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2020 DIGILAW 69 (GAU)

Mahal Boro v. State of Assam

2020-01-23

MIR ALFAZ ALI, S.HUKATO SWU

body2020
JUDGMENT : MIR ALFAZ ALI, J. 1. Heard Mr. R Sarma, Mr. KK Kalita, Mr. M Biswas and Mr. RK Medhi, learned counsel for the appellants and Ms. S Jahan, learned Additional Public Prosecutor, Assam. 2. These two appeals, arising out of the same judgment and order passed by the learned Sessions Judge, Kamrup, Amingaon, in Sessions Case No. 293/2014, are taken up together for hearing and disposal by this common judgment. By the impugned judgment the learned Sessions judge convicted the appellants under Section 302/34 IPC and sentenced them to imprisonment for life and to pay fine of Rs. 2000/- with default stipulation. 3. As per prosecution case, the victim Gunadhar Boro, brother of the informant, went missing from 17.01.2012 and on the next day, i.e., on 18.01.2012, at about 5 pm, he was found lying in the courtyard of the appellant, Udoy Boro in injured condition and was immediately shifted to hospital for treatment. However, on 20.01.2012, the victim succumbed to the injuries. 4. The PW-1, Nabajit Boro lodged an FIR (Ext-1) on the basis of which police registered Boko Police Station Case No. 271/2012, under Section 302/34 IPC and commenced investigation. In course of investigation, police recorded the statement of the witnesses, prepared inquest report and send the body for post-mortem examination. 5. Dr. N Barman, conducted the post-mortem examination on the body of the victim. The autopsy doctor was not examined by the prosecution. However, the post-mortem report, prepared by Dr. N Barman was proved as Ext-4. As per Ext-4, PM report, following injuries are found on the body of the victim: "(i) An abrasion of size 2 cm x 1 cm is present over forehead in midline, 2 cm above eyebrow. (ii) An abrasion of size 2 cm x 1 cm is present over left side of forehead at the level of eyebrow, 4 cm away from midline. (iii) A contusion of size 8 cm x 5 cm is present over left molar prominence, 3 cm away from midline. (iv) Frontal, left temporal, parietal and right parietal region of scalp are contused. (v) A linear fracture of length 5 cm is present over left temporal bone, running parallel to surgical suture 7 cm away from midline. (vi) An abrasion of size 5 cm x 4 cm is present over left shoulder. (iv) Frontal, left temporal, parietal and right parietal region of scalp are contused. (v) A linear fracture of length 5 cm is present over left temporal bone, running parallel to surgical suture 7 cm away from midline. (vi) An abrasion of size 5 cm x 4 cm is present over left shoulder. (vii) An abrasion of size 6 cm x 5 cm is present over back of left elbow joint. (viii) An abrasion of size 1 cm x 1 cm is present over lateral aspect of left knee joint. (ix) An abrasion of size 3 cm x 1 cm is present over lateral aspect of upper third of left leg, 5 cm below the elbow joint." 6. The PW-3, Dr. Putul Mahanta, deposed as to the cause of death from the post-mortem examination report (Ext-4), and stated that death was caused due to coma as a result of head injury. PW-3, Dr. Putul Mahanta, stated in his cross-examination that having regard to fact that most of the injuries sustained by the victim on the left side of the body, possibility of such injuries being caused by fall on rough and hard substance, could not be ruled out. On conclusion of the investigation charge-sheet was laid against both the appellants, who eventually stood trial before the court of sessions. 7. In course of trial, charge was framed under Section 302/34 IPC to which the appellants pleaded not guilty. Eight witnesses were examined by the prosecution to establish the charge and on appreciation of evidence, the learned Sessions Judge convicted the appellants under Section 302/34 IPC and awarded sentence as indicated above. 8. We have considered the submission made by the learned counsel for the appellants and the learned Additional Public Prosecutor and scrutinized the evidence brought on record. Evidently, there was no direct evidence except the oral testimony of the except PW-7 and the learned trial Court basically relying on the oral testimonies of PW-2, PW-7 and the medical evidence of PW-3 recorded the conviction of the appellants and awarded the sentence. 9. PW-7, Joymoti Boro @ Joyanti, who happens to be the step mother of the appellant, Mahal Boro @ Mohan Boro, stated in her examination-in-chief that Udoy Boro and Mahal Boro @ Mohan Boro have beaten up the deceased Gunadhar Boro and left him injured. 9. PW-7, Joymoti Boro @ Joyanti, who happens to be the step mother of the appellant, Mahal Boro @ Mohan Boro, stated in her examination-in-chief that Udoy Boro and Mahal Boro @ Mohan Boro have beaten up the deceased Gunadhar Boro and left him injured. She also stated that her house was situated in the close proximity of the place of occurrence. She stated to have brought the deceased to Boko hospital and then to Gauhati Medical College and Hospital, Guwahati. She further stated that the accused-appellants used to quarrel on land disputes between them. During cross-examination, she stated that though she has seen the appellants assaulting the victims at the time of incident, she neither tried to intervene nor informed anyone about the occurrence. She also admitted to have not stated before the police regarding involvement of Udoy Boro in the assault. According to PW-7 Gunadhar Boro was assaulted in the courtyard of Udoy Boro. It was also elicited from her cross-examination that her relationship with Mahal Boro @ Mohan Boro was strained. 