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2010 DIGILAW 81 (GAU)

Birendra Gour v. State of Assam

2010-02-05

AMITAVA ROY, C.R.SARMA

body2010
JUDGMENT Amitava Roy, J. 1. The conviction and sentence recorded by the Judgment and Order dated 30.04.2004 passed by the learned Sessions Judge, Cachar, Silchar in Sessions Case No. 19/2003, whereby the accused-Appellant has been found guilty of an offence under Section 302 of the Indian Penal Code and awarded sentence of rigorous imprisonment for life, as well as of fine of Rs. 5000/-. in default to undergo rigorous imprisonment to further 3 (Three) months is under challenge in the instant appeal from the Jail. We have heard Mr. A.K. Phukan, learned Amicus Curiae for the accused-Appellant and Mr. D. Das, learned Public Prosecutor, Assam for the State. 2. The run up of facts to the instant appeal, in short, is necessary. Lakhipur P.S. Case No. 170/2000 under Sections 302/34 IPC was registered on an FIR dated 26.06.2000 lodged by one Bangshilal Urang with the Incharge, Joypur Police Outpost alleging that in the previous evening that is, 25.06.2000 his brother Kalababu Urang while returning from Ainachara Market had been attacked by some miscreants with Dao and that he had succumbed to the injuries sustained. The FIR disclosed that the informant had been apprised of the incident by his co-villagers Shri Harilal Urang and Shri Sudur Gore who stated to have seen the deceased returning home with the accused-Appellant, also a resident of the same village. The informant in the FIR, on this premise expressed his doubt that the accused-Appellant might have caused his brother's death in-collusion with other accused. 3. On the completion of the investigation that followed, the police submitted charge-sheet under the above provisions of law against the accused-Appellant. He was also charged thereunder to which he pleaded "not guilty" and claimed to be tried. 4. The prosecution examined 5 (five) witnesses including the investigating officer and the doctor who had performed the postmortem examination. After the evidence of the prosecution witnesses was recorded, the statement of the accused-Appellant under Section 313 of the Code of Criminal Procedure was recorded. The learned trial Court on a consideration of the materials on record, thereafter convicted and sentenced the accused-Appellant as above. 5. The learned Amicus Curiae has strenuously argued that the evidence adduced by the prosecution taken together does not prove the charge against the accused-Appellant beyond all reasonable doubt and therefore his conviction and sentence ought to be interfered with in the interest of justice. 5. The learned Amicus Curiae has strenuously argued that the evidence adduced by the prosecution taken together does not prove the charge against the accused-Appellant beyond all reasonable doubt and therefore his conviction and sentence ought to be interfered with in the interest of justice. According to him, the so-called eye witnesses, PW-1 and PW-3 having contradicted with each other on material particulars, the sub-stratum of the prosecution case was destroyed thereby and therefore, the impugned Judgment and Order ought to be set aside. He further argued that neither the FIR nor the seizure of the weapon of assault has been proved in accordance with law and therefore considering the state of evidence on record the view taken by the learned trial Court against the accused-Appellant is apparently erroneous. 6. The learned Public Prosecutor, in reply has argued that the evidence of PW-1 and PW-3, if cumulatively read, proves the guilt of the accused-Appellant and therefore the impugned Judgment and Order is valid in law. According to him, the evidence of PW-2 and PW-4 proved the FIR, as well as the seizure of the Dao by which the offence had been committed by the accused-Appellant. Referring to the evidence of the doctor, the learned Public Prosecutor has urged that as the findings recorded by him in course of the post-mortem examination wholly tally with the ocular evidence, the conviction and sentence recorded by the learned trial Court ought not to be interfered with in the interest of justice. Before we record our final conclusions, it would be appropriate to conduct a brief survey of the evidence on record. 