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2002 DIGILAW 133 (GAU)

Mintu Hazarika v. State of Assam

2002-03-21

AMITAVA ROY, J.N.SARMA

body2002
J.N. SARMA, J.— This appeal has been filed against the judgment dated 30.6.2000 passed by the learned Additional Sessions Judge, Nagaon in Session Case No. 132(N)/96. By the impugned judgment the learned judge convicted the appellant Shri Mintu Hazarika under Section 302 read with Section 34 IPC and awarded rigorous imprisonment for life with a fine of Rs.1,000/- in default of fine, to suffer R.I. for one year. 2. The prosecution story in brief is that on 7.7.96 a report was lodged before the Officer-in-Charge of Kampur Police Station to the effect that at about 7 p.m. on 6.7.96 three persons namely - Uttam Hazarika, Mintu Hazarika and Prabhat Hazarika carrying small dao, mit in their hands came to the residence of the informant and called their son Kama Bania. The informant told that Kama Bania was not at home. About that time, Uttam went inside his house and he met Kama Bania straightaway. Then his brother Mintu Hazarika stabbed him in the waist from behind with the mit. Thereafter he aimed a dao blow at the second son of the informant Ganesh Bania in order to cut him but Ganesh caught hold of the dao. Thereafter the two of them ran away. It was further stated that the accused persons left behind the motor cycle, one bicycle one dao and the sheath of a mit at the place of occurrence. The person injured that the Kama was taken to Nagaon hospital and from there he was shifted to the Guwahati Medical College Hospital where he died on 10.8.96 after about one month. The police arrested the accused persons and they were chargesheeted before the trial Court. It may be stated herein that there was a cross case and that cross case was on the information lodged by accused Uttam Hazarika. It was stated that he was severely assaulted by the deceased and that cross case is Kampur P.S. Case No. 45/96 and that also finds place in the evidence of Investigating Officer PW-6 that Uttam Hazarika filed an ejahar, DW-1 Dr Ramesh Hazarika stated that on 7.7.96 he examined Uttam Hazarika. He was brought to him by the Police Constable and examining him he found the following injuries on the person:- "l) One cut injury with sharp weapon on his forehead of size 1 ½” x 1/4" x 1/4" approx, caused by some sharp weapon. He was brought to him by the Police Constable and examining him he found the following injuries on the person:- "l) One cut injury with sharp weapon on his forehead of size 1 ½” x 1/4" x 1/4" approx, caused by some sharp weapon. 2) One haematoma on the left loin of size 21/2: x 21/2" approx. caused by blunt object." And on this cross case there was Sessions Case No. 32(N) of 1997 but the accused persons were acquitted by the Court. Be that as it may, we give this backdrop as this aspect of cross case has some bearing in the decision of this particular case. The following witnesses were examined PW-1 Dharmeswar Bania. He is the father of the deceased Kama. He claims to be an eyewitness. PW-2 is Ganesh Bania brother of the deceased. PW-3 Renu Bania, she is the wife of the deceased. She also claims to be an eyewitness. PW-4 is Tulen Das. He is a neighbour of PW-1. PW-5 is Dr. Kanak Chandra Das who conducted the post-mortem examination and he found the following injuries:- " 1) One stitched wound present on the anterior abdominal wall (right paramedian) of size 17cm. long and closed by 15 nos. of black stitched. The margins of the wound are covered by puss and unhealthy granulation tissue (surgically made). 2) One punctured wound with a drainage tube present on the right side of the abdomen of size 2cm x 2cm x abdominal cavity deep situated on 8 cms. right from midline and 24 cms. below the right nipple (surgically made). 3) Bedsorg present on the back of the waist of size 6cm x 4cm x muscle deep. 4) One punctured wound present on the back of the abdomen of size 4cm x 2cm x abdominal cavity deep situated on right from mid-vertebral line and 4cm above the sacro-vertebral joint. Wound margins are covered by puss and unhealthy granulation tissues (stab wound). Tract of the wound is first perforate the posterior abdominal wall then peritonium and thenlarge intestine. Direction from back to front, below upwards and from left to right. Wound margins are covered by puss and unhealthy granulation tissues (stab wound). Tract of the wound is first perforate the posterior abdominal wall then peritonium and thenlarge intestine. Direction from back to front, below upwards and from left to right. Opinion: Death was due to septic peretonities resulting from stab injury sustained on the back of the abdomen which was antemortem and caused by projecting weapon and was homicidal in nature." So, from this post-mortem report, it is seen that there was only one stab injury that is injury No. 4 as quoted above. PW-6 is the Investigating Officer. Thereafter, the accused was examined under Section 313 Cr.P.C. and the two accused persons i.e. Uttam and Prabhat were acquitted but appellant Mintu was convicted as indicated above. In giving conviction to the accused person, the learned Judge believed the witness Nos. 1, 2 and 3 and as such the conviction was given. Hence this appeal. 