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2008 DIGILAW 626 (GAU)

Haricharan Basumatary v. State of Assam

2008-08-27

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Anima Hazarika, J. 1. The lone accused has been convicted by the trial Court under Section 302 of the Indian Penal Code (IPC for short) and sentenced to undergo imprisonment for life, alongwith fine of Rs.1000/- (Rupees one thousand), in default, further RI for 3 (three) months. The instant appeal has been preferred from jail by the accused challenging the legality and validity of the judgment of conviction and sentence dated 13.6.02 passed by the learned Sessions Judge, Goalpara in Sessions Case No. 18/2000. 2. Background facts in a nutshell are as follows: FIR (Ext. 1) was lodged by one Shyama Roy with the Dudhnoi Police Station stating inter alia, that on 22.4.2000 at about 8 p.m. the accused Hari Basumatary chased her son Raju Roy (since deceased) with a lathi in his hand from the road and upon reaching the courtyard started beating him. The said FIR further disclosed that Smti. Shyama Roy was cooking rice in the kitchen and upon hearing the cry of her son Raju, she came out and saw the occurrence. At that time the people in the area were not available as they went to enjoy the Bihu function which was going on nearby area. The deceased, finding no other way ran towards the backside of the house and the accused chased him beating. When the neighbouring people came, she told them about the incident and also the name of the accused. The neighbours searched for her son but he could not be traced out. However, next day, in the morning he was found dead with injuries on his person in a beel a little distance away from the house. The police received the FIR and registered a case being Dudhnoi P.S. Case No. 32 of 2000 under Section 302, IPC. 3. The police after registering the case started investigation, visited the place of occurrence, examined the witnesses, held inquest on the dead-body and thereafter sent the dead-body for postmortem examination and after collecting the postmortem report, submitted charge-sheet against the accused under Section 302, IPC. The case was committed to the Court of Sessions Goalpara, by the learned Chief Judicial Magistrate, Goalpara, the same being exclusively triable by the Sessions Judge. 4. On receipt of the case records, the learned Sessions Judge, Goalpara, considering the materials available before him framed charge under Section 302, IPC. The case was committed to the Court of Sessions Goalpara, by the learned Chief Judicial Magistrate, Goalpara, the same being exclusively triable by the Sessions Judge. 4. On receipt of the case records, the learned Sessions Judge, Goalpara, considering the materials available before him framed charge under Section 302, IPC. The charge being read over and explained to the accused, he pleaded not guilty and claimed to be tried. 5. During the trial, the prosecution in order to prove the guilt of the accused in the commission of offence has examined 6 witnesses. PW-1 and PW-2 Smt. Shyama Roy and Tulu Roy respectively claimed to be eye-witnesses. PW-1 who happens to be the mother of the deceased has deposed that the occurrence took place around 8/8:30 p.m. one year and two months back and on that day Bihu function was going on in the locality and she was at home. A storm was gathering at that time. The people of the locality went to enjoy the Bihu function. At that time the accused Hari Basumatary chased her son Raju to the backside of their house and assaulted him with a bamboo pole. She came outside taking a lamp and asked the accused why he was beating his son. She saw the accused beating her son in the head and in other parts of the body. Thereafter she saw the accused chasing her son Raju towards the backside of the hind-orchard. She could not make out to which direction the accused took Raju away. Thereafter her daughters Tulu Roy and Rulu Basfor reached home. She narrated before them the story of assault and chasing of her son Raju by accused Haricharan Basumatary She has also stated the story of assault to other persons, but due to storm and rain nobody came. Next day the dead-body of Raju was found lying in the water of the field. She filed the ejahar thereafter (Ext. I). During cross-examination PW-1 was firm in narrating the incident of assault and chasing. She stated that she had seen the accused beating Raju from a distance of about 20 or 25 feet. She had seen the accused in the light of the lamp. The other suggestions put to her by the defence have been denied. 6. PW-2, Smt. Tulu Roy is the sister of the deceased. She stated that she had seen the accused beating Raju from a distance of about 20 or 25 feet. She had seen the accused in the light of the lamp. The other suggestions put to her by the defence have been denied. 