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2013 DIGILAW 212 (GAU)

Babul Lahon v. State of Assam

2013-03-20

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. This appeal is directed against the judgment and order, dated 26.07.2007, passed, in Sessions Case No. 34(J-J) of 2006, by the learned Sessions Judge, Jorhat, convicting the accused-appellant, Babul Lahon, under Section 302 read with Section 34, IPC and sentencing him to suffer imprisonment for life and pay fine of rupees ten thousand and, in default of payment of fine, suffer rigorous imprisonment for a period of six months. The prosecution's case may, in brief, be described as under:- (i) On 27.09.2004, at about 7 am, Hemu Mahali (since deceased), a Line Chowkidar of Jogibheta Tea Estate, informed P.W. 1, Manager of the said Tea Estate, that a dead body was lying at Section No. 6 of the said Tea Estate and, on being asked by P.W. 1, as to what had happened, Hemu Mahali (since deceased) informed P.W. 1 that on the previous day, i.e., on 26.09.2004, at about 1 pm, one unknown person was assaulted by the present appellant, Babul Lahon, along with 2 to 3 others and that the said occurrence of assault by Babul Lahon and others had been seen by Amar Bhumij (P.W. 2), who was also a Line Chowkidar. On being so informed about the occurrence, P.W. 1 lodged a written information at Lahdoigarh Police Outpost. The information, so given by P.W. 1, was entered into the General Diary of the said Police Outpost, the relevant GD Entry being GD Entry No. 569, dated 27.09.2004, and the same, on being forwarded to Teok Police Station, came to be registered as Teok Police Station Case No. 82/2004, under Sections 302/34, IPC, against accused Babul Lahon and others. (ii) During investigation, police visited the place of occurrence, held inquest over the said dead body, got post mortem examination performed on the said dead body and, on completion of investigation, laid charge sheet, under Sections 302/379/201/34, IPC, against the accused-appellant, Babul Lahon, and two others, namely, Dulu Bora and Jitu Gogoi. 2. At the trial, when charges, under Sections 302, 379 and 201 read with Section 34, IPC, were framed, all the accused pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 7 witnesses. 2. At the trial, when charges, under Sections 302, 379 and 201 read with Section 34, IPC, were framed, all the accused pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 7 witnesses. The accused aforementioned were, then, examined under Section 313, Cr PC and, in their examinations aforementioned, they denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial. No evidence was adduced by the defence. 4. Having found that the evidence, as against accused Dulu Bora and accused Jitu Gogoi, were insufficient, the learned trial Court acquitted them accordingly. Having, however, found sufficient evidence against the accused-appellant, Babul Lahon, under Section 302 read with Section 34, IPC, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, which has been passed against him, accused-appellant, Babul Lahon, has preferred this appeal. 5. We have heard Mr. J. Islam, learned amicus curiae, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 6. While considering the present appeal, what needs to be noted is that according to the doctor (P.W. 5), who had, on 28.09.2004, admittedly, conducted post mortem examination on one Gauri Shah, he (P.W. 5) found as many as three incised wounds on the left cheek mandible and neck. The doctor (P.W. 5) opined that death was caused due to shock and hemorrhage as a result of the ante mortem injuries sustained by the said deceased. 7. The findings of the doctor and his opinion with regard to the nature of injuries and the cause of death were not in dispute. We, too, do not notice anything inherently incorrect or improbable in the evidence of the doctor. We, therefore, hold that Gauri Shah did sustain incised wounds as described by the doctor (P.W. 5) and the shock and hemorrhage, which resulted from the said injuries, caused his death. 8. The questions, however, remain as to whether the accused-appellant was the one, who had caused death of Gauri Shah and, if so, whether causing of death was intentional? 9. 8. The questions, however, remain as to whether the accused-appellant was the one, who had caused death of Gauri Shah and, if so, whether causing of death was intentional? 