Dibaker Nunia vs The State Of Assam

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 962 OF 2011

DIBAKER NUNIA & ANR. .....Appellant(s)

Vs.

THE STATE OF ASSAM ....Respondent(s)

J U D G M E N T

DINESH MAHESHWARI,J.

1. This appeal is directed against the judgment and order

dated 17.09.2009, as passed by the Gauhati High Court in Criminal

Appeal No. 79 of 2006, whereby the High Court has dismissed the

appeal filed by the present appellants and has affirmed the

judgment and order dated 16.02.2006, as passed by the Session

Court, Cachar, Silchar, Assam in Sessions Case No. 37 of 2003

convicting the appellants of offence under Sections 302/34 Indian

Penal Code, 1860 (‘IPC’) and awarding the sentence of rigorous

imprisonment for life and fine of Rs.1,000/- each with default

stipulations.

2. Briefly put, the relevant background aspects of the

matter are as follows:

2.1.

Signature Not Verified On 01.10.1999, at about 10 a.m., PW-1 Amrit Tanti lodged Digitally signed by SNEHA DAS Date: 2022.09.02 an F.I.R. at the Ghungoor Police Outpost, stating that on the 10:34:45 IST Reason:

previous day, at about 12:30 midnight, while he was returning home

1 from Sonai after an election campaign, he found a man lying in

front of Congress Party's election office near the shop of PW-5

Joynarayan. According to the informant, from the light of an

electric lamp, he could identify the man lying on the ground to be

his younger brother Amar Tanti. He went home and came to know from

his parents that the two accused persons Dibakar and Babul (the

appellants) had assaulted the deceased in the evening hours. Hence,

PW-1 Amrit Tati 1odged the written FIR whereupon, GD Entry No. 604

dated 01.10.1999 of Ghungoor Police Outpost was recorded and the

FIR was forwarded to the Officer-in-Charge of Silchar Police

Station. Accordingly, Silchar P.S. Case No. 1362 of 1999 under

Section 302/34 IPC was registered.

2.2. The case was investigated mainly by PW-10 Dipen Paul.

Inquest was held on the dead body which was sent for postmortem

examination. The statements of various persons acquainted with the

incident were also recorded. At the conclusion of investigation,

charge-sheet was submitted against the accused-appellants.

2.3. In view of the nature of offence, the case was committed

to the Court of Sessions. In relation to the charge of offence

under Section 302/34 IPC, the appellants pleaded not guilty and

claimed trial. In the course of trial, ten witnesses were examined

on behalf of the prosecution. The appellants did not examine any

witness in defence. However, the statements of appellants were

recorded under Section 313 of the Code of Criminal Procedure, 1973.

At the conclusion of trial, the accused-appellants were convicted

and sentenced as aforesaid.

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3. The prosecution case mainly rested on the testimony of

PW-2 Sukhram, father of the deceased and PW-3 Menoka Tati, mother

of the deceased, both of whom were said to be the eye-witnesses to

the occurrence.

3.1. PW-2 Sukhram stated that on the date of occurrence, he

was returning home at about 8 p.m. along with his wife from

Silchar. At Shilcoorie market, he heard cries of his son Amar and

rushed towards the place of occurrence. He saw profuse bleeding

from the head of his son. He found accused Babul over-powering his

son and the other accused Dibakar assaulting him with a dao.

Seeing blood from the injuries of his son, this witness fell

unconscious and he regained consciousness in the night. The

witness stated that he could identify both the accused persons in

the street light. He reported the incident to his son (PW-1) in the

night of occurrence.

In cross-examination, this witness PW-2 stated that

though some persons came to the place of occurrence, they left

immediately. He stated that though Silchar Medical College

Hospital was at a distance of about 5 k.m. from the place of

occurrence, he could not remove his son there as he was

unconscious.