6. PW-2, Smt. Tulu Roy is the sister of the deceased. PW-2 deposed that the occurrence took place in the month of Bohag preceding to the last Bohag (April/May). At about 8 p.m. that night, she came to enjoy Bihu function. She went to keep her baby in her maternal uncle's house which is located near the place where the Bihu function was going on. She then saw her mother standing outside with a lamp and the accused Hari assaulting her brother Raju in the courtyard with a bamboo pole. Raju ran towards the backside and Hari chased him assaulting. Thereafter storm broke out. Her mother and herself went inside the house. They immediately informed the matter to their neighbour Runu Basfor and her husband. They went in search of Raju but found no trace of him. Two hours thereafter she went to her own house and in the next following day the dead-body of Raju was recovered and she came and found it in the water of the field. During cross-examination she deposed that she had seen Hari assaulting Raju from behind. Other questions put to her is not related to assault. 7. PW-3, Smt. Runu Basfor deposed that, on the date of occurrence, PW-1 and PW-2 came to their house and told that accused Hari was assaulting Raju and drove him away to the backside. Hearing the same, PW-3 alongwith her husband as well as PW-1 and PW-2 went in search of Raju, but they could not trace him out. In the next day dead-body of Raju was recovered from a pond. The suggestion put to her during cross-examination has been denied. 8. PW-4 is the writer of the ejahar (Ext. 1) and he has proved his signature put in the ejahar vide Ext. 1(1). 9. PW-5 is the Investigating Officer (I/O for short). He has stated that on receipt of the ejahar, he registered the case and took up investigation. He visited the place of occurrence where the crime was committed and found the dead-body lying in a marshy area behind the house of the complainant. 1(1). 9. PW-5 is the Investigating Officer (I/O for short). He has stated that on receipt of the ejahar, he registered the case and took up investigation. He visited the place of occurrence where the crime was committed and found the dead-body lying in a marshy area behind the house of the complainant. He held the inquest on the dead-body and sent it for postmortem examination. He also recorded the statement of the witnesses and on completion of the investigation submitted the charge-sheet. During cross-examination he has deposed that he had sent the ejahar to the Court on 24.4.2000. He had examined the witnesses after recovery of the dead-body on 23.4.2000. He had found the dead-body at a distance of about 200 meters from of the complainant. There was no house within that 200 meters. He has further deposed on question put to him that the dead-body was found by the edge of the water with its face downward in the water. In the inquest report however he had written to have found the dead-body floating in the water. He had not found any impression of fingers in the neck of the dead-body. He has further deposed that PW-1 Shyama Roy in her statement did not tell him that the accused had assaulted Raju in the head or in any other parts, but she stated that he had struck him in the back. 10. Dr. Saydur Rahman, PW-6 is the doctor who had performed the post-mortem examination on the dead-body of the deceased on examination, PW-6 has found the external appearance as follows: Dead-body of a 22 years old male average built, dark complexion, rigor mortis present in the extremities, fingers are dosed, tongue protruded out and cyanosed. Bleeding present from mouth and nose. Bruise present in front of neck on both sides. Haematoma present on right frontal and parietal and temporal region. Face, tongue, lips cynoses. PW-6 has further found that stomach contains mud and dirty water. In his opinion the death was due to injuries sustained and asphyxia as a result of throttling and suffocation which was anti-mortem and homicidal. The defence declined to cross-examine PW-6. 11. The trial Court upon considering the evidence on record of PW-1 and PW-2 coupled with the evidence of the doctor i.e. PW-6 found the accused appellant guilty and convicted and sentenced him as indicated herein above. The defence declined to cross-examine PW-6. 11. The trial Court upon considering the evidence on record of PW-1 and PW-2 coupled with the evidence of the doctor i.e. PW-6 found the accused appellant guilty and convicted and sentenced him as indicated herein above. Hence the appeal challenging the legality and validity of the judgment of conviction and sentence. 