9. Our quest for answer to the above questions, brings us to the evidence of P.W. 1, Manager of the said Tea Estate, who has, admittedly, not seen the occurrence of assault on Gauri Shah; rather, according to the evidence of P.W. 1, he had been informed by Hemo Mahali (since deceased) that he had been reported by P.W. 2 that P.W. 2 had seen the present appellant, along with 2-3 others, assaulting one unknown Bihari man and the dead body of the said victim was lying at Section No. 8. It is also in the evidence of P.W. 1 that on the basis of the information, so received, he lodged an Ejahar at Teok Police Station, which, as already indicated above, has come to be registered as First Information Report of the case. 10. From the evidence of P.W. 1, it is more than abundantly clear that he was not a witness to the occurrence of assault on Gauri Shah nor does he have any personal knowledge that the accused- appellant was the one, who was, in any way, involved in the occurrence of assault on Gauri Shah. 11. As far as Hemo Mahali (since deceased) is concerned, apart from the fact that he, having died, could not be examined as a witness, the fact remains that even he was, admittedly, not a eye witness to the occurrence of assault on, and killing of, Gauri Shah inasmuch as he was informed about the alleged assault on Gauri Shah by PW2. 12. There were, according to the case laid before the learned trial Court, two witnesses, namely, Amar Bhumij (P.W. 2) and Ajit Nayak (P.W. 3). Both these witnesses have given evidence to the effect that they had seen some persons assaulting a man in the garden, but they could not recognize the assailants and none of these two witnesses could boldly say that it was the accused-appellant, who had been seen by them to have assaulted the said unknown man. Both these witnesses, namely, P.W. 2 and P.W. 3, were, therefore, declared hostile by the prosecution. 13. Both these witnesses, namely, P.W. 2 and P.W. 3, were, therefore, declared hostile by the prosecution. 13. While cross-examining the two witnesses aforementioned, the previous statements of these two witnesses, allegedly made before the Investigating Officer, were put to them; but both of them denied to have made such statements as were attributed to them. 14. The learned trial Court, however, to our anguish, completely relied on the previous statements of these two witnesses for the purpose of founding conviction of the accused appellant. The learned trial Court ought to have noted and borne in mind that the previous statement, recorded by an Investigating Officer during investigation, is not substantive evidence and could have been used, at best, for the purpose of contradicting the evidence, which P.W. 2 and P.W. 3 had given in the Court. 15. The substantive evidence of P.W. 2 and P.W. 3 were the evidence, which they had given at the trial. At the trial, when none of these two witnesses claimed that they had witnessed the present appellant assaulting or killing Gauri Shah, then, merely because of the fact that the evidence, given by P.W. 2 and P.W. 3, were not found by the learned trial Court to be convincing, the accused-appellant could not have been convicted basing his conviction on the previous statements of P.W. 2 and P.W. 3. 16. It also needs to be pointed out that apart from the fact that the previous statement of a witness, recorded under Section 161, Cr PC, is not substantive evidence and cannot, therefore, become the basis for conviction, there is no guarantee that what the two witnesses had stated, during investigation, was the truth. In no way, therefore, the previous statements of P.W. 2 and P.W. 3 could have been made the foundation for convicting the accused-appellant and if the previous statements, attributed to these two witnesses, were kept excluded from the purview of consideration as substantive evidence, their remains, admittedly, no substantive evidence on record showing, far less proving, that the accused-appellant was the one, who, either alone or along with others, had assaulted and caused death of Gauri Shah. 17. 17. Situated thus, we have no hesitation in holding that the prosecution had miserably failed to bring home the charges, which had been framed against the accused-appellant, and he could not have been legally convicted of the offence under Section 302 read with Section 34, IPC. 18. Because of what have been discussed and pointed out above, this appeal succeeds. The impugned conviction of the accused- appellant and the sentence passed against him, by the judgment and order, under appeal, are hereby set aside. The accused- appellant is held not guilty of the offence under Section 302 read with Section 34, IPC and he is acquitted of the same. 19. Let the accused-appellant be set at liberty, forthwith, unless he is required to be detained in connection with any other case. 20. Let the learned amicus curiae be paid a sum of Rs. 5,000/- for his valuable assistance rendered to the Court. Send back the LCR.