Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1286 (GAU)

Bidhan Doley v. State of Assam

2018-09-03

HITESH KUMAR SARMA

body2018
JUDGMENT : HITESH KUMAR SARMA, J. 1. This appeal, under Section 374(2) of the Cr.P.C., has been filed challenging the judgment and order, dated 13.7.2016, passed by learned Sessions Judge, Jorhat, in Sessions Case No. 68(JJ)/2011, convicting the accused-appellants and sentencing them to undergo rigorous imprisonment for 7 years each and to pay a fine of Rs. 10,000/- each for commission of offences under Sections 307/34 IPC. Heard Mr. N.J. Das, learned counsel for the accused-appellants. Also heard Mr. B.J. Dutta, learned Additional Public Prosecutor for the state respondent No. 1. None appears for the respondent No. 2 in spite of service of notice upon him as per office note dated 2.8.2017. 2. I have perused the records of the learned trial court including the evidence of the witnesses. I have also perused the impugned judgment. 3. The fact leading to the case is that, on 19.6.2010, Sri Ramnath Doley, lodged an FIR with the Lahdoigarh Police Outpost, alleging, inter-alia, that on 17.6.2010, in the night, the accused-appellants came to his house, took him away forcibly putting him in a gunny bag threw him into the river Brahmaputra. He was recovered alive by Sri Jiban Doley/PW1, Sri Amar Doley/PW8, and Sri Rajen Doley/PW3. He was thrown in the river, putting him in a gunny bag on the allegation that he was practising witchcraft. 4. On receipt of the FIR, through Lahdoigarh Police Outpost, the Teok Police Station registered a case, being No. 123/2010 under Sections 307/34 IPC, investigated into it, collected evidence, and on completion of the investigation, finally, submitted charge-sheet against the accused-appellants under the aforesaid provisions of law. 5. After exhausting all the required legal formalities, the accused-appellants were charged under Sections 307/34 IPC to which they pleaded innocence, and therefore, the trial commenced. 6. To substantiate the case against the accused-appellants, the prosecution examined as many as 10 (ten) witnesses including the victim/informant/PW2, the Investigating Officer, and the Medical Officer 7. After closure of the prosecution evidence, statements of the accused-appellants were recorded, under Section 313 Cr.PC, and in their such statements, they denied the allegations made against them. The defence did not adduce any evidence. 8. Pw1, Jiban Doley, whose name appears in the FIR itself, is a person who had rescued the victim/informant/PW2 from the river Brahmaputra, stated in his evidence that the victim as well as the accused-appellants are his relations. The defence did not adduce any evidence. 8. Pw1, Jiban Doley, whose name appears in the FIR itself, is a person who had rescued the victim/informant/PW2 from the river Brahmaputra, stated in his evidence that the victim as well as the accused-appellants are his relations. It has further been stated in his evidence that, on 19.6.2010, i.e. on the date of occurrence, there was a fight between accused-appellants on one side and the informant/victim on the other side. According to his evidence, the accused-appellants alleged that the victim/informant/PW2 was indulging in practising witchcraft, and therefore, they had put him in a gunny bag and threw in the river Brahmaputra at about 12:00 am. He witnessed the accused-appellants throwing the gunny bag in the river and then he recovered the victim/informant/PW2 (his paternal uncle) there inside the gunny bag from the river. He also witnessed that the accused-appellants had put the head of the victim/informant/PW2 in the water several times. The FIR also named the PW3, Rajen Doley, as one of the persons who had rescued the victim, yet in his evidence, he has expressed his ignorance about the occurrence. 9. Pw8, Amar Doley, is also one of those, named in the FIR, who had recovered the victim from the river in a gunny bag. This witness was declared hostile by the prosecution and was subjected to cross-examination. But, the fact remains that, in his evidence, he has clearly stated that he came to know from the villagers that the accused-appellants wanted to commit murder of the victim/informant/PW2 as he was allegedly practising witchcraft. In the case of a hostile witness, it is a settled position of law that the part of the evidence, which is trustworthy and reliable, can be acted upon by the court. In the instant case, the allegation is that the victim/informant/PW2, practised witchcraft, and therefore, he was thrown in the river Brahmaputra, putting him in a gunny bag. This fact has been stated by the PW8, Amar Doley, in his evidence. 10. Pw5, wife of the victim/informant/PW2, is found to have corroborated the evidence of the PW1 in respect of the fact that her husband PW2/informant/victim was dragged away and thrown in the river Brahmaputra, putting him in a gunny bag by the accused-appellants. 