Gauhati High Court
Sri Gopal Saha And 8 Ors vs The State Of Assam And Anr on 27 February, 2020
Author: M. R. Pathak
Bench: Manash Ranjan Pathak, Nelson Sailo
Page No.# 1/27
GAHC010011402015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 88/2015
1:SRI GOPAL SAHA and 8 ORS
S/O SRI RAMESH CH. SAHA, R/O BAHARI RESERVE, P.O. TARABARI, P.S.
TARABARI, DIST. BARPETA, ASSAM, PIN 781302
2: UTTAM SAHA
S/O SRI RAMESH CH. SAHA
R/O BAHARI RESERVE
P.O. TARABARI
P.S. TARABARI
DIST. BARPETA
ASSAM
PIN 781302
3: SANJIB GHOSE
S/O SRI BISWANATH GHOSE
R/O BAHARI RESERVE
P.O. TARABARI
P.S. TARABARI
DIST BARPETA
ASSAM
PIN 781302
4: PRASANJIT GHOSE
S/O SRI BISWANATH GHOSE
R/O BAHARI RESERVE
P.O. TARABARI
P.S. TARABARI
DIST. BARPETA
ASSAM
PIN 781302
5: DIPAK GHOSE @ BENGA GHOSE
S/O SRI BISWANATH GHOSE
R/O BAHARI RESERVE
Page No.# 2/27
P.O. TARABARI
P.S. TARABARI
DIST. BARPETA
ASSAM
PIN 781302
6: SANJAY BASAK
S/O LT. SRI MUNINDRA BASAK
R/O BAHARI RESERVE
P.O. TARABARI
P.S. TARABARI
DIST. BARPETA
ASSAM
PIN 781302
7: PARIMAL SAHA
S/O SRI PARESH SAHA
R/O BAHARI RESERVE
P.O. TARABARI
P.S.TARABARI
DIST. BARPETA
ASSAM
PIN 781302
8: BISWANATH GHOSE
S/O SRI JOGENDRA GHOSE
R/O BAHARI RESERVE
P.O.TARABARI
P.S. TARABARI
DIST. BARPETA
ASSAM
PIN 781302
9: SMTI JOSTNA GHOSE
W/O SRI BISWANATH GHOSE
R/O BAHARI RESERVE
P.O. TARABARI
P.S. TARABARI
DIST. BARPETA
ASSAM.
PIN 78130
VERSUS
1:THE STATE OF ASSAM and ANR
2:NITAI SAHA
S/O LATE GANESH SAHA
Page No.# 3/27
R/O BAHARI RESERVE
P.S. TARABARI
DIST. BARPETA
ASSAM
PIN 78130
Advocate for the Petitioner : MR.H AHMED
Advocate for the Respondent :
BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK HON'BLE MR. JUSTICE NELSON SAILO Date of Hearing : 04.12.2018 Date of Judgment : 27.02.2020 JUDGMENT AND ORDER (CAV) (M. R. Pathak, J) This appeal is against the judgment and order of conviction dated 18.12.2015, passed by learned Additional Sessions Judge (FTC), Barpeta in Sessions Case No. 203/2000, whereby the appellants have been convicted under Sections 148/149/302 of the IPC for committing murder of Badiya Nath Saha and sentenced to rigorous imprisonment for life with fine of Rs. 2,000/- each, in default to undergo Rigorous Imprisonment for 1 (one) year for committing the offence under Section 302 read with Section 149 IPC and also to undergo Rigorous Imprisonment for 1 (one) year for committing the offence under Section 148 read with Section 149 IPC, where the sentences to run concurrently.
2) Heard Mr. Nilyananda Dutta, learned Senior Counsel, assisted by Mr. Niranjan Narayan Bhuyan Choudhury, appearing for the accused appellants. Mr. Dutta, learned senior counsel presented a well crafted argument for the accused appellants, stating that the learned Trial Court by the impugned judgment arbitrarily and illegally convicted the accused appellants, where the defence had brought to the notice of the Trial Court sufficient contradiction Page No.# 4/27 pertaining to the evidence adduced by the prosecution. Placing the evidence before the Court Mr. Dutta submitted that the prosecution failed to prove the guilt of the accused appellants beyond all reasonable doubt and also failed to prove that at the time of the incident, the accused appellants formed an unlawful assembly, armed with weapons and prosecuted the common object of that assembly. Mr. Dutta further submitted that the prosecution failed to prove that it is the accused appellants, who used criminal force and committed violence towards committing the offence of rioting and caused grievous hurt on Badiya Nath Saha, resulting in his death. Adducing the evidence of the sole defence witness, the member of the Juvenile Justice Board, Barpeta, who recorded the evidence of the first four prosecution witnesses during the trial of the connected GR Case No. 1524/1998, namely Nitai Saha, both Gopal Basaks and Pintu Basak, i.e., the first four prosecution witnesses examined by the prosecution during the trial of the Case and placing their statements made before the said JJB - Exhibits A to D, which were proved by the said defence witness and by re-cross-examining P.W.1 of the case, Nitai Saha, Sr. counsel Mr. Dutta submitted that though the defence demolished the entire evidence of the prosecution brought against the appellants, but without considering those materials in proper perspective, the Trial Court by the impugned judgment dated 18.12.2015 convicted the accused appellants, which needs to be set aside and quashed and the accused appellants should be set at liberty.
