Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 827 (GAU)

Bupen Bora v. State of Assam

2008-11-28

AFTAB H.SAIKIA, H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. Heard Mr. T.J. Mahanta, learned Counsel appearing on behalf of the Appellant as well as Mr. K.A. Mazumdar, learned Public Prosecutor, Assam for the Respondent. 2. The Appellant was tried under Section 302 IPC for committing murder of one Nabin Bora (deceased) on 14.9.98 at about 10.00 PM at Makrang Habigaon. The learned Sessions Judge, Jorhat after due trial convicted the Appellant under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5,000/-, in default, to undergo further rigorous imprisonment for six months, in Sessions Case No. 100 (J-J)/99 vide judgment and Order dated 19.7.03. 3. The prosecution story as disclosed in the FIR lodged by Pradip Bora (P.W. 1) is that a quarrel ensured in between the Appellant and the deceased on 14.9.98 at about 10.00 PM over some trifling matters in the house of Bhim Kanta Gogoi (P.W. 8) and both went out of the premises of P.W. 8. The Appellant caused grievous injuries to the deceased with the help of a' Khukri'. Nabin Bora (deceased) succumbed to those injuries. When Narayan Gogoi (P.W. 4) appeared at the scene hearing alarm and the quarrel, he was too assaulted by the Appellant with the help of the same 'khukri'. P.W. 1, Accordingly on 15.9.98 lodged the First Information Report (Ext. 1) with Boihola Police Station. Due investigation was conducted and dead body was sent to hospital for postmortem examination. The 'khukri' had been seized by the investigating officer vide Ext. 4. 4. After completion of the investigation, a chargesheet was laid against the Appellant under Section302 IPC. The case being committed to the Court of Sessions, a charge was framed under Section302 IPC against the Appellant. The Appellant pleaded not guilty when the charge was explained to him. 5. Prosecution for the purpose of bringing home the charge brought as many as 12 witnesses including P.W. 6 (Suren Dutta) and P.W. 7 (Dr. KumudGogoi) and the Investigating Officer. At the closure of the trial, the Appellant was convicted as stated above. 6. The Appellant, feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence, has preferred this instant appeal challenging its legality and correctness. 7. Mr. KumudGogoi) and the Investigating Officer. At the closure of the trial, the Appellant was convicted as stated above. 6. The Appellant, feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence, has preferred this instant appeal challenging its legality and correctness. 7. Mr. T.J. Mahanta, learned Counsel for the Appellant at the very outset of his agrument, submits that the judgment and order of conviction and sentence cannot be allowed to stand in view of material infirmities appearing in the testimony of P.W. 4 (Narayan Gogoi). According to him, the conviction was solely based on the testimony of this witness. But the testimony of P.W. 4, if scanned meticulously cannot be relied on since there appears some discrepancies in between his statement and statement of other witnesses examined in this case. 8. P.W. 4 (Narayan Gogoi) testified as under: The house of Lt. Nabin Bora is near to ours. The house of accused Bhupen Bora is also near to ours. It has been some four years since Nabin died. Around 8.30 pm on the day of occurrence I went to attend the call of nature by the side of the road on our front. Then I heard a commotion at a distance of about 10 nais towards the field. Then I went to that place. I, then, saw Nabin Bora and accused Bhupen Bora there. Bhupen and Nabin was quarrelling then. I saw a pointed iron object in the hand of Bhupan Bora but could not discern what it was, and I saw Bhupen piercing Nabin with it. Thereafter, accused Bhupen also pierced me with that sharp object, and as a result, I sustained injuries below the left arm. I was stabbed since I went there. Returning home, in a run, I narrated the matter to my elder sister Junu Gogoi and, thereafter I went to inform the matter to Nabin Barua's house. Later, I took doctor's treatment for my injuries. Nabin died later. 