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2019 DIGILAW 550 (GAU)

Sujit Mura v. State of Assam

2019-05-06

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Ms. R.D. Mozumdar, learned amicus curiae for the appellant. Also heard Ms. B Bhuyan, learned Additional Public Prosecutor, Assam. 2. Office note dated 14.07.2017 shows that notice had been served on the informant/respondent, but none appears. 3. An ejahar dated 03.01.2015 was lodged before the Office-in-charge of Dhola police station by Rajen Mura, inter-alia stating that on 02.01.2015 at about 6.00 pm, Sujit Mura, son of late Sona Babu Mura had an altercation with his elder brother Bhupen Mura over some matter whereupon, Sujit Mura had inflicted a cut blow with a sharp dao on the left leg on his elder brother Bhupen Mura on the main road of Lafangkola village, thereby causing grievous injuries. The elder brother of the informant was taken to Doomdooma Govt. hospital for treatment but he breathed his last at about 9.00 PM while he was undergoing treatment. In the aforesaid circumstances, the accused/appellant was charged for having committed an offence punishable under Section 302 of the Indian Penal code. 4. PW-1 Ranjit Mura in his deposition stated that Sujit Mura had assaulted Bhupen with a kalam dao in the evening and he came to know about the incident from his mother and the neighbouring people. In cross, the witness stated that there was no enmity between the accused and his deceased brother and the occurrence took place near the house of Gakul Mura. 5. PW-5 stated that when he was warming at the fire place in his house at about 7/8 PM on a given day of January 2015, he heard someone shouting "kati dile kati dile", meaning thereby that someone had been cut. When he came out of his house he saw deceased Bhupen with injuries on his leg. On being asked, Bhupen Mura told that he was assaulted by accused Sujit Mura. A suggestion was made in cross that PW-5 had not stated before the police that Bhupen had not told him that he was assaulted. 6. PW-7 Gakul Munda also stated that at the time of the incident he was in his house and was sleeping, when his son came and woke him up and told him that something had happened in front of their house. When he woke up and came out of the house he saw that Bhupen was lying injured with cut injuries on his leg. When he woke up and came out of the house he saw that Bhupen was lying injured with cut injuries on his leg. On being asked, he told that he was assaulted by accused Sujit Mura. A suggestion was made to the witness that he had not stated before police that Bhupen told him that he was assaulted by the appellant. 7. In a suggestion in cross as against PW-5, Bisri Mandal, she stated that it is not a fact that she had not stated before police that Bhupen told her that he was assaulted by the accused Sujit Mura. Similarly, in the cross-examination of PW-7, it was stated that it not a fact that he had not stated before police that Bhupen told him that he was assaulted by the accused. 8. PW-14 the investigating officer Sri Padma Gogoi in his cross-examination stated that the witness Birsi Munda, PW-5 did not state before him that Bhupen told her that he was assaulted by accused Sujit Mura. It was further stated by PW-14 that witness Gakul Munda (PW-7) also did not state before him that, Bhupen told him that he was assaulted by accused Sujit Mura. We have also examined the statement under Section 161 Cr.P.C., of both PW-5 and PW-7, from whom it is seen that the said two witnesses had not stated anything under Section 161 Cr.P.c., that the deceased Bhupen had told them that he was assaulted by the accused Sujit Mura. 9. The medical evidence reveals that a cut injury was inflicted on the left leg over the left knee and the leg had almost been severed off except being attached with a thin layer of skin. 10. Be that as it may, whatever the nature of offence may have been committed, but the evidence on record does not reveal of any material to arrive at a conclusion beyond reasonable doubt that it is the accused alone who had committed the offence. We have also taken note that learned Sessions Judge, Tinsukia had wholly believed the evidence of PW-5 & PW-7, as regards the dying declaration being made by the deceased before death. We have also taken note that learned Sessions Judge, Tinsukia had wholly believed the evidence of PW-5 & PW-7, as regards the dying declaration being made by the deceased before death. But because of the evidence of PW-5 in his cross- examination, the evidence of PW-14 the I/O and the statement recorded under Section 161 Cr.P.C., of PW-5 and PW-7, we are disinclined to believe the oral dying declaration of the deceased as relied upon by the learned Sessions Judge based upon the deposition- in-chief of the PW-5 and PW-7. Accordingly, we are of the view that the prosecution had failed to prove beyond reasonable doubt that it is the accused/appellant who had committed the offence of inflicting injuries on the deceased Bhupen. Accordingly, the conviction of the accused/appellant by the learned Sessions Judge, Tinsukia in Sessions Case No.82(T)/2015 dated 09.12.2016 under Section 302 of the Indian Penal Code and sentencing him to rigorous imprisonment for life and to pay a fine of Rs.1,000/- in default thereof to rigorous imprisonment for further 6 (six) months is set-aside. 11. The accused be set at liberty forthwith provided he not being required for any other offence. It is contended by Ms. B. Bhuyan, learned Additional Public Prosecutor that the accused had stated before the police that he had a quarrel with the deceased Bhupen and as a result thereof, had inflicted a dao blow on the leg of the deceased. Even if we accept it, the same would be an admission by the accused before the police, which would be inadmissible under the law. 12. Appreciating the assistance rendered by Ms. R.D. Mozumdar, learned Amicus Curiae, we hereby provide that she will be entitled to professional fees of Rs.7500/-. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Ms. Mozumdar. 13. The appeal stands allowed as indicated above. 14. Send down the LCR along with a copy of this judgment.