Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 270 (GAU)

Som Soren Chirang v. State Of Assam

2020-02-25

MIR ALFAZ ALI, S.HUKATO SWU

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Mr. A Tiwari, learned Amicus Curiae and Mrs. S Jahan, learned Additional Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order passed by learned Sessions Judge, Chirang in Sessions Case No. 112(RKT)/2016, whereby the learned sessions judge convicted the accused-appellant under Section 302 of IPC and sentenced him to rigorous imprisonment for life and to pay a fine of Rs.5000/-, with default stipulation. 3. As per prosecution case, on 09.12.2015, at about 3.30 pm the appellant hacked his five year old son, Lakhiram Soren with a khookri on the bank of Nijla river. He also assaulted his elder son, Mongal Soren, who was aged about ten years. The elder son Mongal Soren having received the injury ran to a shop at Deosri and informed the villagers, who apprehended the appellant with the blood strained Kukuri. 4. The PW-1(Som Tudu) lodged the FIR (Ext-4) on the basis of which Runikhata PS Case No. 67/2015 was registered under Sections 324/302/327 IPC. During investigation, police recorded the statements of the witnesses seized the alleged weapon of offence conducted inquest on the body and send the body for post-mortem examination. PW-11 (Dr. Rajib Sonowal) who conducted the post-mortem examination, found the following injuries on the body of the victim: 'One sharp cutting wound around the interior aspect of neck with sharp cutting edge from lateral to medial aspect (left to right) and size about 3 x 2 cm. Including carotid artery of left side.' In the opinion of doctor the death was caused due to shock and haemorrhage and respiratory failure due to injury sustained. The Injury was anti-mortem caused by sharp weapon and death was within six to twelve hours from the post-mortem examination. 5. On conclusion of investigation, charge-sheet was laid against the present appellant, under Section 324/302 IPC. 6. During trial, learned Session judge framed charges against the accused-appellant under Section 302/324 IPC to which the appellant pleaded not guilty. In order to bring home the charges, 11 (eleven) witnesses were examined by the prosecution. Court also examined one witness as CW-1. On appreciation of evidence, learned Session judge convicted the appellant under Section 302/324 IPC and awarded sentence, as has been indicated above. 7. We have considered the submission made by the learned Amicus Curiae and the learned Additional Public Prosecutor. 8. Court also examined one witness as CW-1. On appreciation of evidence, learned Session judge convicted the appellant under Section 302/324 IPC and awarded sentence, as has been indicated above. 7. We have considered the submission made by the learned Amicus Curiae and the learned Additional Public Prosecutor. 8. The first witness examined by the prosecution is PW-1 (Som Tudu), who lodged the First Information Report. He was not an eye witness to the occurrence and lodged the FIR on the basis of the information received from PW-2, the son of the accused. 9. The elder son of the accused namely, Manzul Soren has been examined as PW-2. He was aged about nine years at the time of adducing evidence. Learned Session Judge recorded the deposition of this child witness after having tested his competency to adduce evidence by voir dire test. In his examination-in-chief, the PW-2 stated that his father hacked on the neck of his brother with an axe near the river. He also stated that the accused also dealt a blow on his head with the axe and he sustained injury. He further stated that after receiving the injury he had fled away from the place of occurrence and informed the people and the police. His cross- examination was recorded after a gap of about eight months. During cross-examination, he denied to have seen the accused inflicting injuries to his brother, and in fact he totally denied the involvement of the appellant. 10. PW-3(Lakhiram Kishko) was a hearsay witness. PW-8 (Smti Ratni Soren) came later on and had seen the body and therefore she was also a post occurrence witness. 