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2019 DIGILAW 446 (GAU)

Ajit Tassa @ Tutan v. State of Assam

2019-04-09

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : A.M. Bujor Barua, J. 1. Heard Ms. A. Begum, learned Amicus Curiae for the appellant. Also heard Mr. B. Sarma, learned Additional Public Prosecutor, Assam. 2. An ejahar dated 27.05.2004 was lodged by Naresh Tassa, son of Late Khuresh Tasa stating that on 26.06.2004 at about 1.30 A.M, when his elder brother, Patal Tasa was playing cards with some persons at the Naatghar in the Puja line, a resident of the line, namely, Tuton Tasa @ Amut Gopal Tasa, son of Gopal Tasa had struck in the neck of his elder brother with a sharp pointed weapon causing grievous injuries upon him. The injured elder brother died in the hospital later on. It was further stated that Kailash Tasa a resident on the same line was present and he had witnessed the incident. 3. PW-1 Naresh Tasa, the informant in his examination-in-chief deposed that he recognizes the accused whose name is Ajit Tasa @ Tuton. He deposed that when he was returning home after watching a movie, his brother Kailash had said that accused Ajit Tasa had assaulted his elder brother, Patal Tasa. Thereafter, he along with Kailash Tasa took Patal Tasa to the hospital, where he was declared dead. 4. PW-2, Kailash Tasa, son of Late Dunwa Tasa in his deposition stated that Patal Tasa was his elder brother and on the day of occurrence he was playing card at the puja held at Kamakhyabari. When he returned back after urinating, he saw that Patal Tasa was lying injured. The witness deposed that on being asked by him, the deceased had replied that accused Ajit Tasa has assaulted him. Thereafter Patal Tasa was taken to the hospital, where he died. 5. PW-6, Almi Tassa, wife of the deceased, in her examination-in-chief, stated that while she was sleeping, her neighbor Kailash Tasa came and informed that her husband was assaulted with a weapon. On being asked as to who had assaulted, he replied that Ajit Tasa had assaulted the deceased. It was further deposed that Kailash Tasa had brought her husband in an injured state and kept him in their courtyard. It was further deposed that she went near her husband and saw that blood was gushing out from a wound on his back. On being asked, by the PW-6, her husband had stated that Ajit Tasa had struck him on his back with a knife. 6. It was further deposed that she went near her husband and saw that blood was gushing out from a wound on his back. On being asked, by the PW-6, her husband had stated that Ajit Tasa had struck him on his back with a knife. 6. When we examine the statement of PW-2 and PW-6 under Section 161 Cr.P.C, we notice that PW-2 was not even examined by the police and the statement under Section 161 of Kailash Tasa is that of Kailash Tasa, son of Patal Tasa, whereas PW-2 is Kailash Tasa, son of Late Dunwa Tasa. In the statement under Section 161 of Cr.P.C., of Kailash Tasa, he had clearly stated that he is the son of the deceased, whereas PW-2, Kailash Tasa, son of Dunwa Tasa is stated to be a neighbor of the deceased, Patal Tasa. Secondly, in the statement under Section 161 Cr.P.C., Kailash Tasa, son of Patal Tasa no where stated that the deceased had told him that the accused Ajit Tasa had assaulted him. 7. When we examine the statement under Section 161 Cr.P.C., in respect of PW-6, Almi Tassa, wife of Patal Tasa, we take note that under Section 161 Cr.P.C., it was stated that upon hearing about the incident she proceeded to the place of occurrence, where she found the deceased to be in an unconscious state. Thereafter, the deceased was taken to the hospital where he died. There are glaring contradictions to the extent that in her statement under Section 161 Cr.P.C., she says that she went to the place of occurrence, found the deceased unconscious and then took him to the hospital where he died and in her deposition in examination-in-chief she states that Kailash Tasa had brought her husband in an injured state and kept him in the courtyard and upon being asked, the deceased told her that the accused Ajit Tasa had assaulted him. The prosecution case is solely based on the aforesaid two oral dying declarations as deposed in the evidence of PW-2 and PW-6. As both the oral dying declarations are doubtful because of the manner in which it were made, as indicated above, we are of the view that it would be unsafe to convict the accused appellant of an offence under Section 302 IPC solely based upon such oral dying declaration. 8. Mr. As both the oral dying declarations are doubtful because of the manner in which it were made, as indicated above, we are of the view that it would be unsafe to convict the accused appellant of an offence under Section 302 IPC solely based upon such oral dying declaration. 8. Mr. B Sarma, learned Additional Public Prosecutor also raised the contention that from the evidence of PW-3 and PW-5, it is established that the weapon used in the offence was recovered upon being shown by the accused person. We have perused the materials on record and find that there is nothing to indicate to link the weapon so recovered with that of the offence committed and secondly, the required procedural requirement to be followed to link up such weapon with that of the occurrence had also not been done by the prosecution. Accordingly, the deposition of PW-3 and 5 that the weapon was recovered at the instance of the accused also do not come to the aid of the prosecution to sustain the conviction against the accused appellant. Accordingly, the conviction of the appellant by the Judgment and Order dated 19.09.2016 of the learned Session Judge, Dibrugarh in Case No.132/2006 convicting him under Section 302 IPC and sentencing him to rigorous imprisonment for life and to pay a fine of Rs.2000/- in default, thereof further imprisonment of 3(three) months is accordingly, set aside. 9. The accused appellant is set at liberty, provided he is not wanted in connection with any other case. 10. As regards, the state of investigation made in serious criminal matters in the State of Assam, we had a deliberation with the learned Advocate General and for the purpose, it is deemed appropriate that the matter be listed again on 11.04.2019. 11. Before parting with the record, we appreciate the valuable service rendered by Ms. A Begum, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/- as legal fees be paid to her by the High Court Legal Service Committee upon production of a copy of this judgment and order. 12. Send back the LCR.