Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 294 (GAU)

Tankeswar Roy v. State of Assam

2010-04-28

C.R.SARMA, R.S.GARG

body2010
JUDGMENT R.S. Garg, J. 1. The appellant Tankeswar Roy, being aggrieved by the judgment dated 30.6.2006 passed by the learned Sessions Judge, Barpeta, in Sessions Case No. 41/2004 (GR Case No 192/2003), convicting the appellant under Section 302, IPC, and sentencing him to undergo RI for life with a fine of Rs. 1,000 in default to suffer RI for another one month, has filed the present appeal. 2. We have heard Ms. Rita Das Mazumdar, learned amicus curiae and Mr. Z. Kamar, learned P.P., Assam. 3. The prosecution case in short for final disposal of the present appeal as it appears from the Ejahar, Ext-1, submitted by one Ratneswar Das, with the in-charge Pathsala Out Post under Patacharkuchi Police Station that on 9.10.2003 the said Ratneswar Das, was informed by the Panchayat President and some residents of the village Bargunari that the accused Tankeswar Roy, late in the night about 2.30 a.m. killed his son in his own house with the help of a dao over some family dispute. After receiving the information, the police registered the first information report and proceeded with the investigation. The prosecution case further reveals that the accused produced a sharp cutting dao and confessed his guilt before the police. After the information was received by the police, the body of the deceased was seized and was sent for Post Mortem. Other steps in the investigation were also taken, statements of number of witnesses were also recorded. On completion of investigation, charge sheet was filed before the learned Sub-Divisional Judicial Magistrate (M), Bajali, who found that the case was exclusively triable by a Court of Sessions and accordingly committed the same to the Court of Sessions. Whereupon charges were framed against the accused and the parties were allowed to lead evidence in support of the case. After hearing the respective parties, the learned trial court convicted and sentenced the accused as referred to above. 4. Ms. Mazumdar, learned amicus curiae, has taken us through the statements of seven witnesses examined by the prosecution side that the witnesses were not supporting the basic versions of the prosecution, that ejahar, Ext-1, was based on hearsay evidence. The dao seized by the police did not contain human blood stain and in absence of any positive evidence to connect the accused with the guilt, the court below was absolutely unjustified in convicting the accused. 5. Mr. The dao seized by the police did not contain human blood stain and in absence of any positive evidence to connect the accused with the guilt, the court below was absolutely unjustified in convicting the accused. 5. Mr. Z. Kamar, learned P.P., Assam, however, submitted that in the present matter, number of witnesses had stated before the police under Section 161, Cr.PC, that the accused was the author of the guilt and every one of them being the resident of the same village and being relations of the accused changed their stand and stance before the court. But fact still would be that the accused had committed the crime. 6. We have heard the parties at length and we have also gone through the total evidence. 7. PW1, Ratneswar Das, as already observed, was the person who had lodged ejahar before the police had stated that he heard about the incident. There is nothing further in his statements. 8. PW2, Prabin Sarma, also stated before the court that at the morning following the incident, he heard about the incident, but he, however, refused any personal knowledge in the matter. He was declared hostile and the prosecution could not bring out substantial evidence in his cross-examination. 9. PW3, Smt. Damayanti Roy, happens to be the wife of the accused, Tankeswar Roy and the mother of the deceased, in her statement she stated that the son assaulted her husband and herself and thereafter she, her husband and her daughter left the house and started running on the road. While they were running on the road she fell down on the ground, lost her senses and her son gave her a lathi blow on her head. According to her, after regaining sense, she found her son was killed. She was also declared hostile by the prosecution. In the cross-examination, she did not support the prosecution. 10. PW4, Dr. Paresh Kalita, conducted autopsy on the body of the deceased. From his statement it would only appear that he found the death to be homicidal only. 11. PW5, Danpati Roy, though was examined as eye witness but unfortunately he also did not support the prosecution. 12. PW6, Basanta Roy, also did not support the prosecution and was declared hostile. 13. PW7, Kanak Chandra Nath, SI of Police, received the FIR and had conducted the investigation. 11. PW5, Danpati Roy, though was examined as eye witness but unfortunately he also did not support the prosecution. 12. PW6, Basanta Roy, also did not support the prosecution and was declared hostile. 13. PW7, Kanak Chandra Nath, SI of Police, received the FIR and had conducted the investigation. From his statement it would only appear that he had recorded the statements of the witnesses and had taken some particular actions during the course of investigation. 14. On the basis of above evidence on record, the learned trial court on one side found that the prosecution agency was unable to bring positive evidence on record nor was successful in connecting the accused with the crime suddenly started observing that the statements of hostile witnesses could be relied upon, if the said part of the evidence was reliable. The learned trial court after observing so, in fact, did not rely upon the statement of the prosecution witnesses recorded during the course of trial but started relying the statement recorded by the police under Section161, Cr.PC. The manner in which the statements recorded under Section 161, Cr.PC, were relied upon by the learned trial court was contrary to law and was also violative of law settled by the Apex Court. The Supreme Court has repeatedly said that a court would be justified in relying upon the unimpeachable testimony of a hostile witnesses but the Supreme Court nowhere said that if the witness declared hostile does not accept the statements recorded under Section 161, Cr.PC, then the court can rely upon the statements of the witnesses recorded under Section 161, Cr.PC. 15. In our opinion, the approach of the learned trial court was absolutely wrong. On the basis of the above evidence available on records, the learned trial court ought not and should not have convicted the appellant on the charges framed against him. 16. We are unable to agree with the findings recorded by the learned trial court. Accordingly, we set aside the findings recorded in the judgment and order dated 30.6.2006 and consequently also set aside the conviction so recorded and the sentence so awarded to the accused appellant. 17. The accused appellant is acquitted of all the charges. The accused appellant appears to be in jail. The jail authority, if the accused is not required in connection with any other case, shall immediately release the accused. 17. The accused appellant is acquitted of all the charges. The accused appellant appears to be in jail. The jail authority, if the accused is not required in connection with any other case, shall immediately release the accused. The fine amount, if any, recovered from the appellant, immediately be returned. 18. The State of Assam is hereby directed to pay a sum of Rs. 2,500.00 to the learned amicus curiae on submission of a copy of this judgment.