9. From the evidence of P.W. 4, it appears that on the relevant night of about 8.30 PM, he had been to attend the call of nature by side of the road situated in their front. Then he heard a commotion at a distance of about 10 nols towards the field and accordingly he went there. He saw Nabin Bora and the Appellant quarrelling in between for some matters. Then he heard a commotion at a distance of about 10 nols towards the field and accordingly he went there. He saw Nabin Bora and the Appellant quarrelling in between for some matters. He saw a pointed iron object in the hand of the Appellant but failed to discern what it was. He also stated that the Appellant pierced the deceased with the help of the said iron object. Thereafter, he (Appellant) also pierced him with the same object. He stated that he was pierced by the Appellant for his going there. He came home and reported the matter to Junu Gogoi who accordingly informed the inmates of the house of the deceased regarding the incident. 10. Mr. Mahanta, taking aid of the evidence of P.W. 8 (Bhim Kanta Gogoi) and the cross examination of P.W. 4, submits that there was no occasion on the part of P.W. 4 to attend the call of nature leaving his latrine which was existed at that point of time. Further, it is argued by him that the testimony of P.W. 4 also can not inspire confidence in view of the conflicting statement made by him in regard to sustention of injuries on his person. 11. P.W. 7, Dr. Kumud Gogoi, in his evidence deposed that on 15.9.98 at about 4.00 PM, he examined P.W. 4 and discovered 3 numbers of injuries on his person, 2 (two) numbers of cut and spindle shaped with fresh bleeding, penetrating in type of the size-1 inch x 1/2 inch bone deep with sharp inverted edges over left lateral chest wall, parallel along 5th rib and one cut penetrating in type with fresh bleeding spindle shaped, size-1 inch 2 1/2 inch in the widest part with inverted sharp edges over inside of the middle of the right upper arm. Therefore, according to this witnesses, he (P.W. 4) received 3 numbers of injuries on his person. But if we consider his statement on oath, we would find that he did not reveal before the court about sustention of 3 numbers of injuries as discovered by P.W. 7, Dr. Kumud Gogoi. P.W. 4 testified that Appellant pierced him with a sharp object as a result of which he sustained injury below the left arm. This goes to show that he did received only one injury as dealt with by the Appellant. 12. In that view of the matter, Mr. Kumud Gogoi. P.W. 4 testified that Appellant pierced him with a sharp object as a result of which he sustained injury below the left arm. This goes to show that he did received only one injury as dealt with by the Appellant. 12. In that view of the matter, Mr. Mahanta submits that the conviction which was awarded by the trial Court cannot be allowed to stand in view of such intra-conflicting statement of P.W. 4 himself. 13. Mr. T.J. Mahanta, learned Counsel for the Appellant in the context of acceptance of solitary testimony of P.W. 4 and in support of his argument relied on the decisions in the case of Rahim Badsha v. State of Assam reported in (2007) 4 GLT 506 and in the case of Anil Prakash Shukla v. Arvind Shukla reported in (2007) 9 SCC 513 . 14. From the scrutiny of evidence of P.W. 4, we have come across that he was not a natural witness and he had been to the place of occurrence by a sheer chance and that apart he is not found consistent in respect of testifying the number of injuries sustained by him. The testimony of solitary witness can be acted upon if the same is free from any inconsistencies, loopholes etc. The evidence of solitary witness must be a truthful character and not otherwise. If the testimony of solitary witness is burdened with some discrepancies, unreality, etc. it would not be justified to award conviction and sentence relying on such testimony. We, after meticulous scanning of his (P.W. 4) evidence, do not find that his testimony is sufficient to inspire confidence in the mind of the Court so as to bring home the charge of an offence against the Appellant under Section 302 IPC. 15. In view of the above, we are of the considered view that the Appellant is entitled to get the benefit of doubt. Accordingly, we set aside the conviction and sentence of the Appellant. The Appellant is acquitted for required for further incarceration om the charge under Section 302 IPC. 16. The Appellant be set at liberty forthwith, if he is not required for further incarceration in any other case. 17. In the result, the appeal succeeds and stands allowed.