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2008 DIGILAW 272 (GAU)

Ranjit Gohain v. State of Assam

2008-04-08

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. K. Agarwal, learned Counsel appearing for the appellant. Also heard Mr. B.S. Sinha, learned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the Judgment and Order dated 2.2.2001 passed in Sessions case No. 25(J-J) of 1997 by the learned Sessions Judge, Jorhat convicting the accused appellant under Section 302/34, IPC and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 500/-(Rupees five hundred), in default, to suffer rigorous imprisonment for one month. 3. The prosecution case in a short is that an FIR was lodged by one Sri Bharat Gohain (PW 1) on 16.1.1996 with Pulibor Police Station at Jorhat alleging that on that day at about 9-30 P.M., Sri Ranjit Gohain (the appellant), Sri Prabhat Gohain and Diganta Hatibaruah called out his cousin Sri Sanjib Handique (hereinafter referred to as 'the deceased') from house and dragged him from gateway to the front of "Naba Prabhat Yuvak Sangha" and thereafter they assaulted him and inflicted injury on his head with a sharp weapon and left him there in almost half dead condition. At that time, Sri Bui Saikia (PW 2) arrived at the spot and having found him injured informed the police and admitted him in the Jorhat Civil Hospital. 4. On being informed, police registered a case being Pulibor Police Station Case No. 5 of 1996 under Section 302/34, IPC. Police started investigation and on completion of the investigation, submitted charge- sheet against Sri Ranjit Gohain, the appellant and two others viz., Prabhat Gohain and Diganta Hatibaruah under Sections mentioned above. However, the accused Diganta Hati Baruah was declared absconder by the committing Court. Eventually, the case was committed to the Court of Sessions, Jorhat, as the case was exclusively triable by the Court of Sessions. The learned Sessions Judge on perusal of the relevant materials on record and after hearing the learned Counsel for the parties, framed charges against the appellant Ranjit Gohain and Prabhat Gohain under the abovementioned Sections, to which they pleaded not guilty and claimed to be tried. 5. During trial, the prosecution examined as many as 12 witnesses including Dr. Probin Kr. Baruah (PW 11), who conducted autopsy on the dead-body of Sanjib Handique and Sri Jatin Ch. Bora (PW 12), the Investigating Officer (I.O.). 6. 5. During trial, the prosecution examined as many as 12 witnesses including Dr. Probin Kr. Baruah (PW 11), who conducted autopsy on the dead-body of Sanjib Handique and Sri Jatin Ch. Bora (PW 12), the Investigating Officer (I.O.). 6. The learned Sessions Judge, Jorhat having appreciated the testimony of those witnesses, so examined, as well as having considered the arguments advanced by the learned Counsel for the parties, found the appellant guilty of offence for committing murder of the deceased and accordingly, the appellant was convicted and sentenced as mentioned above and the other accused Sri Prabhat Gohain was acquitted of the charges. 7. Mr. Agarwal, learned Counsel appearing for the appellant, assailing the impugned conviction and sentence has vehemently argued with the admitted position that there was no eye-witness to prove the incident. The appellant was convicted basically on the basis of dying declaration of the deceased, deposition made by PW 1 Shri Bharat Gohain, PW 2 Shri Bul Saikia and PW 4 Shri Dipen Hazarika. The learned trial Court on meticulous perusal and analysis of the depositions made by PW 1, PW 2 and PW 4, exclusively came to the conclusion that dying declaration made by the deceased found to be truthful and believable and thus convicted the accused appellant solely relying upon the alleged dying declaration which was not corroborated by the other witnesses. That apart, Mr. Agarwal's submission is that the evidence of those three witnesses was totally unreliable, unbelievable and full of contradictions and inconsistencies. In support of such submissions, learned Counsel for the appellant has taken this Court straight to the deposition of PW 1, PW 2 and PW 4 as well as the FIR. 8. Before appreciating the deposition of those witnesses, it would be necessary to note the injuries so suffered by the deceased as per medical evidence of PW 11 which reads as under: Detailed description: (1) Deep cut injury