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2013 DIGILAW 736 (GAU)

Ashim Kr. Gogoi v. State of Assam

2013-10-07

BROJENDRA PRASAD KATAKEY, PRASANTA KUMAR SAIKIA

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JUDGMENT Brojendra Prasad Katakey, J. 1. The criminal investigation was set in motion on lodging of the First Information Report (hereinafter referred to as FIR) (Ext. 1) by Sri Pranab Gogoi (PW 1) with the Officer In-Charge of Geleky Police Station alleging that he has been informed by Sri Manik Saikia (PW 5) that the first informant's brother Ajit Gogoi has been assaulted by his son (appellant Ashim Gogoi), as a result of which he received serious injuries on his person and lying unconscious, who was thereafter, on 10.3.2003, taken to Joysagar Civil Hospital and died there. On the basis of the said information, Geleky Police Station Case No. 9/2010 under Section 302 IPC has been registered and accordingly the investigation has commenced. During investigation, dead body was sent for post mortem examination, the statements of the persons acquainted with the facts have been recorded under Section 161 CrPC, apart from recording the statements of the few witnesses under Section 164 CrPC. One iron rod was also seized on 12.3.2003 from the residence of the first informant (Pranob Gogoi-PW 1) on being produced by him. On completion of the investigation, charge-sheet was filed against the appellant u/s. 302 IPC and the case was committed for trial to the court of Sessions by the learned Judicial Magistrate vide order dated 26.6.2003, the case being exclusively triable by the court of Sessions. Charge under Section 302 IPC, thereafter, was framed by the learned Sessions Judge, Sibsagar, which when read over and explained to the accused-appellant, he denied the charge and claimed to be tried. Hence the trial commenced. 2. During the course of trial, the prosecution in order to bring home the charge, framed against the accused-appellant, examined 10 witnesses, namely, Sri Pranob Gogoi, first informant (PW 1), Sri Pradip Gogoi (PW 2), Sri Hema Gogoi (PW 3), Sri Jagno Ram Gogoi (PW 4), Sri Manik Sakia (PW 5), Sri Mohon Rajkhowa (PW 6), Dr. Akhil Hazarika (PW 7), Sri Ranjit Chetia (PW 8), Sri Subhas Chandra Sonowal, Officer-in-Charge of Geleky Police Station (PW 9) and Sri Rameswar Bora, the Investigating Officer (PW 10). PWs 2, 6 and 8 claimed to be the witnesses to the occurrence. PW 1, PW 4 and PW 5 claimed that dying declaration was made by the deceased in their presence. PW 1 also claims that there was an extra judicial confession made by the accused. 3. PWs 2, 6 and 8 claimed to be the witnesses to the occurrence. PW 1, PW 4 and PW 5 claimed that dying declaration was made by the deceased in their presence. PW 1 also claims that there was an extra judicial confession made by the accused. 3. The doctor (PW 7) who conducted the autopsy, proved the post mortem examination report, which has been marked as Ext. 7. After the prosecution witnesses were examined and cross-examined, though the defence was given the opportunity to examine witnesses, he, however, declined to do so. The statement of the accused u/s. 313 CrPC was thereafter recorded. 4. The learned Addl. Sessions Judge (FTC), upon appreciation of the evidence on record, vide judgment dated 15.9.2008 passed in Sessions Case No. 98(S-S)/2003, convicted the appellant u/s. 302 IPC and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default to undergo rigorous imprisonment for further term of 3(three) months. Hence, the present appeal challenging the said conviction. 5. We have heard Ms. B. Baruah, learned counsel appearing for the appellant and Mr. B. Dutta, learned Addl. Public Prosecutor appearing for the State-respondent. 6. Referring to the deposition of PW 2, 4 and 6, who claimed to be the eye witnesses to the occurrence, it has been submitted by the learned counsel for the appellant, that these three witnesses do not support each other, inasmuch as while PW 2 and 4 claimed that they were coming together on a bicycle towards the place of occurrence, PW 2 claims that he saw the accused-appellant giving blows with the help of iron rod on the person of the deceased, which however, has not been supported by PW 6 in his evidence, who has stated that he has not seen the accused-appellant giving any blow on the person of the deceased. It has also been submitted that PW 8 has in his statement stated that it was he who came to the place of occurrence and saw the accused giving blows by the iron rod on the person of the deceased and when he told the accused not to give any further blow, he left the place and, thereafter, PW 4 and PW 6 came to the place of occurrence. According to the learned counsel the version of PW 2 and PW 6 that they saw the accused-appellant giving blows on the person of the deceased cannot be believed. The learned counsel further submits that the version of PW 8 also cannot be believed as PW 2 and PW 6 do not support his version as according to PW 2 and PW 6 they reached the spot prior to PW 8, who was thereafter called by them and by that time the accused-appellant left the place. 7. The learned counsel, relating to the dying declaration made, has submitted that the prosecution story relating to making of such dying declaration in presence of PW 1, PW 4 and PW 5, cannot be believed because of the positive evidence of PW 6 that the deceased, because of the injury sustained by him, was not in a physical state to speak. It has also been submitted that the making of dying declaration, for the said reasons, before the PW 1, also cannot be believed as the person who was not in a physical state to speak, would make such statement afterwards before the PW 1. It has been submitted that in fact in the FIR it has stated that the deceased was lying unconscious by the side of the road. The learned counsel, therefore, submits that the story put forward by the prosecution relating to making of dying declaration is also not believable. 