3. We have heard Mr D.K. Saikia, learned counsel assisting by Mrs S. Saikia for the appellant and Mr G. Choudhury, learned P.P. 4. Mr Saikia mainly urges the following grounds (1) That the admitted position in this case is that one of the accused i.e. Uttam Hazarika was injured and the injuries on Uttam Hazarika were in visible part of his body but those injuries were not explained by the witnesses of the prosecution and as that was not done it must be held that the prosecution did not come to the Court with clean hands and did not disclose the correct story and suppressed material things and as such benefit of it must go to the accused. (2) the place of occurrence was not the courtyard of the deceased Kama but it is on the road as is evident from the Ex-Uuga, the sketch map prepared by the Investigating Officer and as was deposed by the Investigating Officer. Shri Saikia further submits that though from the place, dao and khurpi were recovered, it was not established that this dao and khurpi belonged to the accused persons. And it was further admitted by the Investigating Officer that there was no blood mark on the dao and khurpi. Shri Saikia further submits that though from the place, dao and khurpi were recovered, it was not established that this dao and khurpi belonged to the accused persons. And it was further admitted by the Investigating Officer that there was no blood mark on the dao and khurpi. (3) Even assuming that Mintu Hazarika, the present accused, gave the stab blow, that was because he found that his elder brother Uttam Hazarika was attacked and evidently there was cut injury on the vital part of the body i.e. on skull forhead and it was under such grave provocation and to save the life of the elder brother only one stab injury was made and that also from behind at the back of the deceased, and not on vital part of body and as such it cannot be a case under Section 302 IPC as he had no intention to cause death, nor he inflicted the injury knowing well that injury shall be sufficient to cause death in the normal course. As a matter of fact the deceased did not die immediately, but died after about one month. Whether this death was from the injuries or from failure to get proper medical treatment, is also doubtful and that benefit also must go to the accused. Regarding first submission that the injuries, on the accused was hot explained and as such fatal to prosecution case. Shri Saikia, relied on a number of decisions but it is not necessary to discuss all the cases. Only the recent decision reported in (2000)1 SCC 621 (Padam Singh-Vs-State ofU.P.) will suffice. The Supreme Court in that case in paragraph 5 inter-alia pointed out as follows:- "It is too well settled that when the prosecution does not explain the injury sustained by the accused at about the time of the occurrence or in the course of occurrence, the Court can draw the inference that the prosecution has suppressed the genesis and origin of the occurrence and has thus, not presented the true version. It is also well settled that where the evidence consists of interested or inimical witnesses, then non-explanation of the injury on the accused by the prosecution assumes greater importance." As is indicated above, the injuries of Uttam Hazarika one of the accused were not explained and all the three eyewitnesses i.e. PW-1, PW-2 and PW-3 they are close relatives. It is also well settled that where the evidence consists of interested or inimical witnesses, then non-explanation of the injury on the accused by the prosecution assumes greater importance." As is indicated above, the injuries of Uttam Hazarika one of the accused were not explained and all the three eyewitnesses i.e. PW-1, PW-2 and PW-3 they are close relatives. They did not give the correct version with regard to the incident and with regard to the place of occurrence. All of them deposed that it was on the cortyard. But it was found by the Investigating Officer and as deposed by PW-4, it was on the road that the occurrence took place. So it cannot be said that these persons in their evidence gave true version of the case and thus they cannot be believed to hold that the accused caused the stab injury. Further we find from the deposition of Investigating Officer that in the statements of PW-1 and PW-2 there are glaring omissions and contradictions. In their statements before the Court they wanted to introduce develop things. They tried to improve and develop the culpability in order to rope in the accuser. This also casts doubt on to the veracity of the witnesses and it would be unsafe to convict the person on the basis of such tainted evidence. The next submission of Shri Saikia also has force inasmuch as when it was found that his brother was being injured he gave one stab blow not on the vital part of body but below waist. But this submission need not be considered, inasmuch as indicated above, we hold that it was not proved beyond reasonable doubt that Mintu gave the stab below. PW-1 deposed that when Mintu stabbed Kama, he alone was present, so PW-2 (Ganesh) and PW-3 (Renu) cannot be eyewitnesses. Further it is admitted, it was dark, so also it is doubtful that it could be seen as detailed vividly by PW-1, PW-2 and PW-3. It is further in evidence that there was altercation between Kama and accused person and even there was scuffle. On the same evidence the two accused acquitted any it is not safe to convict the present appellant. 5. It is further in evidence that there was altercation between Kama and accused person and even there was scuffle. On the same evidence the two accused acquitted any it is not safe to convict the present appellant. 5. In that view of the matter we set aside the judgment dated 30.6.2000 passed by the trial Court and we allow this appeal and set the accused at liberty forthwith if not wanted in other case/cases.