Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 65 (GAU)

Upen Sarma v. State of Assam

2016-01-28

B.K.SHARMA, PARAN KUMAR PHUKAN

body2016
JUDGMENT AND ORDER The judgment of conviction dated 15.11.2011 of the accused appellant under Section 302 IPC by the learned Judge, Designated Court, Assam, Guwahati in TADA Sessions Case No. 52/2000 and sentencing him to Rigorous Imprisonment for life and to pay fine of Rs. 1,000/-, in default, to Rigorous Imprisonment for another 6 (six) months is the subject matter of challenge in this appeal. 2. The sum and substance of the prosecution case is that on 03.12.1992, at about 9.30 am, the informant, Minaram Deka along with his friend Phuleswar Deka (since deceased) were proceeding towards Mangaldoi College in their bicycles. When they arrived at Jonaram Chowk, they were kidnapped by the accused appellant, Upen Sarma and his associates and were taken to Adhikari village, where they were kept under confinement and assaulted, as a result of which, they sustained grievous injuries. After assaulting them, they were blind folded and left on the road and asked to run away and while running away, they fell into a ditch and sustained injuries. They were again assaulted by Upen Sarma and his associates and thereafter, they were carried in two bicycles and left in the side of the road at village Adhikari. The local people having come to know about the incident informed police, police arrived at the spot and took them to hospital. The injured Phuleswar Deka succumbed to the injuries at night and Minaram Deka was admitted in the hospital and he had to remain in hospital for about twenty days. 3. The written FIR was filed by Minaram Deka, on the next day, on the basis of which, a case was registered vide Mangaldoi P.S. Case No. 172/1992 and on completion of investigation Charge-Sheet was submitted against Upen Sarma, Deben Medhi and Mathura Mohan Saharia under Section 302 IPC and Section 3(2)(I) of TADA (P) Act. Charges under the aforesaid Sections having been framed, the accused appellant and the co-accused pleaded not guilty and claimed to be tried. 4. During trial, the prosecution examined as many as 21 witnesses including the official witnesses. Defence examined none. The accused appellant and the co-accused pleaded innocence. On conclusion of the trial, the learned Judge of the Designated Court found the accused appellant Upen Sarma guilty under Section 302 IPC and convicted and sentenced him accordingly as stated above. 4. During trial, the prosecution examined as many as 21 witnesses including the official witnesses. Defence examined none. The accused appellant and the co-accused pleaded innocence. On conclusion of the trial, the learned Judge of the Designated Court found the accused appellant Upen Sarma guilty under Section 302 IPC and convicted and sentenced him accordingly as stated above. The other accused persons were found not guilty and they were acquitted and set at liberty forthwith. 5. Being highly aggrieved and dissatisfied with the judgment passed by the learned Judge, Designated Court, the accused appellant has preferred this appeal on the ground that the judgment of conviction passed by the learned Trial Judge is not legally sustainable since the evidence on record has not been properly appreciated, that on the same set of evidence, the co-accused having been acquitted, the learned Judge ought to have acquitted the present accused appellant, that the learned Trial Judge while appreciating the evidence of the informant failed to take into consideration the fact that he had prior enmity with the accused appellant and that the prosecution has miserably failed to bring home the charge of murder against the accused appellant. 6. Mrs. R.B. Bora, learned counsel appearing for the accused appellant strenuously submitted that there was prior enmity between the accused appellant and the informant regarding cultivation of land in the village and this fact has been totally ignored. Based on his sole testimony, the learned Court should not have convicted the accused appellant under Section 302 IPC. Ms. S Jahan, learned Additional Public Prosecutor, Assam, controverting the submissions, submitted that the informant who is the injured of the case is a highly reliable witness and there is no evidence of previous enmity between him and the accused appellant and there is no legal impediment in convicting the accused appellant on the basis of his evidence which is also corroborated by the evidence of the other witnesses and the attending circumstances of the case. 7. In the backdrop of the aforesaid contentions, let me now turn to the evidence on record to ensure whether implicit reliance can be placed on the evidence of the informant, who is the star witness of the prosecution. 8. 7. In the backdrop of the aforesaid contentions, let me now turn to the evidence on record to ensure whether implicit reliance can be placed on the evidence of the informant, who is the star witness of the prosecution. 8. To bring home the charge, the prosecution has examined 21 witnesses, they are PW1, Minaram Deka, who is also the informant and injured of the case and post occurrence witness, PW2 Sahiruddin Ahmed, PW3 Khabiruddin Ahmed, PW4 Kasnur Ali, PW5 Keshab Ch. Nath, PW6 Dharanidhar Deka, PW7 Ganesh Sarikia, PW8 Kamleswar Deka, PW9 Lakheswar Deka, PW10 Harakanta Deka, PW11 Tapan Deka, PW12 Rajen Deka, PW13 Khiteswar Deka, PW14 Denish Deka, PW15 Satram Deka, PW16 Ratiram Deka, PW17 Sonaram Deka, PW18 Maneswar Deka, PW19 Hem Chandra Boro, PW20 Muslemuddin Ahmed and PW21 Dr. Mahendra Nath Tamuli. 