8. Ms. Baruah, learned counsel, relating to the alleged extrajudicial confession made by the accused before the PW 1, also submits that the said version is not believable, there being no corroborative evidence on record, more so when the auto-rickshaw driver who carried the deceased to the hospital and in whose presence the extra judicial confession was allegedly made, has not been examined by the prosecution, who in fact has been withheld from the Court. The learned counsel further submits that there is only one circumstance left, as proved by the prosecution, i.e. the presence of the accused in the place of occurrence, which would not be sufficient to record conviction against the appellant, there being no other circumstance proved pointing to the guilt of the accused-appellant alone and no one else. The learned counsel submits that the judgment of conviction recorded by the learned Addl. The learned counsel submits that the judgment of conviction recorded by the learned Addl. Sessions Judge, therefore, needs to be set aside and the appellant is to be set at liberty. 9. The learned Addl. Public Prosecutor, on the other hand, has submitted that there are three eye witnesses to the occurrence, viz., PW 2, PW 6, and PW 8 and even if the version of PW 2 and 6 relating to witnessing the occurrence, is not believed, PW 8 having in categorical terms stated above inflicting the blows by the accused-appellant on the person of the deceased, there is no reason as to why his version should not be believed it has also been submitted that, that apart, dying declaration made by the deceased in presence of PW 1, 4 and 5, apart from extra judicial confession made by the accused-appellant before PW 1 have been proved by the prosecution. The learned counsel further submits that it is evident from the evidence of PW 4 and 5 that the deceased at the relevant point of time i.e. at the time of making dying declaration was capable of speaking and hence, the dying declaration made may be the basis for conviction. That apart, according to the learned Addl. Public Prosecutor, extrajudicial confession made by the accused in presence of the PW 1 cannot be ignored. The learned Addl. Public Prosecutor submits that even assuming that the version of PW 2, 6 and 8 relating to witnessing the occurrence and making of dying declaration as stated by PWs 1, 4 and 5, apart from extra judicial confession made, are not believable, there being circumstantial evidence i.e. the presence of the accused alone with his injured father along with the iron rod in hand, seizure of the iron rod by the police and fleeing of accused from the place of occurrence, completing the chain of circumstance, the conviction recorded by the learned Addl. Sessions Judge needs to be maintained. 10. We have considered the submissions advanced by the learned counsel appearing for the parties and also perused the materials available on record, i.e. the evidence adduced by the prosecution, both oral and documentary. 11. The factum of the death of Ajit Gogoi on 10.3.2003 is not in dispute. Dr. Akhil Hazarika (PW 7), who conducted the post mortem examination has proved the post mortem examination report, which is marked as Ext. 7. 11. The factum of the death of Ajit Gogoi on 10.3.2003 is not in dispute. Dr. Akhil Hazarika (PW 7), who conducted the post mortem examination has proved the post mortem examination report, which is marked as Ext. 7. The doctor in his evidence has stated that the following injuries were found on the body of the deceased:- (1) Swelling over right forearms 5" x 3" causing fracture on forearms bones. (2) Fracture on 4th, 5th, 6th ribs on right side causing hemothorax. (3) Lacerated wound 3" x 2" below the left knee. Fracture on 4th, 5th & 6th ribs on right side causing hemothorax on right side. Other organs were healthy. 12. The doctor has also opined that the injury No. 2 is sufficient to cause the death and the injuries are ante mortem in nature and caused by the blunt weapon like Mat. Ext. 1, viz. iron rod. The doctor has not been cross-examined by the defence and hence, the injuries found on the person have not been disputed, apart from that death was homicidal in nature. 13. The question which requires determination, based on the evidence adduced by the prosecution, is whether the appellant is the author of the crime. As discussed above, PW 2, 6 and 8, according to the prosecution, are witnesses to the occurrence. While PW 2 and PW 6 in their deposition have stated that both of them come together on a bicycle towards the place of occurrence, PW 2, however, in his deposition, has stated that he saw the accused-appellant giving blows on the body of the deceased, by means of an iron rod, which version, however, has not been supported by the PW 6, who in his deposition has stated that while they reached the place of occurrence they saw the accused-appellant standing near Ajit Gogoi, the deceased, who was lying in an injured condition. Both the witnesses have stated that, thereafter, the accused-appellant had left the place of occurrence and then they called Ranjit Chetia (PW 8), who came and saw Ajit Gogoi, lying in an injured condition on the road. They have stated that as they had other works, they asked Ranjit (PW 8) to be by the side of Ajit Gogoi and thereafter they left the place of occurrence. 