12. Criticising the judgment of conviction and sentence Mr. P.J. Saikia, learned Amicus Curiae has drawn the attention of the Court to the contents of the FIR (Ext. 1) dated 23.4.2000 whereby the prosecution has been launched against the accused appellant and submitted that the said FIR (Ext. 1), if read together with the evidence of PW-1 would reveal that PW-1 has not seen the alleged occurrence of assault by the accused with the help of a lamp and that too in a stormy night from a distance of 200 meters. In the said FIR PW-1 has not named PW-2 as witness of the occurrence. PW-1 has also not named PW-2 during her deposition and therefore it would not be safe to convict the accused on the sole testimony of PW-1. Mr. Saikia has further submitted that the learned trial Court has committed wrong in convicting the accused appellant on the basis of evidence adduced by PW-1, the sole eye-witness without any corroborative evidence. Since the prosecution has failed to prove the guilt of the accused beyond reasonable doubt, the judgment under challenge requires interference. 13. The learned Amicus Curiae has further urged that the evidence of PW-2 cannot be relied upon as her evidence would disclose that she went to keep her baby in her maternal uncle's house which is located near the place, where the Bihu function was going on, wherefrom she saw the assault on the person of the deceased by the accused that too on a stormy night. Moreover the assault inflicted on the deceased as disclosed by PW-1 and PW-2 does not tally with the report of the postmortem examination and hence urged that on this ground alone the judgment of conviction and sentence deserves to be interfered with in the facts and circumstances of the case. 14. Mr. K.A. Mazumdar, learned Addl. Moreover the assault inflicted on the deceased as disclosed by PW-1 and PW-2 does not tally with the report of the postmortem examination and hence urged that on this ground alone the judgment of conviction and sentence deserves to be interfered with in the facts and circumstances of the case. 14. Mr. K.A. Mazumdar, learned Addl. P.P., Assam appearing for the respondent state on the other hand supported the judgment of the trial Court contending inter alia that even if evidence of the prosecution witness PW-2 is brushed aside, the conviction can be based on the sole testimony of PW-1 and therefore urged that no interference is called for. 15. We have considered the arguments advanced by the contesting parties and have carefully gone through the entire evidence on record including the medical evidence, more particularly the evidence of PW-1, PW-2 and the medical evidence of PW-6. Admittedly PW-1 is the eye-witness to the occurrence. PW-1 has categorically Stated that the accused chased the deceased with a lathi to her courtyard and when the cause of assault was asked by PW-1, the accused gave a lathi blow and chased the deceased to the backside of the house. PW-1 specifically stated that she saw the accused assaulting her son Raju in the head and other parts of the body and found the dead-body was lying in the water of the field in the next day morning. The evidence of PW-6 who made the autopsy on the dead-body found haematoma present on right frontal, parietal and temporal region which does corroborates the evidence of PW-1. Law is well-settled that conviction can be based on the sole testimony of an eye-witness if such testimony is trustworthy; though in appropriate cases, the Court may seek some corroboration and confirming circumstances from other source and where the evidence of eye-witness is supported by medical evidence, it cannot be brushed aside easily. The evidence of PW-1 as corroborated by the injuries found in the body of the deceased and the medical evidence of the doctor, PW-6, as well as the post-mortem report, establish beyond reasonable doubt that the death of the deceased was caused by the appellant Sri Hari Charan Basumatary. 16. The trial Court has analysed in great detail the evidence of PW-1, PW-2 and PW-6 which clearly brings out the accusations against the accused appellant. 16. The trial Court has analysed in great detail the evidence of PW-1, PW-2 and PW-6 which clearly brings out the accusations against the accused appellant. There are certain minor variations which do not in anyway corrode the credibility of the prosecution version. The trial Court is therefore justified in placing reliance on their evidence and holding the accused appellant guilty. We do not find any merit in the appeal which is accordingly dismissed. 17. Before parting with the judgment, we would like to put on record our appreciation to Shri P.J. Saikia, learned Amicus Curiae for his valuable assistance rendered to arrive at a conclusion as indicated above. Accordingly, we order that he is entitled to get his professional fee which is quantified at Rs.5000/-. 18. The Registry is directed to send down the records immediately.