3.2. PW-3 Menoka Tati is the wife of PW-2 and step-mother of

the deceased. She stated that at the time of occurrence, she was

coming home from Silchar town with her husband. While they arrived

Shilcoorie market at about 7/8 p.m., they heard the deceased crying

3 for help. Along with her husband, she went to the place of

occurrence and saw the accused Babul holding the hands of the

deceased and the other accused Dibakar assaulting him by means of a

dao. Her husband tried to resist, but the accused persons did not

pay any heed to it. She further stated that she witnessed the

incident from a distance of about 16 feet and could properly

identify the accused persons in the electric lights. This witness

also stated that seeing the blood from the body of the deceased,

her husband fell unconscious and she took her husband home. This

witness also stated that on the night of occurrence itself, she

reported the incident to PW-1 at about 3 a.m. when PW-1 returned

home with police.

This witness stated in the cross-examination that she saw the

quarrel between the accused persons and the deceased. She denied

the defence suggestion that the deceased always remained

intoxicated and used to keep himself involved in quarrel with other

persons. She stated that she saw about 100/150 persons at the

place of occurrence in the electric light.

4. So far the injuries on the person of the deceased are

concerned, they were established by the testimony of PW-7 Dr.

Homeswar Sharma who testified to the postmortem report, wherein the

injuries were stated in the following manner:

“Injuries:

1) Incised wound on the neck in the upper part placed obliquely measuring 11 x 6 x 6 cms cutting all the structures from the skin upto the second cervical vertebrae which is completely cut alongwith the blood vessels on the right side (see diagram).

4 2) Incised wound- two numbers- placed parallel to each other and 0.5 cm apart over the left temple measuring 5 x .5 x 1 cm each.

3) Punctured wound of semi-lunar shape measuring 4 x .5 x thoracic cavity deep over the left side of the thorax at inferior angle of the scapula.

4) Incised wound 4 cm long skin deep only over the anterior surface of the right shoulder.

5) Two incised wounds placed 1 cm apart measuring 5 x .5 x 1.5 cm over the left temporal region cutting upto the outer table of temporal region cutting upto the out table of temporal bone and the wounds placed obliquely. Larynx found incised and exposing the vocal cord under injury No.1.

Rest of the organs in the body were healthy and pale.”

5. The other alleged private witnesses did not support the

prosecution case but, the Trial Court proceeded to rely upon the

statements of PW-2 and PW-3 while, inter alia, observing as under:

“22. ……There is clear evidence of P.W .2 and P.W .3 that there was profuse bleeding from the body of the deceased, at the sight of which P.W .2 fell down on the ground being unconscious. There are many people who cannot see nascent human blood and gets fainted. This situation happened in case of P.W.2. Some how he was removed home and he regained his senses at the dead of night and he reported the incident to P.W.1. Upon careful perusal of the evidence of P.W.2 and P.W.3 I find no ground to disbelieve their testimony. Their evidence has been properly accepted by the defence through cross-examination to be that of eye-witnesses. Hence, the clear finding is that P.W.2 and P.W.3 were the actual eye- witnesses to be occurrence.

23. There is no ground of false implication by P.W.2 and P.W. 3. There is

5 no defence case that the two witnesses had any inimical relationship with the accused persons. There was no previous grudge with the accused persons. They had no axe to grind due to such previous grudge. There is no suggestion in this respect from the defence of P.W.2 and P.W. 3. The deceased was their own son, though P.W. 3 was the step mother. They would not go to implicate the innocent persons by exonerating the real culprits. Thus, there is no plea of giving false evidence by P.W. 2 and P.W.3, and I find that being actual eye-witnesses to the occurrence the parents of the deceased came forward to rope in the real culprits and the assailants of their son.

24. It is a fact that there were many people in the market and shop keepers were there when the incident took place at about 8 p.m. in the light of electricity. It has been submitted that none of those perons came to support the prosecution case.

Through such a submission the defence has admitted that there was sufficient light at the place of occurrence to clearly identify the accused persons. Hence, identity of the accused persons through P.W. 2 and P.W. 3 is not a matter of doubt or dispute.

