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2010 DIGILAW 713 (GAU)

Jogesh Morang v. State of Assam

2010-09-14

C.R.SARMA

body2010
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order dated 30.6.2010 passed by the learned Sessions Judge, North Lakhimpur in Sessions Case No. 1(NL)/07. 2. By the impugned judgment and order aforesaid, the learned Sessions Judge, North Lakhimpur convicted the accused person under Section 304, Part-II of the IPC and sentenced him to suffer Rigorous Imprisonment CRT) for 5(five) years and pay a fine of Rs. 5,000, in default, to further R.I. for 1(one) year. 3. Being aggrieved by the said conviction and sentence, the Appellant has come up with this appeal. 4. I have heard Mr. T. Islam, learned Counsel for the Appellant and Mr. B.B. Gogoi, learned Addl. P.P., Assam. 5. The prosecution case, as revealed at the trial, in brief, may be stated as follows: On 5.8.1992, the deceased, namely, Meme Payeng, the Appellant Shri Jogeswar Morang, Shri Dasiram Payeng, i.e., PW2, his wife Smt. Anjuli, Shri Baneswar and Shri Dambarudhar Payeng (PW4) were gossiping on the roof of a house. The Appellant told the deceased that he was an idiot. On being so insulted, the deceased came down the said roof and was waiting for the Appellant, with a lathi of his hand. Subsequently, a quarrel had taken place between the accused and the deceased, however, they were separated by the villagers. After about two hours, the deceased was again found waiting with a lathi. This time, the deceased, finding the Appellant on the road, chased him towards the boat in the river. The accused person caught hold of the deceased and pressed his neck. Then Shri Dambaru Payeng, i.e., PW4 declared the deceased to be dead. Shri Narayan Payeng, who was the Goan Burah of the village, on being informed by Shri Lilambar Mili about the incident, informed the police by lodging an FIR, which has been exhibited as Exhibit-2. Upon receipt of the said FIR, the North Lakhimpur police station registered a case being PS Case No. 543/92 under Section302, IPC and conducted the inquest in respect of the dead body of the deceased. Autopsy was also done in respect of the dead body. After completion of the investigation, police submitted charge sheet against the Appellant for the offence under Section, 302, IPC and forwarded him to the court stand trial. 6. The learned Sessions Judge, North Lakhimpur, framed charge under Section 302, IPC. Autopsy was also done in respect of the dead body. After completion of the investigation, police submitted charge sheet against the Appellant for the offence under Section, 302, IPC and forwarded him to the court stand trial. 6. The learned Sessions Judge, North Lakhimpur, framed charge under Section 302, IPC. The charge was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 7. The prosecution examined as many as 8 prosecution witnesses including the Medical Officer, who conducted the post mortem Examination and the Investigating Police Officer. The accused person was examined under Section 313, Code of Criminal Procedure. He denied the allegations, brought against him and declined to adduce any evidence. 8. Considering the materials available on record, the learned Sessions Judge found the accused guilty for the offence under Section 304, Part-II, IPC and accordingly convicted and sentenced him as indicated above. 9. Being aggrieved by the aforesaid conviction and sentence, the Appellant has come up with this appeal. 10. Mr. T. Islam, learned Counsel, for the Appellant, taking this Court through the evidence on record, has submitted that there is no substantive and reliable evidence against the accused/Appellant and that the learned trial Judge committed error by convicting the accused/Appellant. On the other hand, Mr. B.B. Gogoi, learned Addl. P.P., supporting the impugned judgment and order aforesaid, has submitted that there are sufficient evidence on record, more particularly, the evidence of P Ws 2 and 4 suggesting the involvement of the Appellant and as such, the learned Sessions Judge committed no error by recording conviction and sentence. 11. In order to appreciate the rival submissions, made by the learned Counsel appearing for the parties and to examine the correctness and legality of the impugned judgment and order, I am inclined to scan the evidence on record as follows: 12. Mr. Naren Payeng, deposing as PW5, stated that he was the Goan Burah of the village and on 5.8.1992, at about 3 p.m., he was informed by Shri Lilambar Mili about the occurrence and accordingly he informed the police. Ext.2 is the FIR and Ext.2(1) is his signature. He stated that the dead body of the deceased Meme Payeng was found in the boat at 27 k.m. ferry ghat in village Dambukial. He also rushed to the place of occurrence and found the dead body. Ext.2 is the FIR and Ext.2(1) is his signature. He stated that the dead body of the deceased Meme Payeng was found in the boat at 27 k.m. ferry ghat in village Dambukial. He also rushed to the place of occurrence and found the dead body. In the FIR, it has been mentioned that he was informed by Shri Dambaru Payeng PW4 and other villagers that the Appellant Jogeswar Morang had killed the deceased. But this witness in his evidence given on oath, did not state that he was informed by Dambaru Payeng that the deceased was killed by the Appellant. In view of the above, I find that PW5 himself failed to support the contention made in the said FIR (Exhiibit-2). 