extending from occipital region to right temporal region, measuring 16 cm x ½ cm x 3 cm cutting the skull and the membrane exposing the brain. (2) Deep cut injury in the occipital region, measuring 10 cm x ½ cm x 3 cm cutting the skull and membrane exposing the brain. (2) Deep cut injury in the occipital region, measuring 10 cm x ½ cm x 3 cm cutting the skull and membrane exposing the brain. (3) Deep cut injury in the upper part of the back of the neck in the left lateral side, measuring 8 cm x ½ cm x 3 cm extending upto vertebral column without involving vertical column. (4) Cut injury in the left areola of the ear, measuring 1 cm x ½ cm. (5) Cut injury in the medial aspect of the right knee, measuring 3 cm x ½ cm x 2 cm. It appears from the medical evidence that the deceased suffered as many as 5 cut injuries on his person as described above and in the opinion of the doctor, the death was due to syncope resulting from the injuries sustained by the deceased. The injuries were sufficient to cause death in the ordinary course of nature. 9. Now, let us discuss, evaluate and appreciate the testimony of PW1, PW 2 and PW 4. PW 1 Bharat Gohain was the informant and also cousin of the deceased who lodged the ejahar with the Pulibor P.S. wherein he categorically stated that it was Ranjlt Gohain (the appellant), Prabhat Gohain and Diganta Hatibaruah who called out his cousin from his house and dragged him from gateway to the front of Naba Probhat Yuvak Sangha and inflicted injury on his head with a sharp weapon and lateron in the Jorhat Civil Hospital, Sanjib succumbed to such injuries on the said night i.e. 16.1.1996 at about 2-30 A.M. Interestingly, in his deposition, this witness stated that it was only Diganta Hatibaruah, who was declared absconder, called the deceased from his house and the deceased went out. He stated that the deceased used to live in his house and at that time the deceased was in his house. He further deposed that on the said night of occurrence, Bul Saikla (PW 2), Jitu Baruah, who was not examined and another friend of Sanjib came to his house. After 15 minutes of departure of Sanjib, he heard a shout as 'Marilu, Marilu' towards the farm house of the accused persons and the said voice was of the deceased. Hearing such shout, he alongwith Bul Saikia, Jitu Bora and another friend of Sanjib namely, Putu went towards the farm house of the accused person. In tact, this witness was testified. Hearing such shout, he alongwith Bul Saikia, Jitu Bora and another friend of Sanjib namely, Putu went towards the farm house of the accused person. In tact, this witness was testified. He stated that he saw the deceased proceeding towards them with injuries in an abnormal state and when he approached, the deceased fell down on his arms. At the same time, he saw accused Prabhat Gohain proceeding towards the farm house with a weapon, like sword in his hand. Ajit Barua (who was not examined by the prosecution) was with PW 1 at that time. When they asked the deceased as to how he received injuries, the deceased told that 'Ranjit Gohain and Diganta Hatibaruah cut me' This witness further deposed categorically in his cross-examination that the deceased alongwith Ranjit Gohain, Probhat Gohain, Munin Gogoi and one Niren Bora were the members of Naba Prabhat Yuva Sangha Krishi Aru Min Pam and the deceased used to stay in the farm house of that Samiti, whereas in his earlier statements made in chief he stated that the deceased used to stay in his house. He also denied suggestions that he told police that he saw a weapon like sword in the hands of the accused Prabhat Gohain. This statement was corroborated by PW 12, the I.O. PW 1 in his statement dearly stated before PW 12 that the accused Ranjit Gohain had killed the deceased Sanjib Gohain. 