11. This fact has been stated by the PW8, Amar Doley, in his evidence. 10. Pw5, wife of the victim/informant/PW2, is found to have corroborated the evidence of the PW1 in respect of the fact that her husband PW2/informant/victim was dragged away and thrown in the river Brahmaputra, putting him in a gunny bag by the accused-appellants. 11. It appears from the evidence of PW5/wife of the informant/victim/PW2 that the villagers came to their house in the night, on the date of occurrence, took her husband out of their house, and thereafter put him in a gunny bag, stitched a rope to close the bag, and then her husband was taken towards the river and thrown him there in the river. But, she did not go to the river as she was not allowed to proceed to the river by the co-villagers who had taken her husband/PW2/victim out of her house in a conditions stated above. 12. Pw2 himself is the victim as well as the informant. He has narrated the fact leading to his taking away forcibly by the accused-appellants and Others as well as putting him in a gunny bag and throwing him in the river Brahmaputra in the midnight on the date of occurrence. At the relevant time of occurrence, he was sleeping with his wife/PW5 and his son. He was initially taken to the house of the accused-appellant, Smti. Sabita Doley, and there, all the accused appellants alleged him to have indulged in practising witchcraft, which was, of course, false. The statement made by him in his evidence is corroborated by PW1 and PW5 on material particulars, as discussed above. 13. The evidence of PW6 and PW7 does not appear to have much relevance as they have not deposed on the facts of the case. PW9 and PW10, being the Medical Officer and the Investigating Officer, are formal witnesses. According to the PW9, doctor, there is no external injury on the person of the victim/informant/PW2, and therefore, the part of an offence under Section 307 IPC which would have constituted an offence punishable for 10 years, had there been hurt, is not applicable in the instant case. 14. As stated above, PW10, being the Investigating Officer, his evidence is of routine nature from the receipt of the FIR till completion of the investigation, ultimately, resulting in submission of the charge-sheet. 14. As stated above, PW10, being the Investigating Officer, his evidence is of routine nature from the receipt of the FIR till completion of the investigation, ultimately, resulting in submission of the charge-sheet. His cross-examination by the defence does not appear to have improved the stand of denial taken by the defence through cross-examination of the witness. 15. That being so, the evidence being as above, it appears that the consistent and corroborative evidence of PW1, PW2 and PW5, leads no doubt in the mind of the court that it was none but the accused-appellants, who had attempted to commit murder of the victim/informant/PW2, putting him in a gunny bag, wrapping the gunny bag, and then throwing him in the river Brahmaputra. He would have definitely died had PW1, as stated above, would not have recovered him in the gunny bag from the river Brahmaputra. 16. On such evidence in the record, it does not appear that the order recording conviction of the accused-appellants, by the learned Sessions Judge, Jorhat, suffers from any such illegality and impropriety, necessitating interference by this court, in exercise of its appellate jurisdiction. 17. So far the substantive sentence imposed upon the accused-appellants is concerned, it has been submitted by learned counsel for the accused-appellants that considering the gravity and nature of the offence, substantive sentence of rigorous imprisonment for 7 years is in the higher side. I have considered such submission in combination with the evidence on record, and this court is of the view that rigorous imprisonment for 6 years for accused-appellants, Sri Bidhan Doley and Kukhram Doley, would have been sufficient. In respect of the accused-appellant, Smti. Sabita Doley, considering the fact that she is a woman as well as the fact that she did not initiate the incident, and rather, it was the other accused-appellants who had initiated the incident, this court is of the view that if her substantive punishment in the form of rigorous imprisonment for 7 years is reduced to rigorous imprisonment for 5 years, the same would be proportionate to her guilt, and accordingly, her substantive sentence is reduced to 5 years retaining the punishment in the form of fine and default clause as it is. 18. 18. That being so, substantive sentence of rigorous imprisonment upon the accused-appellants, Sri Bidhan Doley and Kukhram Doley, is reduced to 6 years retaining the fine amount and default clause as it is. 19. Accordingly, the appeal is partly allowed. 20. Send down the LCR along with a copy of this judgment.