3) In support of his arguments for the accused appellants, Mr. N. N. Dutta, learned Senior counsel placed the following judgments:
Omnibus allegation - (1991) Suppl. 2 SCC 437 [Sherey Vs. State of U.P.], (2010) 6 SCC 519 [Eknath Ganpat Aher Vs. State of Maharashtra], (2011) 2 SCC 676 [Durbal Vs. State of U.P.]; making omnibus allegation/no specific role no liability - (2014) 6 SCC 672 [Nagesar Vs. State of Chhattisgarh]; not exhibiting site plan - (2005) 13 SCC 624 [Pratap Singh Vs. State of M.P.]; not drawing sketch map - (2003) 2 SCC 401 [Lallu Manjhi Vs. State of Jharkhand] ; unlawful assembly under Section 149 IPC - (2013) 16 SCC 752 [Ranjit Singh Vs. State of Punjab,], AIR 1956 SC 181 [Baladin Vs. State of U.P.]; common object under Section 149 IPC
- (1981) 2 SCC 755 [Bhudeo Mandal Vs. State of Bihar] , (2018) 6 SCC 433 [Kameshwar Singh Vs. State of Bihar]; Second FIR not maintainable - (2001) 6 SCC 181 [T.T. Antony Vs. State of Kerala]; for not seizing weapon of offence - 2005 (4) GLT 86 [Kipa Sero Vs. State of Arunachal Pradesh], 2014 (1) GLT (TR) 535 [Haradhan Das @ Haradhan Bhandari Vs. State Page No.# 5/27 of Tripura]; GD Entry and common name - 2017 (2) GLT 1021 [Bikash Chowdhury & Ors. Vs. State of Assam & Anr.], 2017 (5) GLT 641 [Suruj Ali & Ors. Vs. State of Assam] ; for making differrent statements with regard to same incident by same witness on oath in two differrent Courts - AIR 1964 SC 1357 [Sharnappa Mutyappa Halke Vs. State of Maharashtra] ; examination of CD by Judge - 2010 (5) GLT 477 [State of Assam Vs. Dineswar Doley and Ors.]; defective and illegal investigation - (2013) 4 SCC 422 [Sunil Kundu Vs. State of Jharkhand]; material witness not examined - AIR 1954 SC 51 [Habeeb Mohd. Vs. State of Hyderabad], (2004) 11 SCC 253 [Harjinder Singh Vs. State of Punjab,] , (2005) 13 SCC 624 [Pratap Singh Vs. State of M.P]; tainted investigation - (1976) 4 SCC 590 [Baljit Singh Vs. State of U.P.], (1991) 1 SCC 286 [Kishore Chand Vs. State of H.P.], (2010) 1 SCC 108 [Arun Kumar Sharma Vs. State of Bihar] , (2015) 7 SCC 178 [Tomaso Bruno Vs. State of U.P.] and two sets of evidence - (2013) 2 SCC 541 [Mohd. Khalil Chisti Vs. State of Rajasthan] , (2014) 7 SCC 405 [Umakant Vs. State of Chhattisgarh].
4) On the other hand, Ms. Shamima Jahan, learned Additional Public Prosecutor, Assam, for the State submitted that the prosecution had proved the guilt of the accused person beyond all reasonable doubt and the learned Trial Court, after weighing the evidence adduced by the parties, by the impugned judgment dated 18.12.2015, rightly convicted the accused appellants, which does not call for any interference by the appellate Court. In support of her argument Ms. Jahan relied on the following judgments:
Acceptance of delayed FIR - (2015) 1 SCC 737 [Dilawar Singh Vs. State of Haryana]; when defective investigation not fatal - (2004) 3 SCC 654 [Dhanaj Singh Vs. State of Punjab], conduct of the accused material - (2005) 11 SCC 600, [State (NCT of Delhi) Vs. Navjot Sandhu], (1974) 4 SCC 611 [Bhagwandas Keshwani Vs. State of Rajasthan], applicability of common object/Sections 148/149 IPC - (2012) 3 SCC 221 [Roy Fernandes Vs. State of Goa] , (2013) 12 SCC 76 [State of Rajasthan Vs. Shiv Charan], (2013) 2 SCC 233 [Raju Vs. State of Rajasthan], (1996) 10 SCC 223 [Golla Pullanna Vs. State of A.P.]; material witness - (2001) 6 SCC 145 [Takhaji Hiraji Vs. Thakore Kubersing Chamansing]; appreciation of evidence, wounds and weapons, reliability of witness - (1996) 10 SCC 223 [Golla Pullanna Vs. State of A.P.]; (1975) 3 SCC 39 [Charan Singh Vs. State of Punjab].
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5) The case of the prosecution is that on 03.10.1998 around 10:00 a.m., the informant Nitai Saha (PW.1), son of late Ganesh Saha, resident of Bahari Reserves of Tarabari Police Station lodged a written ejahar (Exhibit-1) before the Officer-in-Charge of Tarabari Police Station, District-Barpeta, against the accused persons (1) Lakhyan Ghose, son of late Jogendra Ghose; (2) Gopal Saha, son of Ramesh Saha; (3) Uttam Saha, son of Ramesh Saha; (4) Sanjib Ghose, son of Biswanath Ghose; (5) Dipak Ghose, son of Biswanath Ghose; (6) Prasenjit Ghose, son of Biswanath Ghose; (7) Benga Ghose, son of Biswanath Ghose; (8) Gobinda Sarkar, son of Jiban Sarkar; (9) Sanjay Basak, son of Manindra Mohan Basak; (10) Parimal Saha, son of Paresh Saha; (11) Prakash Saha, son of Paresh Saha; (12) Subrata Basak, son of Nitai Basak; (13) Biswanath Ghose, son of late Jogendra Ghose; (14) Anil Ghose, son of late Jogendra Ghose and others, who are residents of Bahari Reserve under Tarabari Police Station, stating that on 01.10.1998 while a musical show was going on at Bahari Bazar Barowari Durgabari, in the morning around 02:00 a.m., the accused persons namely, Sri Uttam Saha and Sanjib Ghose called his younger brother Badiya Nath Saha and took him to the frontage of the house of accused Lakhyan Ghose and all the FIR named accused persons, forming a group, assaulted him with lathi (stick) fastened with blade, cricket bat and iron rod and wounded him seriously. As the condition of the said wounded person became critical, in the morning of the same day (01.10.1998) around 08:00 a.m., he was admitted at Down Town Hospital at Guwahati, wherein the injured Badiya Nath Saha died on 03.10.1998 around 04:20 in the morning. In the ejahar it was also stated that the deceased was the Secretary of Bahari Bazar Barowari Durgabari Committee and that the delay was caused in lodging the ejahar since they were busy for treatment of the injured person. By the said ejahar, the informant requested the authority concerned to take the necessary steps for the said incident.