10. PW-2, Laban Boro, stated that on 17.01.2012 he noticed the deceased Gunadhar Boro going to the residence of the accused, Udoy Boro during the evening hours. He also stated to have heard some disturbance in the residence of Udoy Boro but he did not go there. On 18.01.2012, around 4 pm, he came to know from the village people that Gunadhar Boro was lying injured in the courtyard of the accused Udoy Boro. It appears from his previous statement before police, which was confronted to him and confirmed by the Investigating Officer, PW-8, that he neither stated before police that he noticed Gunadhar Boro going to the residence of the accused Udoy Boro nor did he state about hearing any disturbance in the house of Udoy Boro. He, further, stated that he had not seen the accused person assaulting Gunadhar Boro. 11. He, further, stated that he had not seen the accused person assaulting Gunadhar Boro. 11. A Dispassionate the scrutiny of the oral testimony of these two vital witnesses shows, that though PW-2 deposed that he had seen Gunadhar Boro going to the residence of Udoy Boro on 17.01.2020, in the evening hours or he heard some disturbance in his house, no such statement was made by this witness before police and this omission on the part of the PW-2 in his statement recorded under Section 161 Cr.P.C. in our considered view, cannot be ignored as insignificant as observed by the learned trial court, in as much as, the omission relates to the material facts and cannot be attributed to insignificant inconsistencies due to laps of time or fading of member etc. In fact, this witness seems to have made considerable improvement in his evidence in court making his evidence contradictory to the previous statement, which has obviously shaken the credibility of his testimony. Therefore, we find it difficult to rely on the oral testimony of this witness for the first time in Court, that he had seen the deceased going to the residence of the appellant, Udoy Boro on the previous day. 12. PW-7, in her examination-in-chief stated that both the appellants assaulted the victim. She admitted that she did not state before the police about the involvement of Udoy Boro. She, however, confirmed that her statement regarding involvement of Mahal Boro @ Mohan Boro was true. We have also examined her pervious statement for our satisfaction and we find that in her statement before the police he did not project herself as an eye witness of the occurrence. It is also reflected in her evidence that the appellant, Mahal Boro @ Mohan Boro, whom she tried to implicate, is her step son and her relation with Mahal Boro @ Mohan Boro was strained. We also notice that though she stated to have taken the victim to hospital, her version that she took the victim to the hospital does not find support from any other evidence. She also admitted that though she had seen the assault, she never disclosed the fact to anybody. PW-4 and PW 5, who were the close relations of the deceased though, not eye witnesses to the occurrence, they arrived later on. She also admitted that though she had seen the assault, she never disclosed the fact to anybody. PW-4 and PW 5, who were the close relations of the deceased though, not eye witnesses to the occurrence, they arrived later on. According to them, no one reported them about the assault on the deceased by the appellants. They stated to have heard that some unknown person assaulted the victim. Though, this part of the evidence PW-4 and PW-5, cannot be taken into consideration being hearsay, but the evidence of these two witnesses, who are close relation of the deceased to the extent, that no one including PW-7, who claimed herself to be the witness of the occurrence, reported about the appellants assaulting the victims assumes significance. These circumstances also suggest that the PW-7 was not an eye witness to the occurrence. Therefore, in our considered view no credibility can be attached to the evidence of PW-7 too, who tried to project herself as an eye witness. If the oral testimony of these two witnesses is discarded, literally the prosecution is left with no evidence which would support its case. 13. Learned trial court however relied on the circumstances that the deceased was found in the courtyard of the appellant, Udoy Boro in injured conditions. Even if, it is assumed, for the sake of argument, that the deceased was found in the courtyard of Udoy Boro in injured condition, this circumstance alone would hardly be insufficient to lead to a conclusion that the appellants were the perpetrator of the offence. This apart, this circumstance has nothing to do with the appellant Mohan Boro. The law relating to circumstantial evidence is by now well settled by a catena of decision of the apex court for a remarkable trial raised on the circumstantial evidence prosecution needs to establish all the circumstances beyond all reasonable doubt and the circumstances so proved must form a complete chain of events leading to the one and only one conclusion that it was none but the accused- appellants were the perpetrator of the offence. In our considered view, even if it is assumed and accepted the circumstances that the deceased was found in the courtyard of the appellant, Udoy Boro in injured condition, this circumstance alone can by no stretch of imagination leads to the irresistible conclusion of guilt of the appellants. In our considered view, even if it is assumed and accepted the circumstances that the deceased was found in the courtyard of the appellant, Udoy Boro in injured condition, this circumstance alone can by no stretch of imagination leads to the irresistible conclusion of guilt of the appellants. What, therefore emerges is that the prosecution evidence is grossly inadequate to prove the change against the appellants beyond reasonable doubt or at least the appellants are entitled to benefit of doubt and as such the conviction and sentence of the appellants cannot be sustainable. Accordingly we set aside the conviction and sentence of the appellants. Resultantly both the appeals stand allowed. 14. The appellants be released forthwith, if not required in any other case. 15. These appeals stands disposed of.