11. PW-4 (Raju Hasda) deposed that while he was at the relief camp, the occurrence took place on the road near Nijla river at about 3 pm. The accused Som Soren dealt a blow to his younger son with Khukri. He also chased his elder son, who fled away and he had seen the incident. He also stated that police seized the khukri vide Ext-1 in his presence. During cross-examination, he stated that the elder son of the accused came running to him and reported about the occurrence. Having learnt about the occurrence from the PW-2, he rushed to the place of occurrence and found the accused giving blows to his younger son. 12. PW-5 (Smti. During cross-examination, he stated that the elder son of the accused came running to him and reported about the occurrence. Having learnt about the occurrence from the PW-2, he rushed to the place of occurrence and found the accused giving blows to his younger son. 12. PW-5 (Smti. Sushila Hembram) deposed that at the time of occurrence, she was in her house and she had seen both the sons of the accused running, being chased by their father (accused), who had an axe in his hand. She raised protest coming from the opposite direction but the accused gave a blow with the axe on the neck of Lakhiram Soren, who died on the spot. She further stated that the accused also inflicted injuries to his elder son (PW-2) on the back side of his head. During cross-examination, she stated that at the time of occurrence she was washing utensils and the elder son of the accused told her that accused was chasing his younger brother. Having learnt from the elder son of the accused about the occurrence, she rushed to the place of occurrence. It was also elicited from her cross-examination, that she did not learnt about the occurrence from anyone except PW-2, the son of the deceased. During cross-examination, she also admitted to have not stated before the police that she had seen the accused chasing his son. The statement of PW-5 was also recorded under Section 164 Cr.P.C. which was proved as Ext-9. In her said statement recorded under Section 164 Cr.P.C. The PW-5 stated that she was told by her brother Mangal Soren that Som Soren was about to kill his own son. Immediately, she rushed to the place of occurrence and found that Som Soren was hacking his own son, aged about 4/5 years, on the bank of Nijla river. 13. PW-6 (Sri Sibcharan Murmu) and PW-7 (Sri Ruta Soren) stated that while they were sitting in the VCDC office, the elder son of the accused namely, Mangal Soren came and told that his father inflicted injury to his brother Lakhiram Soren. Immediately, they went to the place of occurrence and found that Lakhiram Sorem died. They also found the accused there, who was washing his hand, keeping the axe on the ground. Accordingly, they apprehended the accused along with other villagers. 14. Immediately, they went to the place of occurrence and found that Lakhiram Sorem died. They also found the accused there, who was washing his hand, keeping the axe on the ground. Accordingly, they apprehended the accused along with other villagers. 14. PW-9 was another doctor who attended the PW-2 and found a cut injury on the lower back side of the head size 14 x cm with two stitches. Injuries were stated to be simple. In cross-examination, the doctor further stated that the injury sustained by Mangal Soren (PW-2) could be caused due to sudden fall. 15. On our assessment of the evidence, we find that besides PW-2, the elder son of the accused, PW-4 and PW-5 claimed to be the eye witnesses of the occurrence and rest of the witnesses were post occurrence witnesses and they did not have any personal knowledge about the occurrence. PW-4, though stated in his examination-in-chief, that he had witnessed the incident himself, but in his cross-examination, he admitted that at the time of occurrence he was at the relief camp, where PW-2 came running and informed about the matter and only after having come to know about the occurrence from PW-2, he ran to the place of occurrence, which was on the bank of Nijla river. It was further confirmed in cross- examination, that after getting the information from the elder son, they went to the place of occurrence. The sketch map shows that the place of occurrence was at a considerable distance. If his statement in cross-examination is considered, then he could not have the opportunity of witness the occurrence and as such though, PW-4 projected himself to be an eye witness scrutiny of his evidence both in chief and in cross suggests that he was not an eye witness; rather, he was also a post occurrence witness. 16. PW-5, who also projected herself as an eye witness, stated that she had seen the accused chasing both his sons with an axe and in spite of her protest, the accused assaulted his sons and his younger son Lakhiram Soren died as a result of the assault. However, during cross- examination, this witness also stated that the occurrence took place about 70 meter away from his house and she came to know about the occurrence from the son of the deceased and thereafter she proceeded to the place of occurrence. However, during cross- examination, this witness also stated that the occurrence took place about 70 meter away from his house and she came to know about the occurrence from the son of the deceased and thereafter she proceeded to the place of occurrence. Her statement, recorded under Section 164 Cr.P.C., also shows that in her previous statement she stated that his brother Mangal Soren told her about the occurrence and immediately she went to the place of occurrence and noticed that Som Soren (accused) was chasing his 4/5 years old son. The statements of this witness during examination-in-chief and in cross-examination and also her statement recorded under Section 164 Cr.P.C. as well as 161 Cr.P.C. shows that her statements at various stages are self contradicting and mutually destructive. In view of the glaring inconsistency in her statement at various stages, her claim to be an eye witness is also hardly believable. Therefore, the PW-5, though projected to be an eye witness, she did not have the opportunity to witness the occurrence and as such, she was also nothing but a post occurrence witness. This aspect of the matter found to have escaped the notice of the learned trial court. 