9. Since, it was a case of murder alleged to have been committed by the accused appellant, it is necessary at this stage to ascertain first as to whether the death of the deceased Phuleswar Deka was an act of culpable homicide. In this regard the evidence of PW21, who proved the postmortem report on the dead body of the deceased is worth consideration. The doctor who performed postmortem on the dead body died during the trial and to prove the report, prosecution has examined PW21 who at the relevant time was functioning as SDMO at Mangaldoi Civil Hospital, where postmortem was conducted. While proving the postmortem report, Ext. 7, PW1 deposed that the postmortem report reveals the following :- "13. A male, Hindu, aged about 30 years, on being identified by Sri Nandaram Baruah, Babul Deka and Minaram Deka. The findings of the doctor are as follows: 14. Dead body of a male, eyes and mouth closed, rigor mortis present. External wounds-Fracture of all metacarpal bones including both bones fractured of the right forearm, slight abrasion on some limbs, bruise of the right that, fracture of the left forearm, fracture of the left lung. Thorax cavity consists ante-mortem clotted blood. Abdomen-wall intact, peritoneum-healthy, crenimum and spinal canal-scalp, skull-intact, membrane-healthy and intact, brain-and spinal cord-healthy and intact, spleen and kidneys-healthy, bladder-empty, organs-intact. Opinion-In the opinion of the Doctor the death is due to shock and hemorrhage as result of the injury sustained by the deceased. 15. The doctor (PW21) proved the postmortem report marked as Ext. 7 including the signature of Dr. Kulendra Ch. Opinion-In the opinion of the Doctor the death is due to shock and hemorrhage as result of the injury sustained by the deceased. 15. The doctor (PW21) proved the postmortem report marked as Ext. 7 including the signature of Dr. Kulendra Ch. Das as Ext-7(1), whose signature is known to PW21 by communication." 10. The postmortem report reveals that death was due to shock and hemorrhage as a result of the injuries sustained by the deceased. Even though, PW21 was not present at the time of postmortem examination but he proved the report including the signature of the doctor who performed the postmortem on the dead body. The report shows that there was fracture of metacarpal bones including fracture of both bones of the right forearm, fracture of the left forearm and fracture of the left lung. The thorax cavity consisted ante-mortem clotted blood and other organs intact. 11. Now the pertinent question is whether the injuries could have been caused due to falling on the ditch which has been admitted by PW1 in his evidence. No question was put to the doctor while cross-examining him in this regard. The evidence of PW1, the informant reveals that both, he and the deceased fell down into a ditch while they were asked to run by the persons who assaulted them including the accused Upen Sarma. The persons appear to have assaulted them with lathis. PW1 even could not say whether the injuries sustained by him were caused due to assault or due to falling on the drain. But from the very nature of the injuries sustained by the deceased, it can be held with certainty that all the injuries could not have been caused due to a single fall on a drain but sustaining some of the injuries due to the fall cannot be ruled out. The evidence of PW1 coupled with the evidence of the doctor satisfactorily established that the accused appellant and his associates caused some fracture injuries to the deceased. 12. From the other evidence on record also, it cannot be said that the persons assaulting them intended to cause their death. The evidence of PW1 coupled with the evidence of the doctor satisfactorily established that the accused appellant and his associates caused some fracture injuries to the deceased. 12. From the other evidence on record also, it cannot be said that the persons assaulting them intended to cause their death. From the facts and circumstances of the case and the nature of injuries sustained, it would be too hazardous to come to the finding that the assailants had intention to cause the death of Phuleswar Deka, rather it appears that their intention was only to assault and cause injuries to Phuleswar Deka and Minaram Deka (informant). 13. It is now to be decided as to whether the accused appellant caused the injuries to the deceased and the informant. In order to prove this aspect of the case, the prosecution is relying heavily on the evidence of PW1, who was also injured in the incident and who also happens to be the first informant. His evidence discloses that at the relevant time, he was a student of Mangaldoi College and on that day, i.e., on 03.12.1992, while he was proceeding towards the college, he met the deceased Phuleswar Deka at Aula Chowk and Phuleswar Deka took him to Jonaram Chowk saying that he has some business there. When they arrived at Jonaram chowk, they met four young boys and one of them was the accused appellant Upen Sarma. PW1 identified him in the dock also by pointing out that he was present on that day but he admitted that he did not know the other persons. His evidence reveals that they took him and Phuleswar Deka to Adhikari village and kept them in the house of another person and thereafter, they were again shifted