14. They have stated that as they had other works, they asked Ranjit (PW 8) to be by the side of Ajit Gogoi and thereafter they left the place of occurrence. 14. PW 8, who also claims to the eye witness, in his deposition has, however, not supported either the PW 2 or PW 6. He has, in his deposition, stated that he has seen the occurrence i.e. giving blows by the accused by means of an iron rod and when he asked the accused-appellant to stop, he left the place of occurrence on his bicycle and thereafter PW 2 and PW 6 came to the place of occurrence. 15. From the aforesaid discussion, it therefore, appears that PWs 2, 6 and 8 have not supported each other in relation to witnessing the occurrence i.e. giving blows by the accused-appellant on the person of the decease. Because of such serious contradictions their statements in relation to witnessing the occurrence cannot be believed. The evidence of PWs 2, 6 and 8, in relation to the same, is not trustworthy so as to record the conviction based on the prosecution story of witnessing the occurrence by PWs 2, 6 and 8. 16. It also appears that according to PWs 1, 4 and 5 the deceased made dying declaration that the accused-appellant had inflicted injuries on his person, as a result of which the deceased ultimately succumbed to his injuries. While PW 1 has claimed that such dying declaration was made by the deceased while he was carrying the deceased to the hospital in an auto-rickshaw, according to PWs 4 and 5 the dying declaration was made at the place of occurrence. The version of PW 1, relating to the dying declaration, is not believable, so also of PWs 4 and 5, on the face of the deposition of PW 6, who in categorical terms, stated that the deceased was not in a physical state of speaking or making any statement. PW 1 in the FIR filed has also mentioned that the deceased was found to be in an unconscious state. Though according to PW 5 as well as PW 1 that PW 5 has informed the PW 1 about the occurrence, PW 1 never stated that making of dying declaration was disclosed by the PW 5, to him. PW 1 in the FIR filed has also mentioned that the deceased was found to be in an unconscious state. Though according to PW 5 as well as PW 1 that PW 5 has informed the PW 1 about the occurrence, PW 1 never stated that making of dying declaration was disclosed by the PW 5, to him. Had such declaration been made, PW 5 would have disclosed it before PW 1, who according to the prosecution has informed PW 1 about the occurrence. The prosecution story relating to the dying declaration also, therefore, cannot be accepted. 17. Extra judicial confession, which is a very weak piece of evidence and used as a corroborative evidence, is also not believable, for the reasons that though according to PW 1 such extra judicial confession was made in presence of the auto-rickshaw driver, he, however, has not been examined by the prosecution, who in fact has been withheld from the Court. It also appears from the evidence of PWs 2, 6 and 8 that the accused after committing the offence has left and has in fact absconded thereafter. No evidence is led by the prosecution even to suggest that the accused was met by the PW 1 to make the extrajudicial confession, thereafter. 18. This leads to the question as to whether there is any circumstantial evidence pointing to the guilt of the accused alone and no one else and whether the chain of circumstances is complete. It appears from the evidence adduced by the prosecution that at least one circumstance has been proved i.e. the presence of the accused in the place of occurrence and by the side his injured father. The prosecution though tried to prove that the accused was standing with an iron rod, the same however, could not conclusively be proved. PW 1 in his deposition has stated that on getting information from Manik Saikia (PW 5) when he came to the place of occurrence, on the way he snatched the iron rod from the accused-appellant and handed it over to Mrigen Rajkhowa, who has not been examined by the prosecution. It also appears from the seizure memo. being Ext. 3, that one iron rod has been seized from the residence of the informant, viz. PW 1, on being produced by him on 12.3.2003. It also appears from the seizure memo. being Ext. 3, that one iron rod has been seized from the residence of the informant, viz. PW 1, on being produced by him on 12.3.2003. There is, no evidence adduced by the prosecution how the iron rod, which was allegedly with the accused-appellant, has again came back to the PW 1, when he in his deposition has in clear term stated that he handed over the iron rod to Mrigen Rajkhowa. There is, evidence to the effect that the accused was absconding for few days, who, however, was subsequently arrested. 19. Act of absconding itself would not be a strong circumstance to convict a person, which may be for very many reasons, like, to avoid the public rage or police torture. To record conviction on circumstantial evidence there must be strong circumstances pointing to the guilt of the accused alone and no one else and the chain of circumstances must be complete. In the instant case, as discussed above, except one circumstance there is no other circumstance and hence, there is no question of chain of circumstances being complete. 20. In view of what has been discussed above, we are of the view that the judgment of conviction recorded by the learned Addl. Sessions Judge (FTC), Sibsagar, on 15.9.2008 in Sessions Case No. 98(S-S) of 2003 cannot be sustained. Hence, the conviction and sentence are set aside. The accused-appellant is set at liberty forthwith, if not wanted in any other case. The appeal is allowed. Send down the LCRs forthwith.