6. The Trial Court rendered the finding against the

appellants in the following manner:

“31. From what has been discussed above, I find that on the evening of 30.09. 99 the two accused persons Dibakar and Babul, attacked the deceased at Shilcoorie bazar under Silchar P.S. with deadly weapon. It was witnessed by the parents of the deceased who were P.W. 2 and P.W. 3. The deceased died of these injuries soon after the incident. The accused persons have been well identified by prosecution witnesses. The accused persons in furtherance of their common intention, due to previous dispute, attacked the deceased with deadly weapon over the vital parts. So, they clearly

6 intended to cause the death of the deceased. One of the accused caught hold of the deceased so that there was no scope for the deceased to escape from the place of occurrence, and the other accused attacked him mercilessly. The defence failed to discard the prosecution witnesses - particularly P.W. 2 and P.W .3 in any manner. So, this is a clear case of murder of the deceased by the accused persons.

32. However, I find that as per evidence of P.W. 2 and P.W.3, at first there was a quarrel between the deceased and the accused persons. But the deceased was totally unarmed and the accused persons were armed with deadly weapons. There is no evidence that the accused persons were first attacked by the deceased. They were the accused persons who without any ground attacked the deceased. There was no provocation from the deceased at the place of occurrence. Hence, I find that this is a clear case of murder punishable U/S 302 I.P.C. The defence failed to bring the case to any of the exceptions U/S 300 I.P.C. There is no excuse or exception for the accused persons in committing the crime. They attacked the deceased on the public road with deadly weapons over the vital parts of the body. As such, they intended to cause the death of the deceased and caused the same.

7. Before the High Court, the reliability of PW-2 and PW-3

was seriously put to question. The High Court, however, rejected

the contentions urged on behalf of the appellants in the following

manner:

“16. It is correct, as contended by the learned counsel for the appellants, that PW.2 in his statement before the police had stated that after the incident he along with his wife (P.W.3) had gone home and had taken their meal, whereafter, they had gone to bed. Such conduct, in the normal course, would have been unreasonable and unacceptable, particularly when the son of P.W 2, and P.W.3 was facing assault by the

7 two accused-appellants who were armed with 'dao'. However, the aforesaid aspect of the matter is capable of - being understood by the defence version offered in the cross- examination of P.W.3 which is to the effect that the deceased used to be in a state of intoxication and he had been involved earlier in several quarrels with other people. If that be so, the exit/ departure of P.W.2 and P.W.3 after the quarrel and even after seeing the assault is fully understandable. That apart, it is in the evidence of P.W.3 that on seeing the deceased smeared in blood P.W.2 had fallen unconscious, whereafter, he was taken home and had regained his senses while at home. The departure of P.W. 2 and P.W. 3 from the place of occurrence and their going to sleep can also be explained and reasonably understood on the aforesaid testimony of P.W.3. It is, therefore, our considered view that notwithstanding what has been contended on behalf of the accused- appellants, the evidence of P.W.2 and P.W.3, on the most material part of the incident is acceptable and we are inclined to act on the basis of the testimony of the two eye witnesses.”

8. Learned counsel for the appellants has strenuously argued

that the Sessions Court as also the High Court in this matter have

proceeded on irrelevant considerations and have ignored significant

shortcomings in the prosecution case. According to the learned

counsel, conviction of the appellants is essentially based on the

testimony of PW-2 and PW-3 but their statements not only carry

serious contradictions but also carry inherent improbabilities; and

while taking their version on face value, it is against the natural

and normal conduct for any person to go home after having seen his

son in pool of blood on being assaulted by two persons and then, to

take the meal and go to sleep.

