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2010 DIGILAW 770 (GAU)

Kamal Gogoi v. State of Assam

2010-09-28

H.BARUAH

body2010
JUDGMENT H. Baruah, J. 1. Heard Mr. A.M. Majumder, learned senior counsel assisted by Mr. F.K.R. Ahmed, learned counsel for the appellant and Mr. K. Munir, learned Additional P.P., for the State of Assam, the sole respondent. 2. In this appeal, the judgment and order dated 29.11.2002 passed by Sessions Judge, Dhemaji in Sessions Case No. 38 (DH)/97 has been challenged. By this impugned judgment and order, the trial court convicted the appellant under Section 307, IPC and sentenced him to suffer rigorous imprisonment for two years and to pay fine of Rs. 1,000 in default rigorous imprisonment for one month. 3. The brief facts involved in this appeal can be recorded as under: Informant Sri Sibaram Morang was entrusted with investigation of the case being No. Dhemaji P.S. 104 of 1995 under Section 394, IPC by the Officer-in-charge of Dhemaji police station. For the purpose of investigation of the case as indicated above, on 30.6.1995 at about 9.45 p.m. said Sibaram Morang along with Constable Gyandhar Deuri, Binanda Boruah, Naren Sonowal and several others proceeded to the place of occurrence and when all of them reached the weekly market, accused Kamal Gogoi, the appellant herein along with Piti Gogoi, Bhaikon Gogoi and Pankaj Konwar all on a sudden attacked Sibaram Morang, the Sub-Inspector of police, the Investigating Officer, Dhamaji P.S. Case No. 104 of 1995 with the help of dao resulting injuries to his right hand chest. During commotion accused Piti Gogoi was caught red handed by one of them. On lodgment of the First Information Report by Sibaram Morang with the Officer-in-charge, Dhemaji Police Station, Dhemaji P.S. Case No. 105 of 1995 was registered under section 333/307/427 read with section 34, IPC. Investigation commenced and after due investigation charge sheet was laid against the appellant under Section 333/307/427/34, IPC along with others, namely, Piti Gogoi, Pankaj Konwar and Bhaikon Dihingia @ Pranjal. It is to be noted that during investigation of the case, the Investigating Officer seized a dao from the possession of accused appellant Sri Kamal Gogoi along with his golden badge. The offence under section 307, IPC being exclusively triable by the Court of Sessions, the case was committed for trial of the accused persons to the Court of Sessions. It is to be noted that during investigation of the case, the Investigating Officer seized a dao from the possession of accused appellant Sri Kamal Gogoi along with his golden badge. The offence under section 307, IPC being exclusively triable by the Court of Sessions, the case was committed for trial of the accused persons to the Court of Sessions. The trial court on 4.2.1998 having prima fade material to presume that the appellant Kamal Gogoi, Piti Gogoi, Pankaj Konwar and Bhaikan Dihingia alias Pranjal committed offences under Sections 352 and 427, IPC framed charges accordingly against them while appellant Kamal Gogoi was charged alone under Section 307, IPC. Accused persons having not pleaded guilty to the charges, the trial commenced. 4. Prosecution all together to bring home the charges examined 10 witnesses including the doctor and the I.O. The trial court on the basis of the materials available and the evidence on record both oral and documentary by the impugned judgment dated 29.11.2002 convicted the appellant, Kamal Gogoi alone under Section 307, IPC. Finding no sufficient materials rather evidence on record as against all the four accused including the appellant herein acquittal was recorded under Sections353 and 427, IPC. Hence, this appeal. 5. At the very outset, Mr. A.M. Majumder, learned senior counsel for the appellant submits that the conviction and sentence awarded by the learned trial court by the impugned judgment cannot sustain in view of absence of proof of the Dhemaji P.S. Case No. 104 of 1995 and also in absence of proof of the command issued by the Officer-in-charge of Dhemaji Police Station-II, to the first informant, PW8, Sri Sibaram Morang to investigate the case as indicated. The second leg of argument advanced by Mr. A.M. Mazumder learned senior counsel is in respect of non-production of the torchlight, the means of recognition of the accused at the time of occurrence. It is argued by him that occurrence admittedly took place during night time at about 9.45 p.m. Except witness Sibaram Morang (PW8) none of the witnesses accompanied said Sibaram Morang did state before the trial court on oath that they had the opportunity to recognize the assailant, therefore, according to Mr. It is argued by him that occurrence admittedly took place during night time at about 9.45 p.m. Except witness Sibaram Morang (PW8) none of the witnesses accompanied said Sibaram Morang did state before the trial court on oath that they had the opportunity to recognize the assailant, therefore, according to Mr. A.M. Majumder, learned senior counsel, the claim of PW 8 that he recognized the assailant, the appellant herein through means of the torch light which was at that time with him though a material piece of evidence, to take a consistent view that the appellant Kamal Gogoi had been recognized by PW8, Sibaram