7. PW-1 Shri Harilal Urang stated on oath that in the afternoon of the date of occurrence i.e. 25.06.2000 r e had been returning from the Ainachara Market alongwith Birendar, Kalababu (the deceased) and Bagal Babu. According to him, the accused-Appellant Birendar Gour and the deceased were proceeding ahead of them. The witness testified that at that time he saw from a distance that a quarrel had ensued between the accused-Appellant and the deceased, where after the former started assaulting the latter with a Dao. He proved the seizure of the Dao vide Ext. 1 with his signature Ext. 1(1) thereon and identified the seized weapon of assault as M. Ext. 1. He also proved the Inquest Report, Ext. 2. He proved the seizure of the Dao vide Ext. 1 with his signature Ext. 1(1) thereon and identified the seized weapon of assault as M. Ext. 1. He also proved the Inquest Report, Ext. 2. In cross-examination, this witness disclosed that the incident had seen by him from a distance of about 40 cubits and that at that point of time daylight had been faded out. He further disclosed that though the deceased being injured was gasping they did not either touch the body or ask him about the incident. He stated to have informed Bansilal Urang, the cousin of the victim of the incident. In connection with the seizure, he however stated that the police had obtained his signature or a blank paper, whereafter something was written thereon. He confirmed the injuries on the head and face of the deceased. 8. PW-2 Shri' Bansilal Urang, the informant also deposed that on the date of the occurrence as he was returning from the market, PW-11 Harilal Urang reported to him that the accused-Appellant had assaulted the deceased, for which he had died. The witness thereafter rushed to the place of occurrence to find the dead body there and accordingly, thereafter he informed the police. Though, he made a statement with regard to the seizure of the Dao, he did not prove the seizure list. In cross-examination this witness conceded that he was not aware of the name of the writer of the FIR and also expressed ignorance of the contents of the said document. 9. PW-3 Sri Girindra Gore was declared hostile by the prosecution. In his examination-in-chief, however he stated that on the date of the occurrence he alongwith Harilal Urang (PW-1) and the deceased were returning from the Ainachara Market, when the accused-Appellant overtook them from behind and proceeded ahead of them. According to this witness after proceeding a little distance, they found the deceased lying dead, but the accused-Appellant was not located there. In his cross-examination by the prosecution, he denied the suggestion to have stated before the police that he saw the deceased and the accused-Appellant quarreling between themselves and that the accused-Appellant had assaulted the deceased with a Dao. He admitted to have asked Harilal (PW-1) to inform Bansilal, brother of the deceased about the incident. This witness was not cross-examined by the defence. 10. PW-4 Shri Prakash Singh is the investigating officer. He admitted to have asked Harilal (PW-1) to inform Bansilal, brother of the deceased about the incident. This witness was not cross-examined by the defence. 10. PW-4 Shri Prakash Singh is the investigating officer. He deposed in two phases, in course of which he proved amongst others, the FIR (Ext. 4), Inquest Report (Ext. 2) and the post-mortem report (Ext. 3). Noticeably, this witness did not prove the seizure list, Ext. 1, though he identified the seized Dao, M. Ext. 1. On being confronted, this witness with reference to the case diary however confirmed the statement of PW-3 to the effect that he had seen the deceased and the accused-Appellant quarreling and the latter assaulting the former with a Dao. 11. PW-5 Dr. H. Sarma, recited about the following injuries found by him on the dead body in course of the post-mortem examination as hereunder: (1) Incised would 4 2cm skin deep over the left forearm of dorsal surface. (2) Incised would little obliquely place over the right side of the face lateral to angle of the mouth measuring 6 x 1 x 1cm (see diagram). (3) Incised would over the left side of the face placed obliquely measuring 12x1x1.5cm cutting the mandible completely. (4) Incised would over the left side of the vertex placed obliquely measuring 12 x 3 x 3.5cm cutting the parietal bone and exposing the brain. A flap of this bone measuring 3 x 2.5cm oval shaped found separated. This witness opined that death had been caused due to haemorrhage and shock resulting from the incised wounds suffered by the deceased. 12. The evidence of PW-1 and PW-3 when read together makes it apparent that according to the prosecution, the FIR had been lodged by PW-2 after being informed of the incident and also of the assault by PW-1. If the evidence of PW-1 is accepted on its face value, we fail to understand as to why the FIR did not in clear terms disclose the name of the accused-Appellant to be the assailant. On the other hand, a bare reading on said document would reveal that it was sought to be represented therein that the deceased had been attacked by some miscreants and that the anticipation of the involvement of the accused-Appellant, according to the informant was as he was found to be accompanying the deceased at the relevant point of time. On the other hand, a bare reading on said document would reveal