Debojit Panika vs The State Of Assam
2022 Latest Caselaw 5128 Gua

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GAHC010084972019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : CRL.A(J)/16/2019

            DEBOJIT PANIKA
            CHARAIDEO SONARI.



            VERSUS

            THE STATE OF ASSAM
            REP. BY PP, ASSAM.



Advocate for the Petitioner   : MR N J DAS, AMICUS CURIAE

Advocate for the Respondent : PP, ASSAM

:: PRESENT ::

                      HON'BLE MR. JUSTICE SUMAN SHYAM
                    HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

           For the Appellant         :             Mr. N.J. Das,
                                                   Amicus Curiae.

           For the Respondent :                    Ms. B. Bhuyan,
                                                   Senior Advocate/
                                                   Addl. Public Prosecutor,
                                                   Assam.
                                                   Mr. J. Das, Advocate.
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          Date of Hearing  :              15.12.2022.
           Date of Judgment :             22.12.2022.


                           JUDGMENT AND ORDER (CAV)
(Parthivjyoti Saikia, J)

Heard Mr. N.J. Das, learned Amicus Curiae appearing for the appellant. Also heard Ms. B. Bhuyan, learned Senior Counsel/Addl. Public Prosecutor, Assam assisted by Ms. M. Chakraborty, learned counsel appearing for respondent.

2. This appeal is preferred against the judgment and order dated 28.09.2018 passed by the Addl. Sessions Judge, Charaideo in Sessions Case No.10(S-C) of 2016 whereby the appellant was convicted under Section 302 and 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life for the offence under Section 302 and 7 years of rigorous imprisonment for Section 201 of the Indian Penal Code and to pay fines, with default stipulations.

3. The prosecution in a nutshell is like this- Smti. Sumitra Panika had adopted a minor girl called Soru Kharia. Smti. Sumitra Panika is the mother of the present appellant. On the other hand, Soru Kharia is the niece of the complainant Babu Paik.

4. At the relevant time of occurrence, Sumitra Panika had gone out of her house for treatment of her illness and Soru Kharia disappeared. While Sumitra Panika had gone out of her house, the custody of Soru Kharia was given to the appellant.

5. The complainant has alleged that even after 22 days of Page No.# 3/10

disappearance of Soru Kharia, the appellant Debajit Panika did not search for her nor he informed her family.

6. During investigation, the witness called Kishor Mall (PW-4) made disclosure statement before police. He stated that the girl burnt herself and the present appellant had disposed of her dead body by throwing the same into Teok river. According to Kishor Mall, he did not disclose the fact before as the appellant had threatened him of dire consequences.

7. Finally, on conclusion of investigation, police filed the charge sheet against the appellant under Section 302 and 201 of the IPC.

8. During the trial of the case, the prosecution side has examined 9 witnesses including the police investigating officer. On the basis of the evidence on record, the trial court arrived at the impugned finding.

9. We have carefully gone through the prosecution evidence.

10. The first witness to be examined by prosecution is Monoj Gorh( PW-

1). He and the appellant reside in the same village. He knew Soru Kharia also. One day, in the month of June, 2015, police had come to his house. PW-1 has stated that in front of police, the appellant accused him and another person named Lakhiram to be responsible for disappearance of Soru Kharia. PW-1 has further disclosed that prior to the occurrence, the appellant asked for Rs.2000/- in cash from him and he refused to pay the money. According to PW-1, it might be the reason for bringing a false allegation against him. PW-1 has further disclosed that at one point of time, the appellant had committed murder of a person called Bhairab Mall.

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11. During cross-examination, PW-1 has stated that Soru Kharia was the daughter of the maternal uncle of the appellant and she has been residing in the house of the appellant because her parents died while she was a baby. According to PW-1, at the relevant time of occurrence, Soru Kharia was aged about 10 years.

12. The second prosecution witness is Babu Paik (PW-2). He is the complainant. He has stated that 22 days prior to filing of the FIR, the occurrence took place. According to PW-2, Soru Kharia was about 2 years old when Sumitra Panika had adopted her. PW-2 has stated that he came to know about the disappearance of Soru Kharia after the neighbours informed him that she was not seen in the house. When PW-2 asked the appellant about the girl, he reportedly told that the girl had left the house.