Morang, the informant with the help of the torch that was with him at the relevant point of time, cannot be believed in absence of production of torch light at the trial. According to Mr. Mazumder, learned senior counsel, this material lacuna appearing in the face of the record, cannot take the place of proof under section 307, IPC against the appellant. In respect of registration of Dhemaji P.S. Case No. 104 of 1995 under Section 394 it is stated by PW 8, Sibaram Gogoi, the informant that on 30.6.1995 at 9.45 p.m. one of the constables of Dhemaji Police Station appeared before the police station and complained that appellant-Kamal Gogol along with Piti Gogoi, Pankaj Konwar and Bhaikon Dihingia @ Pranjal had been to his house and had taken away the entire salary after assaulting him mercilessly. On this information, the Officer-in-Charge of Dhemaji Police Station entrusted investigation of the case and he immediately along with Binanda Baruah, Gyandhar Deuri and Naren Sonowal all constables proceeded to the place of occurrence. This piece of evidence is not supported by any documentary evidence whatsoever. The prosecution was. unable to prove the concerned G.D. Entry in respect of information given by the Constable, nor the first information report lodged by the constable, nor any commanding note of the Officer-in-Charge of the Dhemaji Police Station concerned in regard to movement of PW8 to the place of occurrence along with some other constables namely, Binanda Baruah Gyandhar Deuri and Naren Sonowal. Unless the fact of institution and lodgment of FIR basing which Dhemaji P.S. case No. 104 of 1995 was stated to have been registered, the factum of proceed to the place of occurrence by PW 8 along with constables named above remained not proved by the prosecution. Unless the fact of institution and lodgment of FIR basing which Dhemaji P.S. case No. 104 of 1995 was stated to have been registered, the factum of proceed to the place of occurrence by PW 8 along with constables named above remained not proved by the prosecution. It also failed to prove the G.D. Entry as well as the command in respect of institution of the case and proceed to the place of occurrence as well Mr. Mazumder, therefore, taking these material defects in the prosecution case urges this court that the case of the prosecution cannot stand in its way in view of lapses on the part of the prosecution to prove these facts. From the materials available in the case record and the concerned case diary this court is unable to locate such FIR lodged by one of the constables of Dhemaji Police Station in regard to his assault on the night of 30.6.1995 at 9.45 p.m. by the appellants along with others whose names are indicated herein before the G.D entry in respect of filing of the first information report by one of the constables and the G.D.E. commanding PW 8 to proceed to the place of occurrence after registration of the case. These in combination make the prosecution case doubtful whether on the relevant night and time Sibaram Morang (PW 8) did actually proceed to the place of occurrence on connection with the investigation of the Dhemaji P.S. case No. 105 of 1995 or not. 6. Mr. Munir, learned Addl. P.P., representing the State of Assam, the sole respondent also concedes that except a mention of the case in the First Information Report, there is nothing on the record to show that such a case had actually been registered on the information of the constable concerned for his assault by Kamal Gogoi, the appellant herein and the other accused, who were facing the trial in this case. Therefore, according to Mr. Mazumder, learned senior counsel that the factum of proceed of PW8 to the place of occurrence along with other constables remains doubtful and, therefore, the conviction awarded by the trial court cannot sustain in law. In respect of recognition, of the appellant except PW 8, the informant himself alone has come forward to say that he had the opportunity to recognize the appellant when he tried to assault PW 8, Sibaram Morang. In respect of recognition, of the appellant except PW 8, the informant himself alone has come forward to say that he had the opportunity to recognize the appellant when he tried to assault PW 8, Sibaram Morang. The witnesses who accompanied PW 8 categorically stated in their evidence that due to darkness they were unable to recognize assailant/assailants. Now, the question, which comes in whether evidence of PW 8, Sibaram Morang alone is sufficient to warrant conviction under Section307 IPC against the appellant in absence of proof of proceeding of himself to the place of occurrence along with others in connection with the investigation of Dhemaji P.S. Case No. 104 of 1995. if we take the evidence on record, recorded on oath by the trial court, it would be seen that when he along with other constables arrived at the back side of the temple situated at the daily bazaar, he found appellant-Kamal Gogoi, Piti Gogoi, Pankaj Konwar and Bhaikon Dihingia @ Pranjal standing at the place being armed with dao, lathi, etc. it is also stated by him that seeing/noticing them being armed with lathi, dao, etc., he immediately caught hold of Piti Gogoi and handed over to reserve officer who accompanied them. When he tried to catch/apprehend