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2017 DIGILAW 43 (GAU)

Bhuban Saikia v. State of Assam

2017-01-09

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Bhuban Saikia has been convicted under Section 302/34 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.10,000/- with default stipulation. He has also been convicted under Section 394/34 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.1,000/- with default stipulation. 2. The victim of the incident was Azizur Rahman @ Bhaity Ali, aged about 28 years. 3. According to the prosecution case, on 18.07.2007, Dr.Haidor Hussain (PW-2), a veterinary doctor of Golaghat, called his younger brother Imran Hussain (PW-1) and asked him to send his car to fetch him home at the early hours on the next day i.e. on 19.07.2007. Accordingly, Imran sent his Maruti Alto car to Golaghat with his driver Azizur Rahman @ Bhaity Ali at about 4 a.m. But on way, Azizur Rahman was intercepted by the appellant, Deuta Chetry and Mohan Das and was murdered and his body was thrown near Kachajan. Thereafter, they stole the vehicle and while they were driving rashly to escape, they met with an accident. When the car dashed making a big sound, Nabin Gogoi (PW-5) who heard the sound from his house, came out to find the car meeting with the accident and also found Bhuban, Deuta and Mohan inside the car. On interrogation, when he could not get satisfactory reply, Nabin informed the Titabar Police Station over phone. 4. In the meantime, near Kachajan, Ramkrishna Dev @ Kanukrishna (PW-9) heard that one man was lying on the road being injured and coming to the place, he found Azizur with multiple injury marks on all over his body. He then informed the police station and police immediately came to the place of occurrence and collected blood samples in presence of Ramkrishna vide Exhibit-3 seizure list. The body of Azizur was sent for post-mortem examination after inquest being done by Sushanta Kumar Dutta (PW-13). He submitted his report vide Exhibit-5 inquest report. 5. Dr. Debojit Gogoi (PW-6) upon conducting post-mortem examination on dead body of Azizur found four stab injuries over right chest penetrating underlying lung and vessels, 2 cm in size, 3” in right arm bone depth and 2 in back penetrating lung, which were all ante-mortem in nature. He submitted his report vide Exhibit-5 inquest report. 5. Dr. Debojit Gogoi (PW-6) upon conducting post-mortem examination on dead body of Azizur found four stab injuries over right chest penetrating underlying lung and vessels, 2 cm in size, 3” in right arm bone depth and 2 in back penetrating lung, which were all ante-mortem in nature. According to his opinion vide Exhibit-2 post-mortem report the cause of death was due to syncope as a result of injuries sustained by the victim. 6. Ejahar (Exhibit-1) of the incident was made by Imran (PW-1) at Police Station Morioni. This he did on getting the information from the police station about the death of Azizur and accident of his car followed by the apprehension of appellant, Deuta and Mohan. On receiving the information, Investigating Officer –Apurba Kumar Bora (PW-11) rushed to the spot and prepared the sketch map etc. He also went to Titabar Police Station and took custody of the appellant. 7. The appellant was also brought before Abhijit Deori (PW-12), Judicial Magistrate-cum-Munsiff at Jorhat, for recording confessional statement. But in his statement he did not state anything material incriminating himself. On completion of investigation, charge-sheet was submitted against the appellant, Deuta Chetry and Mohan Das. In the charge sheet, Jiten Das was shown as absconder. Later on, case of the appellant was split up as he was in custody and other charge-sheeted accused did not appear and the appellant faced the trial. 8. During trial, the appellant abjured his guilt and pleaded false implication. According to the appellant, although he was arrested by the police alongwith the other accused, he was completely innocent. 9. But the trial court relying upon the evidence adduced by the prosecution, convicted and sentenced the appellant as aforesaid. 10. In the present case, the injured body of Azizur was found on the road near Kachajan. According to the evidence of Ramkrishna, he was lying with multiple injuries which have been corroborated by the medical evidence of Dr. Debojit Gogoi. Sushanta (PW-13) who conducted the inquest further corroborated the evidence of Ramkrishna. But on the other hand, Nabin only had testified that he found the appellant in the car when it met with an accident and thereafter, police apprehended the appellant alongwith others. But not a single weapon has been recovered from the appellant. Debojit Gogoi. Sushanta (PW-13) who conducted the inquest further corroborated the evidence of Ramkrishna. But on the other hand, Nabin only had testified that he found the appellant in the car when it met with an accident and thereafter, police apprehended the appellant alongwith others. But not a single weapon has been recovered from the appellant. Although, it is the medical evidence that injuries were inflicted by sharp weapon, but non seizure of any such weapon from the appellant makes the prosecution case doubtful. Further, the police also could not recover the weapon of the crime. The car met with an accident and Utpal Barua (PW-10) who was the then Motor Vehicle Inspector at Jorhat, examined the vehicle and only reported vide Exhibit-4 report that the vehicle met with the accident while being stolen by the miscreants. But not a single whisper has been made by any of the witnesses that the appellant was the sole perpetrator of crime who stole the vehicle after committing murder of Azizur. The appellant was found in the vehicle alongwith others and not alone. Therefore, in absence of sufficient material against him, the chain of circumstances is not complete and there is missing link amongst the circumstances giving the benefit of doubt to the appellant. There are only two circumstances emerging from the evidence. First, recovery of the dead body of the driver and secondly, finding the appellant with others inside the vehicle. But, the places where the dead body of the victim was found and the accident took place are far apart. There is every possibility of appellant boarding the vehicle after being stolen by others. There is hardly any evidence testifying that appellant was seen with Azizur while he was alive. Besides, no weapon of offence was found from the possession of appellant. Had he inflicted multiple injuries to Azizur causing him to bleed profusely, there had been every possibility of his clothes being smeared with blood. But there is also no evidence to that effect. Hence, the circumstances do not point the finger of guilt to appellant alone. 11. We therefore, having regard to the above, find ourselves in complete disagreement with the finding of the trial court that appellant alone was the perpetrator of the crime and is of the considered opinion that the appellant is entitled for the benefit of doubt. Hence, the circumstances do not point the finger of guilt to appellant alone. 11. We therefore, having regard to the above, find ourselves in complete disagreement with the finding of the trial court that appellant alone was the perpetrator of the crime and is of the considered opinion that the appellant is entitled for the benefit of doubt. In view of the above, the conviction and sentence of the appellant are set aside and he be released from jail forthwith if not wanted in any other case. 12. Accordingly, the appeal stands allowed.