13. PW-2 has stated in his evidence that he developed suspicion after he saw a half burnt green apparel in the courtyard of the appellant. PW- 2 had questioned the appellant about the said fact but no answer was given by the appellant. PW-2 also stated that the appellant had earlier committed a murder in the village.

14. PW-2 has disclosed in his evidence that the appellant had confessed before the police that he had set fire to Soru Kharia as she had committed theft of Rs.40/-. The appellant allegedly confessed before police that he had kept the dead body of Soru Kharia in a sack for two days and on the third night, the appellant along with another person, threw the sack having the dead body into the Teok River.

15. PW-2 has claimed in his evidence that the appellant had told him Page No.# 5/10

that he had thrown away the dead body of the girl into the river Teok.

16. During cross-examination, PW-2 has stated that he told police that he had seen a half burnt wearing apparel of Soru Kharia but police did not recover the same.

17. The third prosecution witness is Lakhiram Karmakar (PW-3). He has stated that he had heard that the PW-4 Kishor Mall and the appellant had thrown the dead body of Soru Kharia into the river.

18. In his cross-examination, PW-3 has stated that the appellant asked for money from PW-1. According to PW-3, he was with PW-1 at that time. PW-3 has further stated that the appellant and the PW-4 Kishor Mall were not maintaining good relation.

19. The PW-4 Kishor Mall has stated in his evidence that one night the appellant had come to his house and told this witness that Soru Kharia had died of burning and he wanted to dispose of her dead body. PW-4 has stated that the appellant had asked for his company while he would be going to dispose of the dead body of Soru Kharia. PW-4 has stated that initially he expressed his reluctance, but when the appellant threatened him with dire consequences by showing him a dagger, then he had to accompany the appellant. PW-4 has stated that the dead body was carried in a bicycle and the appellant threw the dead body into river Teok. The appellant had warned him not to disclose that fact to anyone. PW-4 has proved his statement under Section 164 CrPC as Ext.2.

20. PW-4 has stated in his cross-examination that for the next two weeks, he did not tell anyone about those facts nor did he witness the incident Page No.# 6/10

of burning. PW-4 has further revealed that at one point of time, the appellant had murdered his uncle and subsequently got acquitted from that case. According to PW-4, his family does not have good relationship with the family of the appellant.

21. The fifth prosecution witness is Sohodeb Pike (PW-5). He is a hearsay witness. He has stated he had heard that the appellant had committed the murder of the girl.

22. The sixth prosecution witness is Boloram Pike (PW-6). He has stated in his evidence that Soru Kharia was missing for 20 days and her dead body was thrown into flood water.

23. The seventh prosecution witness is Raju Paik (PW-7). He is an uncle of Soru Kharia. He has stated that at the relevant time of occurrence, while Sumitra Panika was in hospital, he found burnt clothes in the house of the appellant. Raju Paik has stated that the appellant had confessed that he had killed Soru Kharia and threw her dead body into the river.

24. In his cross-examination, PW-7 has stated that he never told police that he discovered burnt clothes in the house of the appellant.

25. The eighth prosecution witness is Prodip Tanti (PW-8). He has stated in his evidence that in the year 2016, the PW-7 Raju Paik took him to the house of the appellant by saying that Soru Kharia had gone missing. PW- 8 has quoted PW-7 as saying to him that Soru Kharia was kept in a sack and the sack was thrown into the river.

26. The ninth prosecution witness is the police investigating officer (PW-

9). The appellant told him that when he had committed murder of Soru Page No.# 7/10

Kharia, PW-1 and PW-3 were with him, who were subsequently made witnesses in this case. According to PW-9, the appellant had confessed before him that he had killed Soru Kharia and threw the dead body into river Teok.

27. In criminal law the discovery of the dead body of the victim bearing physical evidence of violence, is never considered as the only mode of proving the corpus delicti i.e. 'homicidal death' in murder. When the dead body of the victim in a murder is not found, other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution. A blind adherence to the old "body" doctrine would open flood gates for many murderers to escape with impunity simply because they were clever enough to destroy the body of their victim. Where the fact of corpus delicti is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death.

