DIBAKER NUNIA & ANR. Vs. THE STATE OF ASSAM

DIBAKER NUNIA & ANR. Vs. THE STATE OF ASSAM 


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
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. On 01.10.1999, at about 10 a.m., PW-1 Amrit Tanti lodged
an F.I.R. at the Ghungoor Police Outpost, stating that on the
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.
2
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 eyewitnesses to be occurrence.
23. There is no ground of false
implication by P.W.2 and P.W. 3. There is
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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 crossexamination 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 accusedappellants, 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.
8
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.
9
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 eyewitnesses 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 case1. 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.
13
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)
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