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2018 DIGILAW 844 (GAU)

SANJIT DEB v. STATE OF ASSAM

2018-05-22

HITESH KUMAR SARMA

body2018
JUDGMENT AND ORDER : 1. This appeal is preferred under Section 374 (2) of the Cr.P.C. against the judgment and order dated 23-10-2009, passed by the learned Additional Sessions Judge (FTC), Sivasagar, in Sessions Case No. 3 (S-S) of 2008, under Sections 304 (Part-II) of the IPC, to suffer rigorous imprisonment for 5 (five) years and to pay a fine of Rs.2,000/-, in default, to suffer rigorous imprisonment for further period of 2 (two) months. 2. I have heard Mr. R Sarma, learned counsel appearing on behalf of accused-appellant, and Mr. TK Mishra, learned Additional Public Prosecutor, Assam. 3. The prosecution case, as appears from the evidence on record, is that on receipt of the information from the village Headman of Garmur Mirigaon, in writing, to the effect that two unidentified dead bodies were lying on the road of Garmur Mirigaon. Bihubor Police Outpost entered the same in the General Diary and initiated preliminary investigation. Thereafter, the SI of Police of Bihubor Police Outpost, Sri Jatindra Nath Gogoi, lodged an FIR with the Simalaguri Police Station to the effect that Md. Supiter Ali, Mazzan Ali and Raju Bodo were on their way back to home, after enjoying cinema at Santak Tea Estate, were killed by some unknown persons with sharp weapon. On the basis of the FIR, Simalaguri Police Station registered a case, being Simalaguri Police Station Case No. 81/2005, under Sections 302/34 of the IPC. 4. The police investigated into the case, arrested the accused-appellant, forwarded him to the judicial custody, visited the place of occurrence, and finally, on completion of the investigation, submitted charge-sheet against the six persons including the accused-appellant, under Sections 302/34 of the IPC. 5. After exhausting all required formalities, on appearance of the accused-appellant before the trial Court of learned Additional Sessions Judge (FTC), Sivasagar, he was furnished copies as required under Section 207 of the Cr.P.C. and after hearing him through his learned State defence counsel, framed a formal charge against him under Section 302/34 of the IPC. The accused-appellant pleaded not guilty while the charge was explained to him. 6. In this case, to bring home the guilt of the accused-appellant, the prosecution examined as many as 11 witnesses including the Medical Officer and the Investigating Police Officer, who were subjected to cross-examined by the defence. 7. The accused-appellant pleaded not guilty while the charge was explained to him. 6. In this case, to bring home the guilt of the accused-appellant, the prosecution examined as many as 11 witnesses including the Medical Officer and the Investigating Police Officer, who were subjected to cross-examined by the defence. 7. After closer of the prosecution evidence, statement of the accused-appellant was recorded by the learned trial Court, under Section 313 of the Cr.P.C. The accused-appellant, in his such statement, denied the accusation levelled against him and also declined to adduce defence evidence. On conclusion of the trial, the learned trial Court convicted and sentenced the accused-appellant as aforesaid. 8. I have meticulously examined the judgment appealed against as well as the evidence of 11 witnesses as available on record of the learned trial Court. 9. Dr. Udayaditya Rajkhowa, examined as PW8, conducted the post mortem examination on the dead bodies of the deceased and found cut injuries, apart from other injuries in the bodies of the deceased persons and all the injuries were found to be ante mortem. He has also narrated different kinds of injuries found in the dead bodies of the deceased during the post mortem examination, which have been specifically mentioned in the judgment of the learned trial Court. As regards the deceased, Raju Boro and Merzan Ali, the opinion of the doctor that the cut injury over lower chest wall obliquely by the side of sternum with division of 6/7 cartilege 5cm x 2cm x 4cm in size, cutting through the ventricle, detected on the dead body of Raju Boro is sufficient to cause death of a person in ordinary course. Similarly the incised wounds over front chest wall on the left side of the sternum, 3cm away from the margin-cutting 5th, 6th and 7th ribs-cutting the heart 5cm x 2cm x 4cm in size and the incised wounds over lower side of the sternum longituillinglly placed-cutting through sternum and inside in the heart 4cm x 1cm x 4cm in size on the body of Marzen Ali are sufficient to cause death of a person in ordinary course. 10. In the instant case, there is no eye witness to the occurrence, but in their statement under Section 164 of the Cr.P.C. PW4 and PW5 are heard saying that the accused-appellant, Sanjib Deb and another assaulted the victims with Khukri. 10. In the instant case, there is no eye witness to the occurrence, but in their statement under Section 164 of the Cr.P.C. PW4 and PW5 are heard saying that the accused-appellant, Sanjib Deb and another assaulted the victims with Khukri. PW4 and PW5 have not stated this fact in evidence before the Court that they had seen the occurrence, but in the statement under Section 164 of the Cr.P.C., marked as Ext.6 and Ext. 7 respectively, they stated the effect that accused-appellant, Sanjib Deb and another assaulted the victim with Khukri. The accused-appellant, from the record, appears to have led the police to the place of recovery of the weapon, used in the offence. 11. PW4 and PW5 have implicated the accused-appellant of causing injuries to the deceased with Khukri, but this fact they have not stated before the learned trail Court, on oath; rather they have disowned such statements under Section 164 of the Cr.P.C. 12. On perusal of the judgment of the learned trial Court, it appears that the conclusion arrived at by the learned trial Court is based on the statement of the PW4 and PW5 under Section 164 of the Cr.P.C. As stated above, they have denied knowledge of such facts in the evidence before the Court, on oath. 13. The learned trial Court has also relied on discovery of weapons at the instance of the accused-appellant. Such disclosure leading to the discovery of the weapon of offence was not reduced into writing and on verbal statement, the investigating officer allegedly acted upon. The requirement of law is not only to reduce the same into writing, but such disclosure statement has to be recorded in the first person. Therefore, the alleged disclosure has no evidentiary value. 14. In view of above evidence on record, it does not appear that there is any such material brought out in the evidence to justify the conviction of the accused-appellant, beyond all reasonable doubt. The evidence of none of the witnesses are specific implicating the accused-appellant. The only statement against the accused-appellant made by PW4 and PW5 in their statements recorded under Section 164 of the Cr.P.C. is also not reliable in view of the evidence, on oath, before the Court not implicating the accused-appellant. 15. That being so, the conviction of the accused-appellant, recorded by the learned trail Court is not based on evidence on record. 15. That being so, the conviction of the accused-appellant, recorded by the learned trail Court is not based on evidence on record. Therefore, the appeal deserves to be allowed. 16. Accordingly, the appeal is allowed. The judgment and order of the learned trial Court is set aside. 17. Send down the LCR with a copy of this judgment.