6) On receipt of said FIR, Tarabari Police Station Case No. 124/1998 under Sections 147/148/149/326/302 IPC corresponding to G.R. Case No. 1524/1998 was registered. The case was investigated by one Reba Kanta Das, SI of Police, who was the Officer-in-Charge of said Tarabari Police Station at the relevant time, who visited the place of occurrence, drawn its sketch map (not exhibited), recorded the statements of the persons acquainted with the alleged crime under Section 161 CrPC and arrested some of the FIR named accused persons.
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7) Further, on 03.10.1998 around 01:30 p.m. one Babul Chandra Saha, son of late Ganesh Chandra Saha of Bahari Hat under Tarabari Police Station of Barpeta District, filed a written application before the Officer-in-Charge of Dispur Police Station, informing that on 03.10.1998 one Badiya Nath Saha had un-natural death at Down Town Hospital, which was recorded as GD Entry No. 116 dated 03.10.2019 (Exhibit-4) in Dispur Police Station and also registered as Dispur Police Station UD Case No. 48/1998. On being authorised by the OC of Dispur Police Station on 03.10.1998 itself, Mr. Upen Sarmah, ASI of Police and Constable No. 4059, Mr. Rafiquddin of said Police Station conducted inquest of the deceased Badiya Nath Saha at Down Hospital, Guwahati, who was identified by the informant Babul Chandra Saha and prepared the Inquest Report dated 03.10.1998 of the deceased (Exhibit-3) in said Dispur PS UD Case No. 48/1998, in presence of the witnesses, namely, (1) Bijoy Ghose, son of Nabadeep Ghose; (2) Barada Ghose, son of late Tarapada Ghose; (3) Sashi Barah, son of late Bimalendu Barah and (4) Babul Saha, son of late Ganesh Saha and, thereafter, forwarded the dead body of said deceased to Gauhati Medical College Hospital, Guwahati for its postmortem examination. On 03.10.1998 itself, post-mortem examination of said deceased Badiya Nath Saha was conducted and his Postmortem Report was made (Exhibit-2).
8) It is to be mentioned herein that the informant of aforesaid Dispur Police Station GD Entry No. 116 dated 03.10.2019 (Exhibit-4) is the brother of the deceased Badiya Nath Saha and the informant of Tarabari Police Station Case No. 124/1998 noted above. Further, after the death of said Badiya Nath Saha on 03.10.1998, the FIR named accused No. 1, Lakhyan Ghose, son of late Jogendra Ghose of Tarabari PS Case No. 124/1998, who evaded from police and his arrest in the case, committed suicide on 05.10.1998 by hanging in the toilet of the residence of his father-in-law, Anil Chandra Ghose at Village-Atagaon (Kharama Bazar), P.O.- Garutapa, District-Barpeta, under Kayakuchi Out Post of Barpeta Police Station, which was recorded as Kayakuchi Out Post G.D.Entry No. 42 dated 05.10.1998 and registered as Barpeta Police Station U.D. Case No. 64/1998.
9) On completion of the investigation of the case, after receiving the records of Supplementary Case Diary of Dispur Police Station UD Case No. 48/1998, finding prima facie materials, the concerned Investigating Officer on 29.04.1999 filed the Charge Sheet in said Page No.# 8/27 Tarabari PS Case No. 124/1998 vide No. 27/1999 under Sections 147/148/149/326/302 IPC, against 13 (thirteen) accused persons, namely (1) Gopal Saha, son of Ramesh Saha; (2) Uttam Saha, son of Ramesh Saha; (3) Sanjib Ghose, son of Biswanath Ghose; (4) Prasenjit Ghose, son of Biswanath Ghose; (5) Benga Ghose @ Dipak Ghose, son of Biswanath Ghose; (6) Sanjay Basak, son of Manindra Mohan Basak; (7) Parimal Saha, son of Paresh Saha; (8) Prakash Saha, son of Paresh Saha; (9) Subrata Basak, son of Nitai Basak; (10) Biswanath Ghose, son of late Jogendra Ghose; (11) Nitai Basak, son of late Nidu Charan Basak; (12) Smti. Jyosna Ghose, wife of Biswanath Ghose (Exhibit-6). As the accused No. 13, Gobinda Sarkar, son of Jiban Sarkar evaded arrest during the investigation of said Tarabari PS Case No. 124/1998, his name was sent up for trial in the said case, praying to declare him as an absconder. Further, in the said Charge Sheet, it was clarified that the FIR named accused person Nos. 5 and 7 namely, Dipak Ghose and Benga Ghose are one and same person. In the said charge sheet, it was also stated that since no materials were found against the FIR named accused person No. 14, namely, Anil Ghose, son of late Jogendra Ghose, during the investigation of the case, his name was not included in it and submitted before the authority concerned to relieve him from the said case. The charge sheet in said Tarabari PS Case No. 124/1998 was filed along with the orders of pre-arrest bail of the charge sheeted accused persons and the Post-mortem Report of the deceased Badiya Nath Saha.
