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2016 DIGILAW 1164 (GAU)

Pradip Baruah v. State of Assam

2016-12-22

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT AND ORDER : Ajit Singh, J. This appeal by Prodip Baruah (PW-1) is directed against the judgment and order dated 15.12.2012 passed by the Sessions Judge, Golaghat in Sessions Case No.133/2009, whereby he has acquitted respondents – Ranjit Bawri, Krishna Bora and Joon Saikia @ Bitupan of the charge under Section 302/34 of the Indian Penal Code. 2. According to the prosecution case, deceased Probin Baruah was a tenant in one of the rooms of house of Niren Borah (PW-3) situated at Tamuligaon, District Golaghat. On the morning of 17.6.2009, Niren saw that a hole had been dug in the room of Probin. He, therefore, became alert and called the co-villagers. Thereafter, door of the room was forcibly opened. Everyone then found injured dead body Probin lying on a bed smeared with blood. Niren made ejahar exhibit 3 at Police Station Borpathar against unknown person. Investigating Officer Rupeswar Borah (PW-11) arrested respondents – Ranjit Bawri, Krishna Bora and Joon Saikia, after one month from the date of incident. He then recovered one khukuri from the possession of Krishna. Apart from this, the police relying upon the evidence of alleged extra judicial confession made by Ranjit to Prodip Baruah (PW-1) and Budheswar Nath (PW-2), charge-sheeted them for an offence under Section 302 of the Indian Penal Code. The trial court did not find the evidence adduced by the prosecution sufficient enough to convict the respondents and hence acquitted them of the charges. 3. Admittedly, there is no eye witness to the incident. Prodip is elder brother of deceased Probin. According to his evidence, on being informed about the incident, he visited the place of occurrence and saw Probin lying dead on his bed. He says that after one month from the date of incident, he was called to Police Station Borpathar, where he met the respondents and on his asking, they confessed that they had hacked Probin to death with a dagger. This confession of the respondents made at the Police Station being inadmissible, has rightly been rejected by the trial court. 4. Budheswar Nath says that about one month after the incident, Ranjit told him that Krishna had cut Probin where after he informed the police about this fact on telephone. This confession of the respondents made at the Police Station being inadmissible, has rightly been rejected by the trial court. 4. Budheswar Nath says that about one month after the incident, Ranjit told him that Krishna had cut Probin where after he informed the police about this fact on telephone. He also says that Krishna produced one khukri by digging out soil from a hole in the backyard of his house, which was seized by the police vide exhibit 2. In the cross examination, this witness has admitted that he has close rapport with the police. He has also admitted that public was staging protest against the police because no arrest had been made. Interestingly, this witness does not say why one of the respondents would suddenly disclose to him about commission of crime. Apparently Budheswar Nath has been planted as witness because of his close rapport with the police and therefore his evidence cannot be relied upon. 5. Similar is the evidence of Niren Borah. He had made the ejahar at Police Station on 17.6.2009 against unknown person. According to him, on 19.7.2009, he happened to meet Ranjit on road and on his asking, Ranjit told him that he along with Joon Saikia and Krishna had hacked Probin. According to ejahar, the incident took place on the night of 16.6.2009 and in the cross examination, this witness says that on that night, he had returned with Ranjit around 2 a.m. after watching a theatrical performance in old Assamese style. From his evidence also it is not clear why Ranjit would confess to him about hacking Probin to death along with Krisha and Joon Saikia. Probin was admittedly killed in a well-planned manner in the night, while he was sleeping. The assailants of Probin made sure that no one could see them committing the crime. It therefore becomes difficult to accept that one such assailant would suddenly, after few days, disclose Niren merely on his asking about the commission of crime. His evidence has therefore rightly been disbelieved by the trial court. 6. Investigating Officer-Rupeswar Borah has admitted in the cross examination that he had arrested the respondents after one month of the incident and the public of locality were unhappy because assailants of Probin could not be arrested for such a long time. His evidence has therefore rightly been disbelieved by the trial court. 6. Investigating Officer-Rupeswar Borah has admitted in the cross examination that he had arrested the respondents after one month of the incident and the public of locality were unhappy because assailants of Probin could not be arrested for such a long time. He also says that khukuri was seized on the disclosure statement of Krishna, but it was not sent for Forensic Science Laboratory report. It is well settled that disclosure statement alone does not automatically lead to conclusion that the offence was committed by the accused as the burden lies on the prosecution to establish a close link between the discovery of the material object and its use in the commission of crime. In the present case, there is no evidence to establish that the seized khukuri was used in the commission of crime. 7. For these reasons, we find ourselves in complete agreement with the finding of the trial court that the prosecution grossly failed to prove its case against the respondents. The impugned judgment is well founded and unassailable. No ground for interference is made out. The appeal has no merit and is accordingly dismissed.