon: There are contradictions regarding the murder weapon. According to some witnesses, the accused showed the murder weapon, but there is no mention as to where from it was recovered. However, the I.O testified that the accused led the police to recover the murder weapon, which was a piece of wood kept in a heap of woo