10) On receipt of the said charge sheet in Tarabari PS Case No. 124/1998, the learned Chief Judicial Magistrate, Barpeta by his order dated 11.08.1999, transferred the said G.R. Case No. 1524/1998 (arising out of Tarabari PS Case No. 124/1998) to the Court of Sub Divisional Judicial Magistrate (Sadar), Barpeta for its disposal. Finding that the charge under Section 302 IPC, being exclusively triable by the Court of Sessions, learned S.D.J.M.(S), Barpeta, by order dated 21.11.2000, committed the said G.R. Case No. 1524/1998 to the Court of learned Sessions Judge, Barpeta, wherein the same was registered and numbered as Session Case No. 203/2000.
11) Learned Sessions Judge, Barpeta by his order dated 27.07.2001 passed in said Session Case No. 203/2000 framed charges under Sections 147/148/302/ 149 IPC against all the 13 (thirteen) accused persons named in the Charge Sheet of said Tarabari PS Case No. Page No.# 9/27 124/1998, including the present appellant Nos. 1 to 9 and 4 (four) others, namely Prakash Saha, Subrata Basak, Nitai Basak and Govinda Sarkar, which were read over and explained to them, to which the accused persons pleaded not guilty and claimed to be tried. Accordingly, the Trial of the case began.
12) While the trial of the said Session Case No. 203/2000 was in progress, accused Prakash Saha died on 04.10.2003. Later another accused, Nitai Basak died on 28.12.2011 during the trial of said case. As such, learned Sessions Judge, Barpeta by his orders dated 19.07.2006 and 16.02.2012 passed in Session Case No. 203/2000, abated the said case against those two accused persons.
13) Further, during the trial of said Sessions Case No. 203/2000, learned Sessions Judge, Barpeta by his order dated 26.05.2008 passed in Criminal Misc.(J) Case No. 06/2006, declared the accused Subrata Basak as juvenile in conflict with law, directing him to appear before the learned Sub Divisional Judicial Magistrate (Sadar), Barpeta, within the stipulated date and forwarded the necessary records of the case to the said Magistrate for disposal of the case of said juvenile. Again, during the trial of the Case, learned Sessions Judge, Barpeta by another order dated 11.11.2009 passed in Criminal Misc.(J) Case No. 06/2008, declared the accused Gobinda Sarkar to be a juvenile offender and accordingly, split up the said Sessions Case against the said accused, directing him to appear before the Juvenile Justice Board, Barpeta on the date specified in the said order.
By another order dated 15.06.2013, learned Sessions Judge, Barpeta, in the interest of justice, transferred the said Sessions Case No. 203/2000 to the Court of learned Additional Sessions Judge (FTC), Barpeta for its disposal.
14) In order to bring home the charges against the accused persons of the case, the appellants herein; the prosecution examined 8 (eight) witnesses before the Trial Court and exhibited 6 (six) documents, including the FIR (Exhibit-1), Post Mortem Report of the deceased Badiya Nath Saha (Exhibit-2), Inquest Report of the said deceased (Exhibit-3), record pertaining to GD Entry No. 116 dated 03.10.2019 of Dispur Police Station (Exhibit-4), letter of Senior Superintendent of Police, Guwahati City regarding forwarding of the record of Page No.# 10/27 Dispur PS UD Case No. 48/1998 (Exhibit-5) and the Charge Sheet of the case (Exhibit-6). On conclusion of recording of evidence of the prosecution witnesses, the Trial Judge on 16.03.2012 recorded the statement of the accused persons under Section 313 Cr.PC, where the accused persons denied all the acquisitions made against them by the prosecution and stated that they are innocent.
The defence cross examined the prosecution witnesses, also examined 1 (one) witness on its behalf, who was cross examined by the prosecution. The defence also exhibited 5 (five) documents, including the Report of the concerned Juvenile Justice Board and statements of witnesses made before the concerned JJB.
Further, 1 (one) Court witness was examined, who was cross examined by the defence. On winding up of the trial, upon appreciation of the evidence adduced by the prosecution, defence and the Court witness, the learned Additional Sessions Judge (FTC), Barpeta on 18.02.2015 recorded the impugned judgment of conviction, noted above, giving rise to this appeal.
15) In order to appreciate the arguments, advanced by the learned counsels appearing for both the parties and to examine the correctness of the impugned Judgment and the Order of conviction, it will be appropriate to briefly scrutinize the evidence on record.
16) The concerned autopsy doctor PW.5, Dr. Bhusan Ch. Roymedhi, who performed the post-mortem examination of the deceased Baidya Nath Saha, during the trial deposed that on post-mortem examination of the said deceased, the following were found:-
(1) One abrasion of 5 cms X 3.5 cms on mid-forehead.
(2) Upper eye lid was bluish in colour (black eye).
(3) One lacerated wound of 1 cm X 0.3 cm X muscle deep on right upper eye lid. (4) One patterned bruise on the right side of back of chest wall on lower part, 9 cms X 2 cms transversely placed, 10 cms below the inferior angle of right scapula bone.
(5) Another patterned bruise on the right side of back of abdominal wall on right lumber region of 5 cms X 2 cms, transversely placed and that both the bruises were bluish in colour and on its dissection, extra vasalion of blood was found underneath those bruises.
Scalp:- Contusion and hemorrhaged was present in frontal and both parietal regions. Skull:- One obliquely placed fissured fracture was present on frontal bone underneath injury No.(1), which extends upto right supra orbital ridge of the Skull and blood clots were found firmly adherent in that fracture site and the said fracture was further extended up to anterior cranial fosse of the base of the Page No.# 11/27 skull.