17. After discarding the oral testimony of PW-5 and PW-6, we are left with the sole testimony of PW-2, who is consider to be a star witness in this case, inasmuch as, he also sustained injury. This PW-2 was aged about seven years at the time of occurrence and while adducing evidence in court, he was about nine years. We notice that this witness although in examination-in-chief, implicated the accused in the commission of offence, during cross- examination, which was taken after about eight months, he has given a different statement totally exonerating the accused and stated that he did not see as to who inflicted the injury to his brother. Learned Session Judge having taken into account that the cross-examination was recorded after eight months, disbelieved the cross-examination part however, took into account only his examination-in-chief. On careful scrutiny of the oral testimony of this child witness in examination-in-chief, we find that his statement in examination-in-chief also suffers from infirmities. All the witnesses stated that the occurrence took place at 3.00 to 3.30 pm, whereas in examination-in-chief PW-2 stated that the occurrence took place at night. On careful scrutiny of the oral testimony of this child witness in examination-in-chief, we find that his statement in examination-in-chief also suffers from infirmities. All the witnesses stated that the occurrence took place at 3.00 to 3.30 pm, whereas in examination-in-chief PW-2 stated that the occurrence took place at night. Again he stated that his father hit him on his neck with an axe and he sustained injuries. 18. PW-9 (Dr. Falbor Rahman) who attended PW-2, stated that there was only one simple cut injury, which in the opinion of the doctor, could also be caused by sudden fall. The medical evidence again does not support the oral testimony of this witness regarding the accused hitting him with a heavy weapon like axe. It is no doubt true, that the age of the child witness is not the criterion to test his credibility rather, it is the development of mental faculty to understand the question put to him and capacity to give reasonable answer thereto are required to be considered, while appreciating the evidence of a child witness. If the statement of PW-2 recorded in his examination-in-chief is considered, we find that all his statement during examination-in-chief did not reflect the true version and as such having regard to his statement recorded in examination-in-chief as well as in his cross-examination, the possibility of this witness being tutored cannot be ruled out. In the present case as already indicated above, except the child witness, (PW-2), there was no other witness to the occurrence and the testimony of the child witness (PW-2) appears to have suffered from glaring inconsistency rendering him unworthy of truth. Therefore, in the facts and circumstances of the case, we are of the considered opinion that it shall be extremely unsafe to rely upon the oral testimony of PW-2. Once the oral testimony of the PW-2 is discarded, literally no evidence is left with to support the prosecution case. 19. In view of the facts and circumstances of the case, we are of the considered opinion that prosecution has failed to establish the charge against the appellant beyond reasonable doubt. Accordingly, we set aside the conviction and sentence of the appellant. We do not interfere with the order of the learned Sessions Judge as regards compensation under Section 357(A). 20. The appellant shall be released, if not required in any other case. 21. Accordingly, we set aside the conviction and sentence of the appellant. We do not interfere with the order of the learned Sessions Judge as regards compensation under Section 357(A). 20. The appellant shall be released, if not required in any other case. 21. This Court appreciates the assistance rendered by the learned Amicus Curiae and an amount of Rs.7500/- is granted to him as remuneration, which shall be paid by the Gauhati High Court Legal Service Committee. 22. Appeal is allowed. 23. A copy of this judgment and order be sent to the Superintendent of District Jail, Kokrajhar. 24. Send back the LCR with a copy of this judgment and order.