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2011 DIGILAW 942 (GAU)

Sunil Kr. Gurung v. State of Assam

2011-12-01

AMITAVA ROY, U.B.SAHA

body2011
Amitava Roy, J;- 1. In challenge is the judgment and order dated 24.8.2007 rendered by the learned Addl. Sessions Judge (FTC) at Dibrugarh in Sessions Case No. 105/2002 convicting the accused/appellant under section 302, IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 10,000, in default, to suffer rigorous imprisonment for further six months. 2. We have heard Mr. P.J. Phukan, learned amicus curiae for the appellant and Mr. Z. Kamar, learned Public Prosecutor, Assam for the respondent. 3. One Samu Mura lodged an FIR with the Officer-in-Charge, Rajgarh Police Outpost alleging that while his daughter Mariyam Mura was approaching her home on her return from the Karangani Tea Estate, her husband Sri Sunil Gurung (accused/appellant) assaulted her with a 'dao' following which she succumbed to the injuries sustained. Tingkhong P.S. Case No. 76/2001 under section 302, IPC was registered on receipt of the aforementioned FIR and on the completion of the investigation, charge sheet under the said section of law was laid against the accused/appellant. He was also charged under the same provision to which he pleaded 'not guilty'. At the trial, the prosecution examined seven witnesses. In course of his examination under section 313, Cr.PC, the accused/appellant adopted the plea of denial. The court examined three witnesses from its side. By the impugned judgment and order the accused/appellant has been convicted and sentenced as above. 4. Before analyzing the arguments advanced on behalf of the parties, it would be appropriate to have a brief survey of the evidence on record. PW1, Chandrakanta Bordoloi stated that neither the deceased nor the accused/appellant was known to him. He only proved the signature on the seizure list, Exhibit-1. He, however, conceded that he was unaware as to what was seized thereby. In cross-examination, he disclosed as well that he did not see the person(s) from whom the seizure had been made. 5. PW2, Jogesh Munda, brother of the deceased stated that he had come to learn about the incident from one Bapu Murah, Chowkidar of the Karangani Tea Estate who disclosed to him that the accused/appellant was the assailant. This witness stated to have visited the police station where he found the dead body of his sister. 6. 5. PW2, Jogesh Munda, brother of the deceased stated that he had come to learn about the incident from one Bapu Murah, Chowkidar of the Karangani Tea Estate who disclosed to him that the accused/appellant was the assailant. This witness stated to have visited the police station where he found the dead body of his sister. 6. PW3, Jyoti Gogoi stated that on that particular day while he was sitting in the police station, the accused/appellant appeared there with a pruning knife in hand and confessed that he had thereby assaulted his wife (deceased). The said pruning knife was seized vide Exhibit-1 which this witness identified to be Mat. Exhibit-1 in court. 7. PW4, Sanu Mura, the informant as well as the father of the deceased stated that the accused/appellant was her husband and that he had come to learn that his daughter had been murdered by him (accused/appellant). Though he owned the FIR, he conceded that he did not know how his daughter received the injuries and that who had killed her. 8. PW5, Matia Mura reiterated the evidence of PW2 that one Bapu Mura had reported to him'that the deceased had been assaulted by her husband inside the Karangani Tea Estate and that when he reached the place of occurrence he found her lying on the garden road. 9. PW6, Sri Nila Chiring is the Investigating Officer. He proved, amongst others, the FIR (Exhibit-2) and the seizure list (Exhibit-1) whereby the pruning knife had been seized. 10. PW7, Dr. R. Chaliha found the following injuries on the dead body in course of the postmortem examination : "Injuries: 1. An incised wound over the back on the left side measuring 19 x 4 cm cutting the scapular, transversely placed. 2. An incised wound over the left upper back 10 x 4 cm horizontally placed and cutting the first thoracic vertebrae. 3. An incised wound over the back of the middle of the ribs measuring 6x4 cm muscle deep. 4. An incised wound over the middle of the neck extending across to the left angle of the mouth measuring 37 x 5 cm cutting right ear, mandible, maxilla, upper teeth and first cervical vertebrae." This witness opined that the death was as a result of the injuries sustained. 11. 4. An incised wound over the middle of the neck extending across to the left angle of the mouth measuring 37 x 5 cm cutting right ear, mandible, maxilla, upper teeth and first cervical vertebrae." This witness opined that the death was as a result of the injuries sustained. 11. The evidence of the court witnesses, namely, Ratan Maji, Pancham Mura and Bapu Mura do not at all support the case of the prosecution. CW3, Bapu Mura the person who, according to PW2 and PW5, had informed them about the assault and murder of the deceased by the accused/appellant turned a volte face and on oath stated that he did not know as to how Marium had died or to who had killed her. 12. The learned amicus curiae has argued that on an assessment of the evidence of the prosecution witnesses it is apparent that the charge levelled against the accused/appellant has remained unproved and, therefore, the impugned judgment and order, if allowed to stand, would a travesty of justice. The learned Public Prosecutor, on the other hand, has submitted that the fact that the accused/appellant, amongst others, had led the police to the place of occurrence where the dead body was lying immediately after the incident along with the other evidence taken together justifies his conviction and, therefore, no interference with the impugned judgment is called for. 13. Upon hearing the learned counsel for the parties and on a consideration of the materials on record, we are not persuaded by the plea taken on behalf of the prosecution. An analysis of the testimony of the prosecution witnesses as endeavoured hereinabove leads to the irresistible conclusion that no tangible evidence in support of the charge is forthcoming. Not only the disclosures allegedly made by the accused/appellant before the police at the police station are inadmissible in law to support the charge, noticeably, Sri Bapu Mura who, according to PW2 and PW5, had informed them of the incident deposed in clear terms that he was totally unaware as to how Marium had died or who had killed her. This, in our view, renders a fatal blow to the prosecution case dismantling the same as a whole. 14. In the above view of the matter, we are of the unhesitant opinion that the prosecution has failed to prove the charge against the accused/appellant and, therefore, he is entitled to acquittal. This, in our view, renders a fatal blow to the prosecution case dismantling the same as a whole. 14. In the above view of the matter, we are of the unhesitant opinion that the prosecution has failed to prove the charge against the accused/appellant and, therefore, he is entitled to acquittal. We order accordingly. 15. The impugned judgment and order is set aside. The appeal is allowed. The accused/appellant would be set at liberty forthwith. 16. We record our appreciation for the assistance rendered by Mr. P.J. Phukan, learned amicus curiae in disposing of the instant appeal and direct payment of his professional fee of Rs.5,000. The State Government would release the payment forthwith.