Membranes:- Congested Sub-dural hemorrhages were present in both cerebral hemispheres. Brain:- Contusions at places on frontal and both parietal lobes and cerebellum and that the brain was congested as a whole.
Abdominal organs found healthy.
Said autopsy doctor PW.5 opined that the cause of death of the deceased was coma as a result of the injuries sustained on his head and that the injuries described on the head and on the other parts of the body were ante-mortem, caused by blunt impacts that were homicidal in nature. He further opined that the approximate time passed since the death of said deceased was 8 to 12 hours.
During his cross-examination by the defence, PW.5 stated that the Injury Nos. 1 to 5 were found externally on the dead body and that all the injuries cannot be caused by fall, more particularly the injuries on fore-head could not have been caused by fall. He also stated that there is an internal layer from fore-head up to the margin of eye lid for which the blood is gravitated from the injury on forehead to the eyelid and he denied the suggestion that the said post mortem report was not of the deceased Baidya Nath Saha.
17) It is seen that by examining PW.5, the Autopsy Doctor, the prosecution proved the injuries found on the person of the deceased and also the cause of his death as homicidal. We are, therefore, required to see as to whether the prosecution could bring home the charges under Sections 147/148/302/149 of the IPC against the accused appellants or not.
18) PW.1, Nitai Saha, informant of the case, before the Trial Court in his evidence-in-chief deposed that the incident occurred at night in the year 1998 during Durga Puja time in front of the house of accused Lakhyan Ghose, which is about 35/40 yards from his house and that at the time of incident, he was at his residence. He deposed that on hearing hue and cry, when he came out of his residence, in his gateway, Gopal Basak informed him that his brother Baidya Nath Saha was being assaulted by the accused persons in front of the house of the accused Lakhyan Ghose and he rushed to the place of occurrence and their, he saw his said brother lying in the ground with heavy injuries in his person. But PW.1 deposed that he did not see any of the accused persons at the place of occurrence.
He also deposed that he along with Kajal Saha, Gopal Basak and others brought his Page No.# 12/27 said injured brother to the front of the Mandir (Temple) and poured water on his head and noticed heavy injuries on his head and that Gopal Basak in the meanwhile, brought Dr. Gopal Talukdar of Bahari to the Mandir who gave first aid to his injured brother and, thereafter, his said brother was taken to their residence and after some time, when he regained his senses, on being asked, the victim told them that the accused Gopal Saha and Lakhyan Ghose and others assaulted him by iron rod and cricket bat causing severe injuries in his person. PW.1 deposed that as the condition of the victim deteriorated, he was shifted to Down Town Hospital at Guwahati for better treatment where he succumbed to his injuries on the 3 rd day of the incident. He further deposed that it is Kajal Saha and Gopal Basak who informed them that the accused persons committed murder of his brother Baidya Nath by iron rod and cricket bat and that post mortem of his brother was conducted at Guwahati and police recorded his statement. He deposed that he lodged the FIR (Exhibit-1) of the case, indentified his signature in it and stated that as he was busy with the treatment of his deceased brother, the FIR of the case was lodged on 03.10.1998.
During his cross examination by the defence, PW.1 stated that FIR of the case was written at his instance by one Mamtaz Ali in his shop at Bahari, wherein he did not mention the source of information nor mentioned the witnesses to the incident. But reiterated that his brother Baidya Nath prior to his death reported him that it is Gopal Saha and Lakhyan Ghose who assaulted him by iron rod and cricket bat and also stated that in the FIR, the names of the other accused persons were given as reported to him by Kajal and Gopal, who reported to him about the incident, clarifying that it is not the accused Gopal Saha but a differrent person Gopal Basak. In his cross examination, PW.1 also stated that in the FIR, he did not specifically mention accused Gopal and Lakhyan and that he did not accompany his injured brother to Down town Hospital. He stated that they are 5 brothers including the deceased Baidya Nath.
PW.1 during his cross examination stated that Bahari Police Station is about 1 km away from his house and that he did not lodge the FIR on the date of the incident and explained the reason for the same in the FIR mentioning that the incident took place in the intervening night of 01.10.1998 and 02.10.1998 around 02:00 a.m. and there was moonlight on that night. However, he denied the suggestion of the defence that the reason for the delay in filing the FIR is false.
Page No.# 13/27 PW.1 in his cross examination further stated that there are about 20/25 residences near the place of occurrence and he did not see any of the neighbours coming out of their houses at the time of occurrence and that his brothers followed him to the place of occurrence where he saw Kajal, Gopal and others pouring water on the head of his brother at the place of occurrence and it is Gopal Basak and Kajal reported him that the accused Lakhyan Ghose, Biswanath Ghose, Gopal Saha, Biswajit Ghose, Benga Ghose, Uttam Saha, Gobinda Sarkar and others caused hurt in person of his brother Baidya Nath by iron rod and cricket bat and that police recorded his statement only after expiry of his said brother. He denied the suggestion that he did not state before the I/O that deceased Baidya Nath prior to his death did not inform him that he was struck by Lakhyan and Gopal and others by iron rod and cricket bat.
The defence further re-cross examined PW.1 on 04.11.2013, wherein he stated that along with the accused persons in the dock, there was another accused by name Gobinda Saha who filed a case claiming to be a juvenile and in that case he adduced evidence. He stated that Exhibit-A is his evidence in respect of said GR Case No.1524/1998, proved his signature in it as Exhibit-A(1) stating that in that case Gopal Basak adduced evidence. PW.1 also stated that his brother Babul Saha lodged an FIR before Dispur Police Station in connection with the death of his brother Baidya Nath Saha and that said Babul Saha is still alive. PW.1 in his re-cross examination stated that Baidya Nath Saha died in an accident.