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9. Learned counsel has contended that this unnatural conduct

of the parents of the deceased has been ignored by the learned

Sessions Judge altogether. Further, the High Court has provided

justification to this unnatural conduct with reference to the fact

that the deceased had allegedly been involved in quarrels with

other people. Learned counsel would contend that even if it be

assumed that the deceased was involved in quarrels, his parents

would not be so unconcerned about their son when he had been

assaulted by two persons and was badly injured with blood oozing

from his head.

10. Learned counsel would further argue that when testimony

of PW-2 and PW-3 is removed out of consideration for being of

entirely unnatural conduct, the fact of the matter remains that

none of the independent witnesses have supported the prosecution

story. In this view of the matter, the appellants deserves to be

acquitted. Learned counsel has also argued that the incident took

place at about 7-8 p.m. on 30.09.1999 whereas the FIR was lodged

only on 10 a.m. on 01.09.1999 by PW-1, brother of the deceased.

This inordinate delay in FIR had remained unexplained and the

prosecution case could not have been believed on such an FIR.

11. The learned counsel for the State has duly supported the

judgment and order impugned and has submitted that when the

totality of circumstances are taken into account, the statements of

PW-2 and PW-3 cannot be said to be totally unreliable and the

concurrent findings based on the said statements call for no

interference.

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12. We have heard learned counsel for the parties and have

examined the material placed on record.

13. In this case, both the Trial Court and the High Court

have agreed in their appreciation of evidence and have arrived at

concurrent findings of fact; and ordinarily, in an appeal by

special leave against concurrent findings of fact, this Court

would not enter into reappreciation of evidence. However, if the

assessment of the Trial Court and the High Court is vitiated by

any error of law or procedure or misreading of evidence or any

disregard to the norms of judicial process leading to serious

prejudice or injustice, this Court may consider interference in

an appropriate case so as to prevent miscarriage of justice.

14. After having examined the present matter in its totality,

we are impelled to consider interference herein because the

findings as returned by the Trial Court and the High Court

apparently suffer from an entirely erroneous approach leading to

miscarriage of justice.

15. As noticed, the findings in question are based essentially

on the testimony of PW-2 and PW-3, who were alleged to be the eye-

witnesses to the incident. No other independent witness has

testified in support of the prosecution case. The High Court took

note of the fact that PW-2 in his statement before police had

stated that after the incident, he along with his wife PW-3 went

home, took their meal and slept. The High Court had rightly

observed that such a conduct in the normal course, would have been

unreasonable and unacceptable, particularly when the son of these

witnesses was facing assault by two persons. However, the High

10 Court took into account the facts emerging on record that the

deceased had been involved in several quarrels with other people

to the knowledge of his parents. According to the High Court,

such background of the deceased would explain the exist/departure

of PW-2 and PW-3 from the place of occurrence and also of their

going to sleep. With respect, we are unable to accept this

approach.

16. As per the assertion of PW-2 and PW-3, they had seen

their son being assaulted by two persons with weapon. PW-2 had

allegedly fallen unconscious after seeing the blood oozing from

the body of his son. In that situation and scenario, it is

difficult to appreciate that these witnesses would go home, take

meal and go to bed without bothering about the welfare of their

injured son. This aspect is coupled with the fact that they had

allegedly narrated the incident to PW-1 only when he reached home

after having seen the dead body of his brother. Then, the FIR was

lodged next day morning at 10 a.m.

17. Taking all the circumstances into account, in our view,

testimony of PW-2 and PW-3 could not have been accepted as that of

eye-witnesses to the incident from any standpoint. Moreover, PW-4

Biren Patra, PW-5 Joynarayan Kalewar, PW-8 Dilip Kheira and PW-9

Sudama Bari, who were projected by the prosecution as independent

witnesses, did not support the prosecution case at all.

18. Aforesaid being the position, the appellants, even if

named in the FIR, could not have been convicted in this case.