to the house of another person by the said four persons and all of four persons assaulted them. In the evening, on the same day, the accused appellant Upen Sarma and his companions blind folded Phuleswar Deka and PW1 and ordered them to run away from the village and while running away, they fell into a ditch situated nearby. The accused appellant and his associates again brutally assaulted both PW1 and Phuleswar Deka and thereafter, they carried them in their bicycles and left them in the side of the road and went away. The accused appellant and his associates again brutally assaulted both PW1 and Phuleswar Deka and thereafter, they carried them in their bicycles and left them in the side of the road and went away. While PW1 and Phuleswar Deka were lying in the side of the road, some local people saw them, information was given to police and police took them to hospital for treatment. 14. Evidence of PW1 further shows that while he was in hospital, Phuleswar Deka succumbed to the injuries and PW1 was undergoing treatment for about twenty days. It is further found from his evidence that during his hospitalization, his nephew Hemanta Saikia met him and through him, he lodged the FIR, Ext. 1, which was duly proved. PW1 admitted that he could not recognise the other three persons except Upen Sarma. 15. Defence while cross-examining him could not elicit anything of importance from him to dislodge his evidence. He knew the accused appellant Upen Sarma from before and it is in his evidence that Upen Sarma was studying with one of the boy of his village and he used to visit their village frequently prior to the occurrence. The evidence of PW1 clearly reveals the involvement of the accused appellant Upen Sarma and his complicity in the commission of the crime and he has not uttered a single word against the other two accused due to which they have been acquitted by the learned Trial Judge. 16. The FIR in this case was lodged on the next day of the occurrence and the delay has been sufficiently explained. It is not difficult to presume that the delay was due to the injuries sustained by the informant and his hospitalization. Moreover, prior to filing of the FIR, verbal information was given to police regarding the occurrence. Evidence of the Investigating Officer, PW19 shows that on the day of the occurrence itself, Majnur Ali and Najrul Ali came to the police station and informed that two persons were found lying injured at Adhikari gaon. In pursuance to that information, G.D. Entry No. 153 dated 03.12.1992 was made and PW19 accompanied by his staff rushed to the spot and saw Phuleswar Deka and Minaram Deka lying in the side of the road in injured condition. In pursuance to that information, G.D. Entry No. 153 dated 03.12.1992 was made and PW19 accompanied by his staff rushed to the spot and saw Phuleswar Deka and Minaram Deka lying in the side of the road in injured condition. They were taken to the Civil Hospital, Mangaldoi and on the spot, PW19 seized two bicycles near the place of occurrence vide seizure Ext. 2. His evidence shows that when they arrived, Phuleswar Deka was unconscious and on being questioned, Minaram Deka informed that Upen Sarma was also involved. 17. Learned counsel appearing on behalf of the accused appellant submits that the verbal information given by the two persons in the police station on the day of the occurrence is to be treated as the first information of the case. The subsequent written information, Ext. 1, being hit by Section 162 of the Cr.P.C., we find sufficient force in the submissions. It is found from the evidence that on the basis of the verbal information, police made G.D. Entry No. 153, dated 03.12.1992 and proceeded to the spot, arranged medical treatment of the injured, recorded statement of the witnesses, seized bicycles and it appears that sufficient progress was made in the investigation of the case on that very day. The verbal information is to be treated as the first FIR of this case. The subsequent written FIR, Ext. 1 cannot be treated as an FIR within the meaning of Section 154 of the Cr.P.C. as the same is hit by Section 162 of the Cr.P.C. 18. Again turning to the evidence of PW1, I have found that he has given consistent and uniform version regarding the occurrence. He consistently stated that it was the accused appellant, Upen Sarma who was present along with the other persons and Upen Sarma also took part in the assault. His evidence could not be demolished in cross-examination. 19. Learned counsel appearing on behalf of the accused appellant submitted that the accused should not have been convicted on the evidence of the solitary witness without substantial corroboration from any other evidence. It is a settled law that conviction on the testimony of solitary witness is legal if he is wholly reliable and trustworthy. 20. 19. Learned counsel appearing on behalf of the accused appellant submitted that the accused should not have been convicted on the evidence of the solitary witness without substantial corroboration from any other evidence. It is a settled law that conviction on the testimony of solitary witness is legal if he is wholly reliable and trustworthy. 20. In State of U.P. v. Noorie (1996) 9 SCC 104 , the Supreme Court has held that credibility of a witness has to be decided by referring to his evidence and finding out how he has stood the test in cross-examination and what impression is created by his evidence taken in other context of the case and not by entering into the realm of conjecture and speculation. 