the appellant herein appellant tried to assault him with the help of the dao in his hand but as a result going back a step, the blow fell on his right-hand shoulder over the badge of his uniform. As a result he sustained minor injury on his right shoulder. Kamal Gogoi being remained unsatisfied with the first blow then and there dealt two blows one on the neck and other on the chest. When he raised alarm, the accompanied constables assembled at the place but in the meantime, the assailants managed to flee away from the place, being injured he was taken to hospital by the reserve officer who accompanied him and he was treated by Dr. P.K. Baruah (PW 4). It is further stated that he was undergoing treatment for 18 days together. It is also stated in his evidence that Investigating Officer seized the golden badge from him vide Ext. 1, the seizure memo. He proved the signature, Ext. 4 (1). So, from this piece of evidence it is noticed that he alone recognized the appellant herein and none else. It is also stated in his evidence that Investigating Officer seized the golden badge from him vide Ext. 1, the seizure memo. He proved the signature, Ext. 4 (1). So, from this piece of evidence it is noticed that he alone recognized the appellant herein and none else. PW 4, the doctor also discovered two numbers of injuries on the person of PW8 which were all simple in nature. He discovered a cut injury of 3" x 1/2 x 1/2 of clear margin on the ulna aspect of left wrist joint with active bleeding. He also discovered another cut injury of size 3" x 1/2" x 1/2" over the chest on the sterno-clavicular joint with active bleeding. Mr. A.M. Majumder taking assistance of the evidence of PW4, Dr. P.K Baruah put emphasis that the injuries discovered by the doctor on the person of the injured (PW8) cannot give an indication that these injuries can result death of the person and, therefore, the conviction under section 307, IPC could not be sustainable in law. Admittedly, these injuries were on ulna aspect of left wrist joint and on the chest which of size 3" x 1/4 x 1/4". Both the injuries, though one was caused on the vital part of the person of PW8, might not have resulted death of PW8, the first informant. Though chest is a vital part of the human physiology, the injury sustained thereat and discovered by Dr. P.K. Baruah, PW4 cannot, however, cause death in the ordinary course of nature. It was argued by Mr. Majumder, learned senior counsel that conviction under section 307, IPC of the appellant is erroneous and illegal. The learned trial court though framed charges under Sections 353 and 427, IPC was unable to record conviction under any of the charges against the accused and accordingly. They were all acquitted. 7. It is already indicated herein before that PW8, the first informant did recognize the appellant with the help of torch light, which he has carrying at that time. The Investigating Officer though seized the said torch light during investigation of the case, the same was not produced before the court at the trial for its recognition either by PW8, the first informant or by the investigating Officer. The Investigating Officer though seized the said torch light during investigation of the case, the same was not produced before the court at the trial for its recognition either by PW8, the first informant or by the investigating Officer. In a catena of decisions in such nature of cases the means of recognition and the weapon of offence are required to be produced at the trial to facilitate the trial court to arrive at a definite conclusion that by means of those materials the assailant is/was recognized and the injured was assaulted. The weapon of offence and means of recognition being not placed during the trial for recognition by those material witnesses, claim of PW8 that he recognized the assailant by means of the torch he was carrying cannot be acceptable. Further, the weapon of offence, which was alleged to have been seized from the possession of the appellant was also not produced at the trial for recognition. This also makes the prosecution case shaky to a considerable extent. 8. Non-production of the weapon of offence as well as the means of recognition coupled with failure to prove institution of Dhemaji P.S. case No. 104 of 1995 and the Command certificate in particular, this court is of considered view that prosecution case suffers a lot at the root, which could not be cured by the prosecution during trial. These primary facts lead to a conclusion that on the relevant date and time of PW 8 did never proceed to the place of occurrence for the investigation or Dhemaji P.S. case No. 104 of 1995. Prosecution case seems to have merged with doubts and the appellant is entitled to (sic.) it. 9. In view of the discussions hereinbefore made the facts and the circumstances of the case and evidence of record, I find grounds to interfere with the impugned judgment and conviction and accordingly the same is interfered with. 10. In the result, the appeal is allowed Impugned judgment and order of conviction and sentence is set aside and quashed. Accused is acquitted on the benefit of doubt. It is informed by the learned counsel for the appellant that the accused is on bail. Bail bond stands discharged. Appeal allowed.