13. Shri Swarna Payeng, deposing as PW1, stated that he heard about the discovery of the deceased in a boat. On being so informed, this witness rushed to the place of occurrence. According to this witness, he was informed by Shri Dashiram Payeng (PW2), Dambarudhar (PW4), Mahari Bharat Chandra Hazarika (PW6) that the deceased was killed by the accused/Appellant Jogeswar Morang. He was a witness to the inquest made by the police Ext.1 is the inquest report and Ext. 1(1) is his signature thereon. 14. Shri Dashi Ram Payeng, deposing as PW2, stated that on 5.8.1992, about 11 a.m., while he was gossiping on a roof of a co-villager along with his wife, deceased Appellant, Bharat and Puneswar Pegu, the Appellant told the deceased to be an idiot and on being so insulted, the deceased came down the said roof and was waiting for the Appellant with a lathi on his hand. Subsequently, a quarrel had taken place between the accused and the deceased and they were separated by the villagers. According to this witness, the deceased again chased the Appellant and this time the Appellant had caught hold of the deceased and pressed the neck of the deceased who was declared to be dead by PW4. This witness was declared hostile by the prosecution. He denied the suggestion, put to him by the prosecution, that the Appellant had given a blow on the head of the deceased after pressing his neck. According to PW2, the Appellant had pressed the neck of the deceased. It is evident that Shri Dambaru Payeng PW4 had declared the deceased to be dead. He denied the suggestion, put to him by the prosecution, that the Appellant had given a blow on the head of the deceased after pressing his neck. According to PW2, the Appellant had pressed the neck of the deceased. It is evident that Shri Dambaru Payeng PW4 had declared the deceased to be dead. According to this witness he could not say as to who had assaulted the deceased. 15. Shri Mohiram Payeng, deposing as PW3 stated that he heard about the death of the deceased. He further stated that the deceased died due to quarrel that took place between the deceased and the Appellant. From the evidence of this witness, it is found that he did not see the occurrence. Police held inquest on the dead body of the deceased vide Ext.1. Ext 1(2) is his signature thereon. 16. Shri Bharat Chandra Hajarika, desposing as PW6, stated that, on being asked by police regarding the occurrence, he expressed his ignorance. He further stated that he found the dead body of the deceased in a boat at 27 k.m at Ferry ghat. 17. Shri Robin Gohain, S.I. of police deposed as PW7. 18. Dr. Jayanada Prasad, deposing, as PW8, stated that he performed the Autopsy and found no external injury on the dead body. He found blood clot in subdural space over the frontal lobe and past of the perietal lobe of the brain extending to the coronal and suggisted sulci. Accoring to the Medical Officer, the injury was antimortem in nature. He opined that the cause of death was shock and haemorrhage (subdural haemorrhage). He exhibited the post mortem report as Ext.5. Ext. 5(1) is his signature and Ext. 5(2) is the signature of the then Joint Director, Lakhimpur. 19. From the evidence of PW8, it is found that the deceased died due to subdural haemorrhage injury caused on his head. But none of the prosecution witnesses stated anything regarding such injury. There is no evidence to show that the Appellant caused any injury on the head of the deceased. 20. Considering the entire evidence on record, I find nothing substantive to believe that the accused person had caused the death of the deceased. But none of the prosecution witnesses stated anything regarding such injury. There is no evidence to show that the Appellant caused any injury on the head of the deceased. 20. Considering the entire evidence on record, I find nothing substantive to believe that the accused person had caused the death of the deceased. Only PW2 stated that the accused had pressed the neck of the deceased, but there is no corroboration in the evidence of the said witness regarding the injury alleged to be sustained by the deceased on his neck. That apart, according medical evidence does not indicate that the neck injury was the cause of death. From the evidence of the prosecution witnesses, it transpires that a quarrel had taken place between the deceased and the accused person and the deceased made attempt to assault with the accused. It is settled the deceased made attempt to assault with the accused. It is settled law that in a criminal case, the prosecution is required to prove the charge, brought against the accused person, beyond all reasonable doubt. 21. Considering the evidence of record as discussed above, I find no sufficient reliable and cogent evidence to believe that the Appellant had caused the death of the deceased. Therefore, in my considered opinion the prosecution failed to prove its case beyond reasonable doubt. 22. In view of the above, the appeal is allowed. The impugned judgment and order, dated 30.6.2003, passed by the learned Sessions Judge, North Lakhimpur is hereby set aside and quashed. 23. Consequently, the accused/Appellant is acquitted and set at liberty forthwith. His bail bond shall stand discharged. Return the L.C.R. forthwith. Appeal allowed