21. In the instant case, the positive evidence of PW1 is that Upen Sarma was present with the other assailants and he also took part in the assault. We find no reason to doubt his testimony. Defence could not make out any case to show that he had any prior enmity with the accused appellant. 22. In the light of the judgment of the Apex Court in the aforementioned case and on consideration of the evidence of PW1, we find him a wholly reliable witness and his evidence inspires full confidence. He himself was injured in the incident and his presence on the spot at the time of occurrence cannot be doubted. It is well settled that the evidence of the injured person who is examined as a witness lends more credence, because it is not expected that he would falsely implicate a person thereby protecting the actual assailants. 23. In the case of Braham Swaroop v. State of U.P. reported in AIR 2011 SC 280 , the Supreme Court has held as under:- "Where a witness to the occurrence has himself been injured in the accident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in-guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailants in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness." 24. The above observation of the Apex Court is to be kept in mind while evaluating the evidence of the injured witnesses. Convincing evidence is required to discredit an injured witness." 24. The above observation of the Apex Court is to be kept in mind while evaluating the evidence of the injured witnesses. It is to be considered on a higher pedestal then the evidence of the other witnesses. 25. Delving into the evidence of the injured PW1, it is found that the accused appellant and his companions not only assaulted the deceased but also PW1. Even though, no medical certificate has been produced to ascertain the nature of injuries sustained by him, his oral evidence satisfactorily established that he also sustained injuries. In the absence of any treatment document, it is to be held that the injuries sustained by him were simple in nature. PW1 is found to be a wholly reliable witness, having no animus with the accused appellant to falsely implicate him in the case. 26. For proving the injuries, the prosecution examined the doctor PW1, who had examined the deceased. The nature of injuries sustained were grievous and the postmortem report revealed that a number of fracture injuries were sustained by him. We have already discussed that the accused appellant and his companions had no intention to cause the death of deceased and their only intention was to assault him and they did so. But all the injuries on the deceased cannot be attributed to the assault. It is in the evidence of PW1 that both he and the deceased were assaulted and blind folded and thereafter, asked to run and while running they fell into a ditch and sustained injuries. Some of the injuries sustained by the deceased must have been caused due to fall in the drain but all the fracture injuries could not have been caused due to the fall. Evidence of PW1 also reveals that the accused appellant and his companions lifted them and again assaulted them. 27. From the very nature of the injuries sustained by the deceased, it can be held with certainty that he sustained grievous injuries caused by blunt object which brings the offence within the purview of Section 325 of the IPC. 28. Evidence of PW1 also reveals that the accused appellant and his companions lifted them and again assaulted them. 27. From the very nature of the injuries sustained by the deceased, it can be held with certainty that he sustained grievous injuries caused by blunt object which brings the offence within the purview of Section 325 of the IPC. 28. In view of what has been discussed above and having regard to the facts and circumstances of the case and on consideration of the totality of the evidence on record, the only irresistible conclusion is that the accused appellant caused injuries to PW1 and the deceased with blunt object and injuries caused to deceased was grievous. From the evidence on record, we do not find material of offence under Section 302 IPC. Consequently, the conviction of the accused appellant under Section 302 IPC is set aside and he is convicted under Section 325 of the IPC. 29. Heard learned counsel appearing for the accused appellant on the quantum of sentence to be passed against him, he is a first offender and was aged about 32/33 years at the time of occurrence. This is his first offence. 30. Considering the crime committed by the accused appellant, we are not inclined to invoke the provisions of Section 360 of the Cr.P.C. or probation of offenders Act. However, considering the age, antecedent etc., we sentence him to undergo Rigorous Imprisonment for 5 (five) years and to pay fine of Rs.1000/-, in default, to imprisonment for another 3 (three) months. 31. With the above modification, the appeal is partly allowed. Send down the LCR along with a copy of the judgment for information and necessary action. The period already undergone by the accused appellant in jail shall be set off. 32. While appreciating the services rendered by Mrs. R B Bora, Legal Aid Counsel, it is hereby provided that she will be entitled to hearing fee of Rs.7,500/- and the same shall be paid to her by the District Legal Services Authority upon production of the copy of this judgment and order.