19) PW.2, Gopal Basak, son of late Phatik Basak, before the Trial Court in his evidence-in- chief deposed that the incident took place during Durga Puja of 1998 in front of the house of the accused Lakhyan Ghose near the Durga Temple around 02:00 a.m. and at that time, he was busy attending the cultural show that was going on in the Durga Mandir premises. He deposed that at the relevant time he was the President of the Durga Bari Puja Samitee and the deceased Baidya Nath Saha was the Secretary of the said Samitee. He went on deposing that on the night of the incident, a cultural function was going on in the premises of Durgabari and in the midst of that function, accused Sanjib Ghose and Uttam took Baidya Nath Saha away from the said premise and since said Baidya Nath did not return, he enquired about him with another Gopal Basak and came out of the premise of the Durga Mandir in search of Baidya Nath and in front of the house of the accused Lakhyan Ghose, they saw that Page No.# 14/27 the accused persons, standing in the dock, encircling Baidya Nath, were assaulting him with lathi and cricket bat and that he also saw accused Gobinda Sarkar with the accused persons. He deposed that when they raised alarm, the accused fled away from the place of occurrence and he saw that Baidya Nath was lying at the place of occurrence in a pool of blood sustaining injuries in his person, who was in an unconscious state and therefore, he lifted said Baidya Nath to Durga Mandir premise, sent Gopal Basak to bring a doctor and when Dr. Gopal Talukdar arrived, he gave first aid treatment to said Baidya Nath. PW.2 also deposed that it is on the advice of said Doctor Gopal Talukdar, injured Baidya Nath was sent to Guwahati for better treatment and later he came to know that Baidya Nath succumbed to his injuries and police investigated the case and recorded his statement.
During his cross examination by the defence, PW.2 stated that Biswa Nath Ghose is the elder brother of accused Lakhyan Ghose who resides near the place of occurrence and that the house of Sushil Basak and Nagen Malakar are also situated near the place of occurrence. PW.2 stated that he saw accused Sanjib Ghose and Uttam Saha taking out Baidya Nath with them from the function, but he did not raise any objection while they took him away from the said premise and also did not report to anyone regarding the same. In his said cross examination, PW.2 stated that some of the accused persons were armed with lathi and the remaining were seen armed with cricket bat and that the accused Biswa Nath Ghose, Lakhyan Ghose, Sanjib Ghose, Uttam Saha and Parimal Saha were armed with lathi. He also stated that he saw the incident from a distance about 10-15 hand and when they raised alarm, the accused persons fled away and after the departure of the accused persons, around 100 villagers flocked at the place of occurrence. PW.2 stated that he reported the matter to Manik Saha, Nitai Saha and others. He further stated that he could remember that he saw two marks of injuries on the person of said Baidya Nath particularly at his head and nose and he denied the suggestion that he adduced false evidence.
20) PW.3, Gopal Basak, son of Sri Gobinda Basak, in his evidence-in-chief deposed before the Trial Court that the incident took place on one night of 1998 during Durga Puja and at that time he was busy attending a function held within the campus of the Durga Mandir and that the place of occurrence is in front of the house of the accused Lakhyan Ghose and that the Mandir is about hundred meters away from the place of occurrence. He deposed that at Page No.# 15/27 the relevant time he along with PW.2, Gopal Basak and Baidya Nath was busy managing the function and then accused Uttam Saha and Sanjib Ghose came near Baidya Nath and took him from the Mandir premise and as Baidya Nath did not return, he along with PW.2 and Kajol came out of the Durga Mandir premise in search of said Baidya Nath and saw that in front of the house of accused Lakhyan Ghose, the accused persons were assaulting Baidya Nath by iron rod and cricket bat. He also deposed that he saw Baidya Nath lying in the place of occurrence with heavy injuries in his person sustaining injuries on his head and nose. He deposed that the moment when they arrived at the place of occurrence, they saw the accused were assaulting Baidya Nath and as they raised alarm, the accused persons fled away from the scene and then said Baidya Nath was brought to the Mandir premises and he went to the house of Dr. Gopal Talukdar, brought him so as to give treatment to Baidya Nath. He further deposed that on the advice of said Dr. Talukdar, Baidya Nath was shifted to Guwahati for better treatment and later, he came to know that Baidya Nath succumbed to his injuries and that police recorded his statement.
During his cross examination by the defence, PW.3 stated he does not know the reason as to why accused Uttam and Sanjib took Baidya Nath outside the Mandir premise and that he did not ask anything to the accused persons about it. He stated that Pintu followed them and denied the suggestion that he stated before the I/O of the case that he along with PW.2, Kajal and Pintu proceeded to place of occurrence and further stated that for about two minutes he saw the accused persons assaulting Baidya Nath and that people arrived at the place of occurrence when they raised the alarm. He denied the suggestion that he adduced false evidence and that he did not see the occurrence.
21) PW.4, Pintu Basak, before the Trial Court in his evidence-in-chief deposed that the occurrence took place about eight years back in front of the house of the accused Lakhyan Ghose in between 1 and 2 a.m. (dead of night) and at that time he was at Durga Puja held at Durgabari, which is about hundred meters away from the place of occurrence. He deposed that while he was enjoying the function going on at Durgabari, his attention was drawn by a discussion that Baidya Nath was assaulted and then he went to the place of occurrence. He also deposed that in the meantime some more persons went ahead of him and after him to the place of occurrence and arriving at the place of occurrence, he saw that about fifteen to Page No.# 16/27 twenty persons were there and also saw Baidya Saha lying with injuries and then he along with both the Gopals and Kajal carried him to Durgabari, where there were some more public and that somebody called Dr. Gopal Talukdar, who examined Baidya Nath, referred the said injured to Guwahati and in the morning said injured was sent to Guwahati. He also deposed that he saw head injury and saw bleeding from the nose and mouth of Baidya Nath, but he did not remember whether the injured could speak or not and after two days of the incident, he heard that the injured expired in the Hospital. He deposed that he did not see the assault.
