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2016 DIGILAW 974 (GAU)

Ananta Saikia @ Papu Kachari v. State of Assam

2016-11-03

AJIT SINGH, N.CHAUDHURY

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JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Ananta Saikia @ Papu Kachari has been convicted under Section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life and fine of Rs.15,000/- with default stipulation. 2. The victim of incident was Diganta Gogoi, aged 25 years. 3. According to the prosecution case, Diganta Gogoi and Jitu Gogoi (PW-6) were friends. On the evening of 1.5.2008, Jitu Gogoi came to the house of Diganta Gogoi, whereafter both Diganta Gogoi and Jitu Gogoi left on their respective bicycles to enjoy Bihu Festival at Paninora Gaon. Diganta Gogoi did not return home at night. And, on the next morning, at about 7 O’clock, his injured dead body was found on the PWD Road. Near the dead body bicycle of Jitu Gogoi was also found. Hemanta Gogoi (PW-1) had made the ejahar at Police Station Bandar Chaliha Police Out-Post about the incident and prayed for investigation. The police during investigation seized the bicycle of Jitu Gogoi from the spot. Hemanta Gogoi (PW-1) and Prasanta Gogoi (PW-2) are brothers of Diganta Gogoi, whereas Deben Saikia (PW-3) is his brother in law. They attributed strong suspicion against Jitu Gogoi, because it was he, who had taken Diganta Gogoi to Bihu Festival. The police also recovered the bicycle of Diganta from the house of Jitu Gogoi.The police, however, after interrogating Jitu Gogoi, arrested the appellant and recovered one dao from his house. The police alleged that appellant had an altercation with Diganta Gogoi where after, he killed Diganta Gogoi by causing multiple injuries with a dao. The police, after investigation, filed a charge sheet against him for his prosecution under section 302 of the Indian Penal Code. 4. During trial, the appellant pleaded innocence and false implication. He, however, while being examined as an accused, admitted that he had an altercation with Diganta Gogoi, but denied his killing. The appellant also admitted the seizure of household kalam katari (knife) from his house by the police. He, however, denied that it was used for committing any offence. 5. The trial court relying upon the evidence adduced by the prosecution, convicted and sentenced the appellant, as aforesaid. 6. After hearing the learned counsel for the appellant and the learned Additional Public Prosecutor, we are of the considered view that the appeal deserves to be allowed. He, however, denied that it was used for committing any offence. 5. The trial court relying upon the evidence adduced by the prosecution, convicted and sentenced the appellant, as aforesaid. 6. After hearing the learned counsel for the appellant and the learned Additional Public Prosecutor, we are of the considered view that the appeal deserves to be allowed. As mentioned above, witnesses – Hemanta Gogoi, Prasanta Gogoi and Deben Saikia are close relations of Diganta Gogoi. They attributed suspicion only against Jitu Gogoi and did not utter even a single word against the appellant. Their evidence, therefore, does not help the prosecution case. Similar is the evidence of Hemanta Gogoi (PW-5), who was the Secretary of Village Defence Party. According to the evidence of Anil Gogoi (PW-4), the police seized one knife from the house of appellant. The seizure of knife has himself been admitted by the appellant during his examination as an accused. But, there is no report of Chemical Analyst to suggest that the seized knife was stained with blood. 7. Jitu Gogoi was initially the main suspect. He has, however, been examined as prosecution witness. Jitu Gogoi testified that he and Diganta Gogoi, on the date of incident, attended a birth day party and while returning at about 8.30 p.m., on way, they came across the appellant. Diganta Gogoi flashed a torch light, which was not appreciated by the appellant. This led to an altercation between them. The appellant then said to Diganta Gogoi that “he would see him”. Thereafter, both he and Diganta Gogoi left the place on his (Jitu’s) bicycle. This witness does not say that he saw the appellant causing any injury to Diganta Gogoi with a knife. On the contrary, his evidence reveals that after the altercation, both he and Diganta Gogoi had left the place. As mentioned above, even the appellant has admitted having an altercation with Diganta Gogoi. The evidence of Jitu Gogoi apparently in no way helps the prosecution case against the appellant. 8. Lulu Gogoi (PW-7) only claims to have seen the appellant and Diganta Gogoi having an altercation over flashing of torch light whereafter both of them were separated. He also does not say that he saw the appellant causing injury to Diganta Gogoi with a knife. Witnesses –Thaneswar Gogoi (PW-9), Simanta Gogoi (PW-10) and Ghanashyam Kachari (PW-11) have turned hostile and did not support the prosecution case. He also does not say that he saw the appellant causing injury to Diganta Gogoi with a knife. Witnesses –Thaneswar Gogoi (PW-9), Simanta Gogoi (PW-10) and Ghanashyam Kachari (PW-11) have turned hostile and did not support the prosecution case. Thaneswar Gogoi in his cross examination admitted that he did make a statement to the police that appellant had killed Diganta Gogoi by causing injuries with a dao. His statement to the police, however, does not suggest that he actually saw the appellant causing injuries. Moreover, he was only a witness of confession made by the appellant before the police which is otherwise also not admissible. 9. We, therefore, in the absence of any reliable and cogent evidence against the appellant to connect him with the commission of crime, cannot uphold his conviction and sentence. We, accordingly, set aside the impugned judgment and acquit him of the charges. The appeal is allowed.