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2020 DIGILAW 373 (GAU)

Jatin Sil Sarma @ Jatin Sil v. State Of Assam

2020-03-12

MIR ALFAZ ALI

body2020
JUDGMENT Ma Seikh, J. - Heard Mr. MA Seikh, learned counsel for the appellant and Mr. TK Mishra, learned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order passed by the learned Sessions Judge, Dhubri in Sessions Case No.29/2008 whereby the appellants were convicted under section 304 (Part-II) IPC and sentenced to rigorous imprisonment for 4 (four) years. 3. As per the prosecution case, on 19.03.2007 at about 12.00 AM when the victim and his wife were sleeping, the appellants Jatin Sil Sarma and Kanteswar Sil came to their house and called her husband and when her husband opened the door they assaulted the victim with stick, torch light and also took away Rs.10,000/- and also threatened them with dire consequences by showing dagger. She raised alarm, hearing which the neighbouring people assembled and the appellant left the place of occurrence. The wife of the victim (Pw-1) lodged the FIR on the basis of which Golakgaj PS Case No.109/2007 was registered under sections 448/325/380/506 IPC. During investigation the victim succumbed to the injuries and as such, section 302 IPC was also added. After the death of the victim the body was inquested and subjected to post-mortem examination. 4. Pw-5 Dr. Ramani Talukdar, who conducted the post-mortem examination, found the following injuries: wxyz "Bruise around the left eye causing black eye left 4" 3" zyxw wxyz Bruise in left side of face 4" 3" zyxw wxyz Injury at left elbow with haematoma 2" 2" zyxw wxyz Haematoma 4" 3" in left parietal area zyxw wxyz Fracture of left parietal bone. zyxw wxyz Huge extra dural haematoma in left parietal area. zyxw wxyz Brain congested in left side of hemisphere, spinal cord intact." zyxw wxyz In the opinion of the doctor, death was caused due to shock and haemorrhage as a result of the injury sustained by him. On conclusion of investigation charge-sheet was laid against the appellant under section 302/34 IPC and eventually both the accused stood trial. zyxw 5. In the course of trial learned Sessions Judge framed charge under section 302 IPC to which the appellant pleaded not guilty. In order to bring home the charge 10 (ten) witnesses were examined by the prosecution and on appreciation of the evidence, learned Sessions Judge convicted the appellants under section 304 (Part-II) IPC and awarded sentence as has been indicated above. 6. In order to bring home the charge 10 (ten) witnesses were examined by the prosecution and on appreciation of the evidence, learned Sessions Judge convicted the appellants under section 304 (Part-II) IPC and awarded sentence as has been indicated above. 6. I have considered the submissions made by the learned Amicus Curiae as well as learned Addl. PP and scrutinised the evidence brought on record. 7. The first witness examined by the prosecution was the informant herself who happens to be the wife of the victim. She deposed in her evidence that at about 12''o clock at night the appellants Jatin Sil Sarma and Kanteswar Sarma dragged her husband from the house and assaulted him. When she raised alarm, the neighbouring people assembled and the appellants left the place. She also stated that there was no electricity at the time of the occurrence and the appellants entered her house by breaking the door and the victim was assaulted at the courtyard. During crossexamination she stated that after the occurrence her husband was taken to the pharmacy and on the next day she informed the police and the police send the victim to Dhubri Civil Hospital for treatment. It was also elicited in her cross-examination that very often the victim used to create nuisance in the locality and there were village meetings on several occasion where the victim was held guilty. It is also stated that before two days of the occurrence the victim was assaulted by the village people for misbehaving a lady. She further stated that after the accused persons left the place, she raised alarm and then only the other people came. It was also elicited during cross-examination that she obtained a sum of Rs.3,50,000/- under the Jeevan Jyoti Scheme where she had stated that her husband died natural death. 