19. It remains trite that in such a criminal case, the

prosecution is expected to prove its case and to substantiate the

11 charge beyond reasonable doubt. A reasonable doubt is not a mere

possible doubt but a fair doubt based upon reasons and common

sense. It must grow out of the evidence in the case 1. When a

reasonable doubt arises in a matter, benefit of doubt must be

given to the accused. In the present case, the doubts reasonably

arising in the matter had been brushed aside by the High Court on

the logic that itself remains unacceptable. The approach of the

Trial Court in accepting the testimony of PW-2 and PW-3 with the

observations that there was no reason for them to implicate anyone

except the real culprit, again, remain that of assumptions which

are not compatible with the given set of facts and circumstances.

20. It is true that the deceased had been brutally assaulted

and had received multiple injuries on vital parts but, on the

evidence as adduced by the prosecution, it is difficult to

conclude beyond reasonable doubt that the appellants alone were

the authors of such injuries. In view of above, we find it to be a

fit case for interference in the concurrent findings of the Trial

Court and High Court.

21. Accordingly and in view of the above, this appeal

succeeds and is allowed.

22. The impugned judgment and order dated 17.09.2009, as

passed by the Guahati High Court in Criminal Appeal No. 79 of 2006

as also the judgment and order dated 16.02.2006, as passed by the

Sessions Judge, Cachar at Silchar in Sessions Case No. 37 of 2003

1 Vide: Bhaskar Ramappa Madar & Ors. v. State of Karnataka: (2009) Cri. L.J. 2422 (SC) (at pg. 2431)

12 are set aside; and the appellants are acquitted as such. If the

appellants are in custody, they be released immediately.

...................J. (DINESH MAHESHWARI)

....................J. (BELA M. TRIVEDI)

New Delhi;

August 30, 2022.

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ITEM NO.108 COURT NO.11 SECTION II

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No. 962/2011

DIBAKER NUNIA & ANR. Appellant(s)

VERSUS

THE STATE OF ASSAM Respondent(s)

Date : 30-08-2022 This appeal was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MS. JUSTICE BELA M. TRIVEDI

For Appellant(s) Mr. Varinder Kumar Sharma, AOR Mr. Parul Sharma, Adv.

Mr. Shantanu Sharma, Adv.

For Respondent(s) Mr. Debojit Borkakati, AOR

UPON hearing the counsel the Court made the following O R D E R

The Appeal is allowed in terms of signed reportable judgment.

The impugned judgment and order dated 17.09.2009, as

passed by the Guahati High Court in Criminal Appeal No. 79 of 2006

as also the judgment and order dated 16.02.2006, as passed by the

Sessions Judge, Cachar at Silchar in Sessions Case No. 37 of 2003

are set aside; and the appellants are acquitted as such. If the

appellants are in custody, they be released immediately.

All pending applications stand disposed of.

(SNEHA DAS) (BEENA JOLLY) SENIOR PERSONAL ASSISTANT COURT MASTER (NSH)

(Signed reportable judgment is placed in the file)

14 ITEM NO.108 COURT NO.11 SECTION II

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No. 962/2011

DIBAKER NUNIA & ANR. Appellant(s)

VERSUS

THE STATE OF ASSAM Respondent(s)

Date : 30-08-2022 This appeal was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MS. JUSTICE BELA M. TRIVEDI

For Appellant(s) Mr. Varinder Kumar Sharma, AOR Mr. Parul Sharma, Adv.

Mr. Shantanu Sharma, Adv.

For Respondent(s) Mr. Debojit Borkakati, AOR

UPON hearing the counsel the Court made the following O R D E R

The appeal is allowed.

The impugned judgment and order dated 17.09.2009, as

passed by the Guahati High Court in Criminal Appeal No. 79 of 2006

as also the judgment and order dated 16.02.2006, as passed by the

Sessions Judge, Cachar at Silchar in Sessions Case No. 37 of 2003

are set aside; and the appellants are acquitted as such. If the

appellants are in custody, they be released immediately.

(NEETA SAPRA) (BEENA JOLLY) COURT MASTER (SH) COURT MASTER (NSH)

15