Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 937 (GAU)

Probeswar Phukan v. State of Assam

2016-10-24

AJIT SINGH, MANOJIT BHUYAN

body2016
JUDGMENT AND ORDER : Ajit Singh, J. Appellant Probeswar Phukan has been convicted under Section 302/34 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.1,000/- with default stipulation. 2. According to the prosecution case, on 15.4.2005, at about 7 p.m., Sarat Gohain, aged about 35 years, was caused multiple injuries by the appellant and co-accused persons, namely, Ganesh Moran and Tutu Sonowal. This they did in furtherance with their common intention to commit the murder of Sarat Gohain. On 16.4.2015, at about 5.30 a.m., the villagers found Sarat Gohain lying on the road in an injured condition. He was, therefore, taken to Bordumsha Government Hospital for treatment. During treatment, when the condition of Sarat Gohain improved a bit, he, on the asking of villagers, disclosed the names of appellant, Ganesh Moran and Tutu Sonowal as his assailants. Sarat Gohain, however, died in the hospital around 5.30 p.m. Ejahar of the incident exhibit 1 was made by Ratan Gogoi (PW-1) on 17.4.2015 at Police Station Pengeree. In the ejahar, Ratan Gogoi mentioned the names of appellant, Ganesh Moran and Tutu Sonowal as the persons, who had killed Sarat Gohain. Officer In-charge of Police Station Pengeree, Atul Kumar Gogoi (PW-8) came to the spot and prepared the inquest report of the dead body. He also referred the dead body for post mortem examination to Tinsukia Civil Hospital. Thereafter, he arrested Tutu Sonowal, but could not arrest the appellant and Ganesh Moran, because they had absconded. He, therefore, filed charge sheet only against Tutu Sonowal showing the appellant and Ganesh Moran as absconders. 3. The appellant and Ganesh Moran after their arrest, were, thus, tried separately from Tutu Sonowal. The trial court convicted both appellant and Ganesh Moran under Section 302/34 of the Indian Penal Code and sentenced them to imprisonment for life. Later, Ganesh Moran, in a separate Criminal Appeal No.4/2012 filed by him, was found to be juvenile in conflict with law, on the date of occurrence and, therefore, a Division Bench of this High Court vide judgment and order dated 29.8.2016 granted him the benefit of the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. It is in this background, the appellant Probeswar Phukan alone is before us. 4. It is argued on behalf of the appellant that there is absolutely no evidence against him to warrant his conviction and sentence. It is in this background, the appellant Probeswar Phukan alone is before us. 4. It is argued on behalf of the appellant that there is absolutely no evidence against him to warrant his conviction and sentence. It has also been argued that the alleged oral dying declaration of Sarat Gohain made before Tepuram Gogoi (PW-2) and Akan Saikia (PW-3) is wholly unreliable and hence the trial court ought not to have placed reliance on it. The learned Additional Public Prosecutor, on the other hand, defended the conviction and sentence of the appellant. 5. There is no dispute to the fact that Sarat Gohain died due to multiple cut injuries on his neck and head, which were caused by different types of sharp edged weapons. Dr. Atul Kumar Gogoi (PW-8), who conducted the autopsy, in his post mortem examination report exhibit 3 has confirmed this position. 6. Admittedly, there is no eye witness to the incident. Ratan Gogoi had made the ejahar. In the ejahar, he mentioned the name of appellant as one of the assailants of Sarat Gohain. But, in the cross examination, he categorically admitted that he did not see the incident and was informed by the public about the assailants of Sarat Gohain. He could not disclose the name of any particular person, who actually mentioned the names of assailants to him. The evidence of this witness, therefore, does not help the prosecution. 7. Tepuram Gogoi (PW-2) has testified that he found Sarat Gohain lying in an injured condition on the road and, therefore, he along with others took him to the Bordumsha hospital for treatment. According to the evidence of Tepuram Gogoi, when the condition of Sarat Gohain improved a little after treatment, he disclosed that Tutu Sonowal along with two others with surnames Moran and Phukan had assaulted him. This witness has candidly admitted in the cross examination that there are many people in the village, who have surnames of Moran and Phukan. Therefore, from his evidence, it cannot be held with certainty that appellant alone merely because his surname is Phukan was the perpetrator of the crime. Apart from this, the evidence of Akan Saikia (PW-3) does not corroborate the version of Tepuram Gogoi (PW-2). According to the evidence of Akan Saikia, he was also one of the persons, who had taken Sarat Gohain from the road to the hospital for treatment. Apart from this, the evidence of Akan Saikia (PW-3) does not corroborate the version of Tepuram Gogoi (PW-2). According to the evidence of Akan Saikia, he was also one of the persons, who had taken Sarat Gohain from the road to the hospital for treatment. This witness further says that when the condition of Sarat Gohain improved a little in the hospital, he, on being asked, replied that three accused persons had injured him. Akan Saikia does not say that Sarat Gohain had disclosed the name of Tutu Sonowal and persons having surnames of Moran and Phukan as his assailants. 8. In Waikhom Yaima Singh Vs. State of Manipur, 2011 Crl.L.J. 2673, the Supreme Court has held that oral dying declaration is a weak kind of evidence, where exact words uttered by deceased are not available and more particularly, when exact words of deceased differed from witness to witness. Therefore, the evidence of oral dying declaration adduced by the prosecution against the appellant, in our considered opinion, is wholly unreliable and the trial court committed an illegality in placing reliance on it. 9. The remaining witnesses – Bikash Nirmolia (PW-5), Tulshi Saikia (PW-6) and Lilo Konwar (PW-7) have not whispered a single word against the appellant. 10. Padmeswari Saikia (PW-4) is wife of Akan Saikia (PW-3). She has deposed that five years ago, one day at about 4 p.m., she saw the accused persons chasing Sarat Gohain and she had begged them not to quarrel with him. According to her evidence, she had even reported the incident to her husband Akan Saikia and on the next day, she came to know from one woman that somebody had caused Sarat Gohain cut injuries due to which he died. Even this evidence of Padmeswari Saikia does not help the prosecution case against the appellant because Akan Saikia does not say that he was informed by her that she saw the accused persons (including the appellant) chasing Sarat Gohain. It is also to be noted that Padmeswari Saikia in her police case diary statement said that she saw the accused persons chasing Sarat Gohain and that they were armed with lathis. But, as seen above, no injury of lathi was found on the body of Sarat Gohain. Moreover, she does not claim to have seen the appellant assaulting Sarat Gohain with a sharp edged weapon and for that matter, with any other weapon. But, as seen above, no injury of lathi was found on the body of Sarat Gohain. Moreover, she does not claim to have seen the appellant assaulting Sarat Gohain with a sharp edged weapon and for that matter, with any other weapon. 11. We, therefore, in the absence of any reliable and cogent evidence against the appellant, find ourselves in complete disagreement with the finding of the trial court that appellant had committed the murder of Sarat Gohain. We, accordingly, set aside the conviction and sentence of the appellant. He is reportedly in Jail and hence, he be released forthwith, if not wanted in any other case. The appeal is allowed.