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2013 DIGILAW 858 (GAU)

Binod Gowala v. State of Assam

2013-12-11

K.SREEDHAR RAO, P.K.SAIKIA

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K. Sreedhar, Rao 1. Heard Mr. I. Hussain, learned amicus curiae, and Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, Assam. 2. The material facts of the prosecution case disclose that one Dina Nath @ Benda Bauri is the complainant. On 10.9.2008, around 9.45 p.m., PW3 hears a noise in the direction of Sadharu River near the cremation ground opposite to Biswanath Chariali on the side of NH 52. PW3 along with two persons goes to the scene, they found a stranger sustaining bleeding injuries and accused was beating the stranger with a lathi and as soon the accused found PW3 going to the scene, he fled away. PW3 has given telephonic information to the police immediately and a G.D. Entry was made around 9.45 p.m. Written complaint is lodged on the next day by PW3 as per Ext.2, extract of which is as follows : "TO, The officer-in-Charge, Biswanath Chariali Police Station. Sub: Ejahar. Informant: Benda Bouri, S/0, Lt. Tarani Bouri, R/o. Sadharu Tea Garden, Factory Line, PS. B. Chariali, Sonitpur, Assam. Sir, I have the honour to state that around 9.45 p.m. on 10.9.2008, when I heard someone sobbing in the direction of Sadharu River near the creamation ground opposite to the Biswanath Dhaba beside NH 52,1 took some persons in my company and proceeded to the riverside where I found a stranger lying seriously injured in the jungle by the said river and after a shortwhile, I found the man succumbing to his injuries. I saw a man Binod Gowala by name of Sadharu Rajuhuwabari beating up the said stranger with a lathi. As soon as we reached there, he fled the scene. I, therefore, pray to you to look into the matter and take necessary steps in this regard. Yours faithfully, Sri Benda Bauri." 3. Inquest is held by the investigating officer. Post mortem report discloses that death is on account of shock and hemorrhage due to the injuries sustained. The injuries are stated to be ante mortem and death is homicidal. 4. In course of investigation, it reveals that PW1 and PW2 go to the scene immediately after PW3 arrives and, on hearing cries from PW3, PW1 and PW2 go to the scene. The investigating officer, after completion of investigation, has filed charge sheet for committing offence under section 302, IPC. Accordingly, accused is charged for committing offence under section 302, IPC. 5. The investigating officer, after completion of investigation, has filed charge sheet for committing offence under section 302, IPC. Accordingly, accused is charged for committing offence under section 302, IPC. 5. In evidence before the Session Court, PW1 states that at the time of the incident, he was taking meal near the Dhaba, PW3 goes to the scene after hearing the cries and immediately after sometime PW1 goes to the scene, he hears from PW3 that accused had beaten up the victim, who was still breathing at that time. The evidence of PW2 is in another line. In the examination-in-chief, PW2 says that after hearing the hue and cry, PW2 along with PW3 go to the scene and they found a person lying injured. Police was informed immediately. He further states that PW3 informed the police that it is the accused who beat the deceased and fled away. In the cross-examination, PW3 states that he has seen the accused beating the victim but when PW3 called the accused, the accused fled away. It implies from the said deposition that PW2 goes to the scene followed by PW3 immediately sometime after. The evidence of PW3 discloses that it was around 8.30 p.m. that they came to the Dhaba for taking meal and he was standing outside the Dhaba. he heard cries from the cremation ground and found the accused beating a person with a lathi. Then, PW3 shouted the name of the accused and the accused fled away into the jungle. From the cross-examination, it is elicited that on previous occasions, he had handed over the accused for committing thefts. PW3 denies the suggestion that there was a quarrel between him and the accused on earlier occasion. 6. PW5 is the doctor, who conducted post mortem examination. PW6 is the investigating officer and PW4 is the Executive Magistrate, who conducted the inquest. 7. The learned trial court, upon considering the evidence, has convicted the accused under section 302, IPC. The accused, being aggrieved, has filed this appeal from jail. 8. Mr. I. Hussain, learned amicus curiae, has submitted the following points to assail the order of conviction : (i) In the FIR, it is suggested that PW1 and PW2 accompanied by PW3 go to the scene of offence, but the evidence shows that they go to the scene separately after the incident and PW3 arrived the scene much earlier before their visit. Police have not got the dead person identified and investigation does not disclose the name and identity of the dead person. (ii) The evidence of PW3 discloses that on earlier occasion, PW3 had handed over the accused to police for committing thefts. Therefore, PW3 has grudge against the accused and accused has been falsely implicated. 9. Upon thorough consideration of the facts and the evidence, we find that in the FIR, there is no mention of PW1 and PW2 accompanying PW3 to the scene. The evidence of PW1 and PW2 is categorical that it was PW3 who first goes to the scene and immediately sometime thereafter, PW1 and PW2 go to the scene and they were informed by PW3 that it was accused who beat the victim. 10. PW3 is a witness to the incident of boating. It may be true that PW3 had handed over the accused to the police on earlier occasion for committing thefts but that by itself does not suggest that there was any malice or manipulation on the part of the PW3 to falsely implicate the accused in the crime. PW3's evidence is credible and the evidence of PW1 and PW2 corroborate the evidence of PW3 as res gestae evidence with regard to material circumstance. The fact that police was not able to establish the name and identity of the deceased is not a ground to reject the case of the prosecution and to hold that the accused is not guilty of committing an offence under section 302, IPC. Investigation might have been conducted in an uncanny manner but nonetheless the evidence of material witnesses examined by the prosecution namely PW1, PW2 and PW3 coupled with the post mortem report clinchingly proves that it was the accused who had committed the murder of the victim. The order of conviction is, therefore, sound and proper. 11. Accordingly, this appeal is dismissed. 12. The State shall pay to the learned amicus curiae a sum of Rs.7,000. 13. Send back the LCR.