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2016 DIGILAW 840 (GAU)

Pradip Gowala v. State of Assam

2016-09-06

AJIT SINGH, N.CHAUDHURY

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JUDGMENT AND ORDER : Ajit Singh, J. Appellant Pradip Gowala has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.1000/- with default stipulation. The trial court has, however, acquitted co-accused Naren Moran of the same charge. 2. The victim of the incident was Rajib Moran, aged about 25 years. 3. According to the prosecution case, on 30.4.2012 around 2 p.m., Rajib Moran left his home on a bicycle with one plastic bag to buy some articles. But, he did not return home till 1.5.2012. Therefore, a search was made by his family members. During search, the family members found the bag of Rajib Moran near the Tea Garden of appellant. The family members also found some places there soiled with blood. On further search, body of Rajib Moran was found in the midst of tea bushes at Section No. I of Rupai Tea Estate. Brother Dhiren Moran (PW-1) of Rajib Moran made the ejahar exhibit 1 at Police Station Baghjan. The police reached the spot along with Circle Officer Madhumita Nath and prepared the inquest report. The police then seized khukhri and bicycle which were lying by the side of dead body of Rajib. The Police also seized one plastic bag vide exhibit 3 of Rajib lying in the garden of appellant. 4. Dr. Nirod Kumar Borah (PW-12) conducted the post mortem examination on the dead body of Rajib. He found many cut injuries on the body and opined that cause of death was due to multiple cut injuries. 5. The police after investigation charge sheeted the appellant along with Naren Moran for committing the murder of Rajib. 6. Duringthe trial, both appellant and Naren Moran abjured their guilt and pleaded false implication. But the trial court believed the prosecution case and convicted and sentenced the appellant as aforesaid. As mentioned above, the trial court acquitted co-accused Naren Moran of the charge. 7. After hearing the learned counsel for the appellant and Additional Public Prosecutor, we are of the considered view that the appeal deserves to be allowed. There is no eye witness to the incident. Not one witness examined by the prosecution has said that appellant was seen with Rajib anywhere before the incident what to speak of at or near the place where his body was found. There is no eye witness to the incident. Not one witness examined by the prosecution has said that appellant was seen with Rajib anywhere before the incident what to speak of at or near the place where his body was found. Mere finding of one plastic bag of Rajib in the compound of appellant can not lead to conclusion that he alone committed his murder. It is also to be seen that dead body of Rajib was found in the midst of tea bushes at Section 1 of Rupai Tea Estate. One khukhri and bicycle of Rajib were also found near the dead body. In that event, the police ought to have prosecuted the owner of that Tea Estate. 8. Witnesses -Dhiren Moran (PW-1), Gonjit Moran (PW-2) and Anima Moran (PW-3) brothers and wife of Rajib Moran. According to the evidence of Dhiren Moran and Gonjit Moran, when Rajib did not return home, they went out to search for him. And while doing so, they found the bag of Rajib towards the back side of the house of appellant. They also found some blood stains on the ground here and there. These witnesses have further testified that they even saw the appellant wiping blood stains. But in the ejahar made by Dhiren Moran (PW-1), it is nowhere mentioned that he saw the appellant wiping blood stains. Had the appellant really been seen wiping blood stains, this fact would have been definitely mentioned in the ejahar. Also the police did not collect any soil or material from the compound of appellant to establish presence of blood stains. Similar is the evidence of Anima Moran (PW-3). She had accompanied Dhiren Moran and Gonjit Moran during the search. She in her evidence has not supported them that appellant was seen wiping blood stains. According to the evidence of Kanteswar Moran (PW-10), he too was a member of the search party and saw the appellant standing near the bag of deceased Rajib and that appellant was wiping blood stains from the ground. According to the evidence of this witness, he went to search for Rajib along with Dhiren and Gonjit. As seen above, Dhiren and Gonjit nowhere stated that appellant was found standing near the bag of Rajib. Also nothing was collected from the house of appellant by the police to establish presence of blood stains. 9. According to the evidence of this witness, he went to search for Rajib along with Dhiren and Gonjit. As seen above, Dhiren and Gonjit nowhere stated that appellant was found standing near the bag of Rajib. Also nothing was collected from the house of appellant by the police to establish presence of blood stains. 9. For these reasons, it is apparent that the prosecution has grossly failed to prove its case against the appellant. The impugned judgment therefore cannot be sustained. We accordingly set aside the conviction and sentence of the appellant and direct for his immediate release from jail. 10. The appeal is allowed.