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2016 DIGILAW 651 (GAU)

Sri Lakhan Hazarika v. State of Assam

2016-07-19

AJIT SINGH, SUMAN SHYAM

body2016
JUDGMENT AND ORDER : Suman Shyam, J. The appellant Sri Lakhan Hazarika has been convicted under Section 302 of the Indian Penal Code (herein after referred to as 'IPC') and sentenced to undergo imprisonment for life and also to pay a fine of Rs.2,000/- with default stipulation, for committing the murder of Dibyajyoti Das. 2. The prosecution case, in brief, is that on 09.11.2007 the deceased Dibyajyoti Das had gone out with appellant and on the next morning his dead body was found hanging by the neck from a bamboo at the outskirts of the village Naosalia. According to the prosecution, the appellant and the deceased were last seen together and in the next morning he was found looking at the dead body and therefore, it is the appellant who had caused the death of the deceased. 3. Sri Bharat Chandra Das, who is the father of the deceased, had lodged an ejahar on 10.11.2007 with the Officer-in-Charge of Pulibor Police Station in the District of Jorhat, on the basis of which a case being Pulibor P.S. Case No. 192 of 2007 was registered under Section 302 IPC. The Investigating Officer Sri Imdad Ali Bora had conducted the investigation in the case and thereafter, submitted the charge sheet against the appellant under Section 302 IPC. The trial court had framed charges against the appellant under section 302 of the Indian Penal Code and the matter was then put to trial where after, the appellant was convicted for murdering the deceased Dibyajyoti Das and sentenced to life imprisonment. 4. There is no eye witness to the incident. The prosecution case is primarily based on the theory of "last seen together" since the deceased is believed to have left his home along with the appellant on the previous evening and in the next morning his dead body was found hanging from a bamboo with the shirt which was being worn by the deceased. 5. Sri Abhijeet Saikia (P.W.1), who is the Gaon Bura of the village, was examined as a prosecution witness, who had deposed that he had come to know from Haren Dutta (P.W-4) in the morning at around 5 o'clock that a man had been lying dead near the bridge of Dhali river. A little later, Haren Dutta had also said that a bicycle, too, had been lying there. A little later, Haren Dutta had also said that a bicycle, too, had been lying there. After reaching the place of occurrence (P.O) the P.W-1 had found the appellant was on his own cycle and he had also found that the cycle of the deceased Dibyajyoti Das was lying on the ground. Abhijeet Saikia, thereafter, informed the police and handed over the two bicycles to the police. 6. Sri Bharat Ch. Das, the father of the deceased was examined as P.W-2 who had deposed that around 7 P.M. on the previous day (i.e. 9/11/2007) the appellant had come to their house and called his son Dibyajyoti Das for having a meal. Thereafter, Dibyajyoti went away with the appellant and did not return during the night. In the morning, he had come to know about the death of his son. The witness had also deposed that in the morning the people caught hold of the appellant and the cycle of the appellant was lying at the place of occurrence. However, in his cross-examination the P.W-1 has admitted that it was his daughter-in-law who had told him about the fact that the appellant had visited their house and he did not know where his son had gone after that. 7. Sri Oren Saikia (P.W.3) had deposed that on the date of the incident he had been thrashing paddy at his house while Haren Dutta (P.W.4) had told him that a man had been hanging dead from a bamboo. Thereafter, they went there and saw it and after sometime they saw that the appellant was waiting near the dead body with a cycle. The witness had deposed that he had seen two cycles there and the appellant was thereafter handed over to the Gaon Bura Abhijeet Saikia along with the two cycles. Sri Haren Dutta (P.W.4) had also reiterated the version given by the P.W.3. It is worth mentioning here that PW-4 was declared as a hostile witness by the prosecution. 8. The appellant has been convicted on the basis of the testimony of the father (PW-2) of the deceased that his son was last seen together with the appellant when both of them had gone out together on the previous evening for a meal and the dead body of the deceased was discovered next morning hanging from the bamboo. 8. The appellant has been convicted on the basis of the testimony of the father (PW-2) of the deceased that his son was last seen together with the appellant when both of them had gone out together on the previous evening for a meal and the dead body of the deceased was discovered next morning hanging from the bamboo. However, the evidence of the said witness is based on what was told to him by his daughter-in-law. On scrutiny of the record we find that the daughter-in-law has not been examined as a witness by the prosecution so as to corroborate the testimony of the PW-2. Therefore, the evidence of the PW-2 is hear-say evidence and is not admissible in law. 9. From the testimony of Ms. Ritamoni Das (P.W-7), who is the sister-in-law of both the appellant and the deceased, it is seen that the appellant had spend that night in the house of the deceased and went away in the early hours of the next day to his own sister's house. As such, the evidence of P.W-7 belies the prosecution case that the appellant had gone out with the deceased Dibyajyoti Das in the previous evening and did not return back that night. 10. The Post-Mortem examination was conducted on the dead body of the deceased by Dr. Anadar Neog who was examined as P.W-11. Dr. Neog had opined that the cause of death was asphyxia as a result of hanging and that the hanging was ante-mortem in nature. 11. On scanning the evidence on record we find that not to speak of evidence of last seen together, there is no evidence at all to connect the appellant with the commission of the crime. P.Ws 3 and 4 merely saw the dead body hanging from the bamboo early in the morning and found the appellant standing near the body in his cycle and looking at it but the said witnesses do not say that they had seen the appellant indulging in any unusual activity suggesting his involvement in the crime. Since, a dead body was seen hanging from the bamboo, it is but natural for the appellant to keep looking at the dead body, more so when the deceased was evidently known to him. Since, a dead body was seen hanging from the bamboo, it is but natural for the appellant to keep looking at the dead body, more so when the deceased was evidently known to him. The mere fact that the appellant was found looking at the dead body in the next morning standing near it cannot take the place of proof of the fact that the appellant was involved in the murder of the deceased. 12. Similarly, the testimony of the remaining witnesses examined by the prosecution also does not even remotely establish any link of the appellant with the commission of the crime. Record reveals that the appellant was related to the deceased and there was no quarrel between them. There is also to indicate as to the motive on the part of the appellant to murder the deceased. After going through the evidence on record we are of the opinion that the prosecution has failed to prove the case under section 302 of the Indian Penal Code beyond reasonable doubt and there was no legitimate basis for the trial court to convict the appellant and sentence him to imprisonment for life. 13. For the reasons stated above, we set aside the conviction and sentence of the appellant under section 302 of the Indian Penal Code and acquit him of the murder charge. The appellant is in jail. So, he be released forthwith, if not wanted in connection with any other case.