28. At this stage a decision of the Supreme Court delivered in Sanjay Rajak v. State of Bihar, (2019) 12 SCC 552, is relevant. The factual matrix of the case is like this------

The victim, was a school-going child aged about 5-6 years. According to the allegations, he is said to have been kidnapped from the school. The appellant and the co-accused were last seen together along with the victim. In their confessional statement both the accuseds disclosed that after kidnapping the child they had killed him and buried the corpse in the bed of River Saryu at Chhapra. The police did not make Page No.# 8/10

any effort to recover the body.

29. Paragraphs 9 and 10 of Sanjay Rajak (supra) are quoted as under: -

"9. It is not an invariable rule of criminal jurisprudence that the failure of the police to recover the corpus delicti will render the prosecution case doubtful entitling the accused to acquittal on benefit of doubt. It is only one of the relevant factors to be considered along with all other attendant facts and circumstances to arrive at a finding based on reasonability and probability based on normal human prudence and behaviour. In the facts and circumstances of the present case, the failure of the police to recover the dead body is not much of consequence in the absence of any explanation by the appellant both with regard to the victim last being seen with him coupled with the recovery from his house of the belongings of the deceased. Rama Nand v. State of H.P. [Rama Nand v. State of H.P., (1981) 1 SCC 511 : 1981 SCC (Cri) 197] , was a case of circumstantial evidence where the corpus delicti was not found. This Court upholding the conviction observed: (SCC pp. 522-23, para 28) "28. ... But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the dead body is impossible. A blind adherence to this old "body" doctrine would open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Sir Hale's enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eyewitness, or by circumstantial evidence, or by both. But where the fact of corpus delicti i.e. "homicidal death" is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section 3 of the Evidence Act, a fact is said to be "proved", if the court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned." "10.Sevaka Perumal v. State of T.N. [Sevaka Perumal v. State of T.N., (1991) 3 SCC 471 : 1991 SCC (Cri) 724] , was also a case where the corpus delicti was not found Page No.# 9/10

yet conviction was upheld observing: (SCC pp. 476-77, para 5) "5. ... In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti. The fact of death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. Take for instance that a murder was committed and the dead body was thrown into flowing tidal river or stream or burnt out. It is unlikely that the dead body may be recovered. If recovery of the dead body, therefore, is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead body is destroyed, etc. and would afford a complete immunity to the guilty from being punished and would escape even when the offence of murder is proved. What, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum of death was committed and it must be proved by direct or circumstantial evidence, although the dead body may not be traced."

30. Reverting to the case in hand, the prosecution evidence shows that the PW-4 Kishor Mall is the sterling witness in this case. He was a young boy at the relevant time of the occurrence. His evidence is consistent with his statement recorded under Sections 161 and 164 CrPC. There are no discrepancies and contradictions in the evidence of PW-4. Therefore, his evidence inspired confidence. He is a trustworthy witness.

31. There exists unchallenged evidence in this case that Soru Kharia was the adopted daughter of Sumitra Panika and she was living with her till Sumitra had gone out of her house for medical treatment. The appellant also resided with his mother Sumitra Panika and Soru Kharia. Suddenly, Soru Kharia disappeared after Sumitra Panika had left her house for medical treatment. The PW-4 Kishor Mall has stated in his evidence that the appellant had killed Soru Kharia by burning her and thereafter had thrown her dead body into river Teok. The statements of Kishor Mall under Sections 161 as well as 164 CrPC are consistent with his evidence. There is nothing in his cross-examination to disbelieve him.

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32. The disappearance of Soru Kharia is proved beyond all reasonable doubt. The failure of the appellant to offer a plausible explanation constitutes an additional link in the chain of circumstances against him. The facts so established in this case are consistent with the hypothesis of guilt of the appellant and they are not explainable on any other hypothesis except that the appellant is guilty of murder of Soru Kharia.

33. Thus, we are of the opinion that the learned trial court has properly appreciated the prosecution evidence and arrived at a correct finding.

34. We find that this appeal is devoid of merit and therefore, stands dismissed accordingly.

35. Before parting with the record, we record our appreciation for the learned Amicus Curiae for assisting this Court. Registry is directed to pay the remuneration allowed by the rules to the learned Amicus Curiae.

Send back the LCR.

                                      JUDGE               JUDGE




Comparing Assistant