8. Pw-4 also projected to be an eye witness and deposed that hearing hue and cry raised by Pw-1 he arrived at the place of occurrence and found that the appellants were assaulting the victim. He also stated that both the appellants assaulted the victim with sticks. During cross-examination it was elicited that before he reached the place of occurrence his mother also came there. This witness also stated that there was no electricity and the occurrence took place in the darkness and about 100 people assembled in the house of the victim. He also stated that both the appellants assaulted the victim with sticks. During cross-examination it was elicited that before he reached the place of occurrence his mother also came there. This witness also stated that there was no electricity and the occurrence took place in the darkness and about 100 people assembled in the house of the victim. This witness also stated in his cross-examination that the appellant very often created nuisance in the locality and therefore, several village meetings were held against him. The evidence of Pw-4 is found to have been belied by Pw-1, the wife of the deceased, inasmuch as, according to her till the appellants left the place of occurrence she did not raise any alarm and only after the accused persons having left the place of occurrence she raised alarm and thereafter the villagers assembled. If the evidence of Pw-1 is believed, then Pw-4 could not be an eye witness nor he could have the opportunity to see the occurrence. Therefore, the testimony of Pw-4 that he had seen the accused persons assaulting the victim is hardly worthy of inspiring confidence. 9. Pw-2 & Pw-8 testified that hearing alarm they came to the place of occurrence and on being asked by them the victim told the name of the present appellant. However, in cross-examination Pw-8 admitted that he did not made any such statement before police. The previous statement of Pw-2 which was confirmed by the Pw-10, Investigating officer shows that Pw-2 also did not state before police regarding the so called dying declaration by the victim. This omission of materials facts on the part of Pw-2 & Pw-8, in my considered view amounted to contradiction and no credibility can be attached to the oral testimony of these two witnesses as regards the so called dying declaration of the victim as deposed by Pw-2 & Pw-8. 10. Pw-3 was declared hostile. Pw-7 was also a post occurrence witness and he only testified regarding seizure of stick from the house of the victim. If the evidence of Pw2, pw-4 & Pw-8 are discarded, the prosecution is left with the sole testimony of Pw-1, the wife of the deceased. 11. 10. Pw-3 was declared hostile. Pw-7 was also a post occurrence witness and he only testified regarding seizure of stick from the house of the victim. If the evidence of Pw2, pw-4 & Pw-8 are discarded, the prosecution is left with the sole testimony of Pw-1, the wife of the deceased. 11. A careful scrutiny of the oral testimony of Pw-1 shows that her version in the FIR and that in Court was grossly inconsistent and the genesis of the occurrence as deposed by her appears to be contradictory with her previous statement made in the FIR lodged by herself. Another aspect appears from her evidence is that till the appellants had left the house after assaulting the victim she did not raise any alarm and she raised alarm only after the appellants left the place of occurrence. If the testimony of this witness in Court and her previous statement are taken into consideration, it appears that she was perhaps trying to suppress the real genesis of the occurrence from the Court or did not tell the truth before the Court. Evidently there was enmity between the accused and the victim. It is also in the evidence that before the occurrence, the victim was assaulted by the public for creating nuisance in the locality. All these facts and circumstances, more particularly the glaring inconsistencies in the statement of the Pw-1 at different stages of the proceeding, shows that Pw-1 also does not fall in the category of fully reliable witness and as such, no conviction can be based solely on the oral testimony of Pw-1 in absence of any independent corroboration which is totally absent in the present case. This apart, the attending facts and circumstances that the victim was assaulted by public before the occurrence and the conduct of the Pw-1 not raising any alarm till the appellants had left the place and not taking the victim for treatment coupled with the glaring inconsistencies in the oral testimony of the lone witness Pw-1 also cast a serious doubt on the veracity of the prosecution story. 12. Therefore, in view of the above evidence and the facts and circumstances, I am of the considered opinion that the prosecution evidence was grossly inadequate to bring home the charge against the appellant or at least the appellant is entitled to the benefit of doubt. 12. Therefore, in view of the above evidence and the facts and circumstances, I am of the considered opinion that the prosecution evidence was grossly inadequate to bring home the charge against the appellant or at least the appellant is entitled to the benefit of doubt. Being of the above view, the impugned conviction and sentence of the appellant is set-aside and consequently the appeal stands allowed. 13. Since the appellants are already in enlargement, the bail bond stands discharged. 14. Send down the LCR along with a copy of this judgment.