During his cross examination by the defence, PW.4 stated that it was Astami day and moonlight existed not beyond 10 p.m. and though it was dark, there was electricity and when he arrived at the place of occurrence, both Gopals and Kajal caught the injured. He also stated that there is a path to the south of Durgabari and there are two by lanes to the place of occurrence and that by the side of those golly (by lanes) there are about hundreds of houses and that on the third golly (by lanes) there were about 60 to 70 houses. PW.4 also stated that the houses of Malakar, Kashem etc. are near to the house of Lakhyan Ghose and that there are no streets (should have been street lights as seen from the original) by the side of those roads. He denied the suggestion that there were no electricity.
22) PW.6, Bijoy Ghose, an witness to the inquest of the deceased Baidya Nath, during his evidence-in-chief deposed before the Trial Court that about 10 to 12 years back, one day when the informant (informant of Dispur PS GD Entry No. 116 Babul Chandra Saha) contacted him over phone stating that his brother Baidya Nath had expired at Down Town Hospital, Guwahati and thereafter he went to that hospital wherein he found the dead body of said Baidya Nath. He also deposed that at the time of his arrival, police also arrived there and conducted the inquest on the dead body of said deceased in his presence, during which he saw bleeding from nose and ears of the deceased. He deposed that Exhibit-3 is the Inquest Report of the deceased and identified his signature in it and also deposed that the I/O of the case recorded his statement.
During his cross examination by the defence, PW.6 stated that he doesn't know from where and from which police station police came to Down Town Hospital and that his Page No.# 17/27 statement was recorded. He further stated that the informant Babul Saha did not state before him as to how the death was caused.
23) PW.7, Upen Sarma, ASI of Assam Police, during his evidence-in-chief before the Trial Court deposed that on 03.10.1998 one Babul Chandra Saha son of late Ganesh Saha of Village Baharihaat filed an ejahar before the Officer-in-Charge of Dispur Police Station stating that his brother Baidya Nath Saha died in Town Down Hospital during treatment which was accordingly registered as U.D. Case No. 48/1998. He deposed that on being entrusted with the said case by the O.C. of Dispur P.S. he went to Down Town Hospital along with the said informant, conducted the inquest on the dead body of the deceased in presence of the witnesses, forwarded the said dead body to the GMC Hospital, Guwahati for its post mortem examination and that during the said inquest, he found blood was oozing out from mouth, nose and ear of the deceased, one black mark on his forehead, one blackish mark on the chest of the deceased. He also deposed that he examined the witnesses Barada Ghose, Siba Basak, Bijoy Ghose and Babul Saha as witnesses to the inquest report, Exhibit-3 and identified his signature in it. He further deposed that Exhibit-4 is the General Diary of the Dispur Police Station w.e.f., 01.10.1998 wherein the Exhibit-4(1) is the relevant GD Entry No. 116 dated 03.10.1998. He further deposed that after collecting the Post Mortem report of the deceased he transferred the Supplementary Case Diary (SCD) to the Tarabari Police Station along with other documents for their needful and thereafter the case was investigated by Tarabari Police Station.
During his cross examination by the defence, PW.7 stated that in the Exhibit-4(1) (the relevant GD Entry No. 116 dated 03.10.1998 of Dispur Police Station) it was mentioned that the deceased died due to unnatural death and that the informant Babul Chandra Saha is the elder brother of said deceased and that after forwarding the said SCD of the Dispur U.D. Case No. 48/1998 to Tarabari Police Station, he cannot say about the fate of that case.
24) PW.8, Sarbesh Ali, SI of Assam Police, who was an ASI at Tarabari Police Station at the relevant time when the FIR pertaining to said Tarabari P.S. Case was lodged on 03.10.1998 and in his evidence-in-chief he deposed before the Trial Court that the Sub- Inspector Raba Kanta Das was the Officer-in-Charge of Tarabari Police Station at the pertinent Page No.# 18/27 time, who investigated the said Tarabari P.S. Case No. 124/1998 and later expired in an encounter while he was posted at Labdanguri Police Post. Said PW.8 deposed that on completion of the investigation of the case, said Raba Kanta Das submitted the charge sheet in said Tarabari P.S. Case No. 124/1998, Exhibit-6, against the accused persons and that he is acquainted with the handwriting of said SI, Raba Kanta Das and identified the signature of said Das in the charge sheet, Exhibit-6.
During his cross examination by the defence, PW.8 stated that the place of occurrence is about one kilometer from Tarabari Police Station and the incident occurred on 01.10.1998 at about 02:00 a.m. and that the incident was reported on 03.10.1998 around 10:00 a.m. He stated that in the case diary there was no mention regarding the Dispur Police Station U.D. Case, relating to the same incident.
25) CW.1, Aditya Kumar Das, Officer-in-Charge of Tarabari Police Station as a Court Witness in his evidence-in-chief before the Trial Court deposed that on receipt of the notice and the order of the Court, he appeared along with the documents that he collected from the Senior Superintendent of Police, Guwahati City, Exhibit-5, a letter dated 04.08.2008 issued by the Senior Superintendent of Police, Guwahati City whereby the said SP forwarded a report being R.No.731(e) dated 22.08.2008 informing the Court that the Supplementary Case Diary (SCD) of the U.D. Case No. 48/1998 was handed over to a constable Gopal Basak of Tarabari Police Station on 16.02.1999 itself. He also deposed that the said S.C.D. was produced by the then In-Charge of Dispur Police Station and Sri. Upen Sarma, submitted the said S.C.D. before the Court which was found available with the case diary.