that it was sought to be represented therein that the deceased had been attacked by some miscreants and that the anticipation of the involvement of the accused-Appellant, according to the informant was as he was found to be accompanying the deceased at the relevant point of time. Moreover, the informant also feigned ignorance of the contents of the said document. Though the investigating officer proved the FIR as Ext. 4, the signature of the author had remained unproved. On the above considerations, we find it difficult to place the reliance on this document to represent the earliest and correct version of the prosecution case. 13. In his examination-in-chief PW-3 did not implicate accused-Appellant to be the perpetrator of the crime and he even went to deny the suggestion that he had stated before the police to have seen the accused-Appellant and the deceased quarreling on the road before the former had assaulted the latter with a Dao. Of course on being confronted, the I/C confirmed that the PW-3 had made such a statement. True, it is that only because PW-3 had been declared to be a hostile witness, his evidence as a whole need not be effaced and that his testimony as found otherwise compatible with the other materials on record may be taken note of by the Court. The above notwithstanding, the evidence of PW-3 appears to be inconsistent in substance. Though, PW-3 has in categorical terms insisted of the presence of PW-1 alongwith him at the time of the occurrence, he (PW-1) has omitted to mention about his (PW-3) presence with him at the relevant point of time. The incident, admittedly according to the prosecution, had occurred in the month of June of the year at about 7 P.M. PW-1, in course of his cross-examination claimed to have seen the incident from a distance of about 40 cubits. Considering the month of the year and the time, at which the incident had occurred, it is difficult for this Court to accept that sufficient daylight was then subsisting to permit the sighting of the incident and the identification of the assailant and the assaulted. Moreover, according to the PW-1, the deceased was pro needing alongwith him and one Bagal Babu on the road. Moreover, according to the PW-1, the deceased was pro needing alongwith him and one Bagal Babu on the road. It is not clear from the evidence as to when and how the deceased had gone ahead of them alongwith the accused-Appellant, whereafter the quarrel had started and the assault followed. It is also not clear as to why, though according to the evidence of PW-1, the injured did not succumb immediately to his injuries, no endeavour was made by him or any other of his companions to ascertain from him about the identity of the assailant. 14. Though, the seizure list Ext-1 indicates that a Dao had bee n seized in presence of the witnesses, namely PW-1, PW-2 and PW-3 as noted hereinabove, none except PW-1 has proved his signature on the seizure list. He as well in his cross-examination stated to have put his signature on a blank paper as required by the police and stated that he did not know the contents there of which were inserted thereafter. 15. We have noticed the injuries mentioned by the medical witness said to have been found on the dead body of the deceased, which per se appears to have been caused by a sharp weapon. The same ipso facto, in view of the state of evidence adduced by the prosecution in the instant case, are not enough to connect the accused-Appellant with the crime. For the same reason, the affirmation of the investigating officer of the statement of the PW-3 to have seen the deceased and the accused-Appellant quarreling whereafter the accused-Appellant had assaulted the deceased with the Dao is not of any decisive significance. 16. On an over-all consideration of the evidence as a whole, we are not convinced that the prosecution had been able to prove the charge beyond all reasonable doubt. On the other hand in the attending facts and circumstances, having regard to the deficiency of the evidence on record, the accused-Appellant, in our opinion is entitled to the benefit of doubt. In the above view of the matter, the appeal is allowed and the impugned Judgment and Order is set aside. The accused-Appellant is ordered to be set at liberty forthwith. 17. We hereby record our appreciation for the assistance rendered by learned Amicus Curiae and order for payment of his fee which we assess at Rs. 3,500.00. In the above view of the matter, the appeal is allowed and the impugned Judgment and Order is set aside. The accused-Appellant is ordered to be set at liberty forthwith. 17. We hereby record our appreciation for the assistance rendered by learned Amicus Curiae and order for payment of his fee which we assess at Rs. 3,500.00. The Registry would send down the records and take consequential steps immediately. Appeal allowed