10. PW 2 Sri Bul Saikia in his deposition stated that on the day of occurrence at about 10-30 p.m. he, Dipen Hazarika (PW 4) and Jitu Baruah (who was not examined) were invited into the house of PW 1 where the deceased used to stay. He reiterated that the deceased used to stay in the house of Bharat Gohain. When dinner was arranged, somebody called Sanjib and he went out. After 10 minutes of Sanjib's going out, they heard nullah outside and Sanjib cried 'Morilu, Morilu'. He alongwith Dipen Hazarika and Jitu Barua went out, followed by Bharat Gohain. He saw that outside the fence of farm house of "Nava Prabhat Yuva Sangha" accused Ranjit Gohain was assaulting Sanjib Handique with a dao. When he was about to proceed further, he was caught hold by accused Prabhat and he took him to his house. While he was in the custody of accused Prabhat Gohain, he saw accused Ranjit Gohain. He saw that outside the fence of farm house of "Nava Prabhat Yuva Sangha" accused Ranjit Gohain was assaulting Sanjib Handique with a dao. When he was about to proceed further, he was caught hold by accused Prabhat and he took him to his house. While he was in the custody of accused Prabhat Gohain, he saw accused Ranjit Gohain. He heard Ranjit telling Prabhat Gohain that the injured is likely to die. Thereafter, he came out of the house of Prabhat Gohain and saw the deceased who was being carried by some persons towards the house of Ajit Baruah, who was not examined by the prosecution. In cross-examination, he testified that he saw accused Ranjit inflicting dao blow on deceased Sanjib Handique. He denied the suggestion that he did not tell before the police that he saw Ranjit Gohain assaulting Sanjib Handique with a dao. Such statement was totally negated by the statement of PW 12 the I.O. who in his evidence categorically stated that Bul Saikia did not state before him that accused Ranjit killed Sanjib. 11. PW 4 Sri Dipen Hazarika in his deposition stated that at the time of occurrence he alongwith Jitu Baruah and Bul Saikia were in the house of Bharat Gohain. The deceased was also in the same house. They were all invited for dinner and when food was served somebody called Sanjib Handique from out side. After 10 minutes of Sanjib's departure they heard Sanjib's cry 'Morilu, Morilu'. Immediately he, Bul Saikia and Jitu Baruah went out and they were followed by PW 2 Bharat Gohain. From a distance of 15 ft. they saw the accused Ranjit Gohain and Diganta Hattbarua were inflicting dao blows on Sanjib Handique. When they proceeded further Prabhat Gohain caught hold of Bul Saikia and prevented them from proceeding further. Probhat Gohain took Bul Saikia to his house. He alongwith Jitu Barua also went to the house of Probhat Gohain. At that time accused Ranjit Gohain went there and told them that Sanjib was going to die. After departure of Ranjit Gohain from the house of Prabhat Gohain all three of them came out and saw the accused Ranjit Gohain inflicting dao blows on Sanjib. On their return, they found Sanjib Handique was able to speak. At that time accused Ranjit Gohain went there and told them that Sanjib was going to die. After departure of Ranjit Gohain from the house of Prabhat Gohain all three of them came out and saw the accused Ranjit Gohain inflicting dao blows on Sanjib. On their return, they found Sanjib Handique was able to speak. On being asked by them Sanjib Handique told "Ranjit Gohain and Diganta Hati Baruah cut me" Bul Saikia brought his car and they all went to police station first and then to Jorhat Civil Hospital. Sanjib Handique died in the hospital on that very night. In the cross-examination, this witness was testified. He avoided the suggestion that he did not tell before police that he saw accused Ranjit Gohain and Diganta Hati Baruah inflicting dao blows on Sanjib Handique. This statement is also equally brushed aside by the deposition of PW 12, when he dearly stated that this witness did not say before him that he saw Ranjit Gohain and Diganta Hati Baruah inflicting dao blows on the deceased. 12. Having gone through the evidence of all the witnesses carefully and meticulously, more particularly evidence of PW 1, PW 2 and PW 4, we are of the view that the testimony of those witnesses were really not trustworthy and do not inspire confidence to uphold the impugned conviction which was solely based on the alleged oral dying declaration made before PW 1, PW 2 and PW 4. That apart, we have found that there are inconsistencies and contradictions in the testimonies of these witnesses so relied upon by the trial Court. 13. In view of what is stated, discussed and observed above, we are of the considered view that on the basis of the evidence of those witnesses i.e. PW 1, PW 2 and PW 4 as well as oral dying declaration, the impugned conviction and sentence cannot be sustained. Accordingly, the same stands quashed and set aside. 14. The appellant is set at liberty forthwith, if he is not wanted in connection with any other case. 15. Send down the lower Court records immediately.