During his cross examination by the defence, said CW.1 stated that the U.D. Case No. 48/1998 was lodged in writing by one Babul Saha son of late Ganesh Chandra Saha of Boharihaat before the Dispur Police Station vide GD Entry No.116 dated 03.10.1998, but the F.I.R. along with the U.D. Case record in connection with the said U.D. Case was not found available on record.
26) DW.1, Kandarpa Kumar Das, a member of the Juvenile Justice Board, Barpeta, in his evidence-in-chief as a defence witness deposed before the Trial Court that he is a member of the JJB, Barpeta and that GR Case No. 1524/1998 was pending before the JJB, Barpeta Page No.# 19/27 where Exhibit-A is the said record, in which he recorded the evidence of the witnesses, namely, PW.1, Nitai Saha; PW.2 Gopal Basak, son of Phatik Basak; PW.3, Gopal Basak, son of Gobinda Basak and PW.4, Pintu Basak, son of Montu Basak. He also deposed that Exhibit-A, Exhibit-B, Exhibit-C and Exhibit-D are the statements of those witnesses respectively and identified his signatures Exhibit-A(2), Exhibit-B(2), Exhibit-C(2) and Exhibit-D(2) respectively on the statements of those witnesses.
During his cross examination by the prosecution, said DW.1 stated that as a member of the JJB he had recorded the evidence of those witnesses and denied the suggestion of the prosecution that he had recorded the testimony of the witnesses without any authority.
27) From the evidence of PW.1, Nitai Saha, informant of the case and brother of the deceased, it is seen that in his gateway Gopal Basak (PW.2) informed him that his brother Baidya Nath was being assaulted by the accused persons in front of the house of the accused Lakhyan Ghose and on reaching the place of occurrence said PW.1 neither saw the incident nor saw the accused persons in that place, except his brother Baidya Nath lying at the place of occurrence in injured condition. PW.1 is only a hearsay witness to the incident and according to him he revealed the name of the accused persons as told to them by Kajal Saha and Gopal Basak.
28) From the evidence of PW.4, Pintu Basak, it is seen that while he was enjoying the function celebrated at Durgabari, he heard a discussion that Baidya Nath was assaulted and then he went to the place of occurrence and that in the meantime some more persons went ahead of him to that place and some after him and on arriving at the place of occurrence, he saw about 15 to 20 persons therein and also saw Baidya Nath lying with injuries and that he along with both Gopals and Kajal carried him to Durgabari and deposed that he did not see the assault. It can be seen that similar to PW.1; said PW.4 is also a hearsay witness to the incident.
29) It is seen that PW.1 in his evidence stated that in his gateway Gopal Basak informed him that his brother Baidya Nath was being assaulted by the accused persons in front of the house of the accused Lakhyan Ghose and that said PW.1 along with Kajal, Gopal Basak and others brought his brother to the premise of the Mandir. But from the evidence of the both Page No.# 20/27 the Gopal Basak, PWs.2 and 3 and Pintu Basak, PW.4 it can be seen that they did not name the informant PW.1 in bringing the injured victim Baidya Nath to the Mandir premise. Again PW.2 in his evidence stated that he along with other Gopal Basak, PW.3 went in search of said Baidya Nath, but said PW.2 in his evidence deposed that he lifted the injured Baidya Nath to the Mandir premise; whereas the other Gopal Basak, PW.3 in his evidence did not state as to who brought the said injured Baidya Nath to the Mandir premise. But, in his evidence, the PW.4, Pintu Basak, stated that he along with Gopals, PWs. 2 & 3 and Kajal carried the injured Baidya Nath to the Mandir premise.
30) PW.1 in his evidence only stated that in his gateway Gopal Basak informed him about the assault on his brother Baidya Nath by the accused persons in the place of occurrence, but he did not disclose who amongst Gopal Basaks, PWs. 2 and 3 told him about the incident. PWs. 2 and 3, both Gopal Basaks in their evidence did not state that they informed the incident to the PW.1 at night in his gateway or at any other time. PW.2, Gopal Basak during his cross-examination by the defence only stated that he reported the matter to Manik Saha (not examined by the prosecution), Nitai Saha (PW.1) and others, but he did not state as to when he reported the said matter to them and to PW.1.
31) PW.2, Gopal Basak in his evidence stated that he and the other Gopal Basak, PW.3 came out of the Durga Mandir premises in search of Baidya Nath and in front of the house of the accused Lakhyan Ghose, they saw that the accused persons, encircling Baidya Nath, were assaulting him with lathi and cricket bat and that when they raised alarm, the accused persons fled away from the place of occurrence and he saw that Baidya Nath was lying at the place of occurrence in a pool of blood sustaining injuries in his person in an unconscious state. PW.3, Gopal Basak in his evidence stated that he along with other Gopal Basak, PW.2 and Kajal came out of the Durga Mandir premises in search of Baidya Nath and saw that in front of the house of the accused Lakhyan Ghose, the accused persons were assaulting said Baidya Nath with iron rod and cricket bat and that when they raised alarm, the accused persons fled away and he saw Baidya Nath lying at the place of occurrence with heavy injuries in his person, sustaining injuries in his head and nose. In his cross examination, said PW.3 stated that Pintu (PW.4) followed them. PW.4, Pintu Basak in his evidence deposed that Page No.# 21/27 while he was enjoying the function at Durgabari, on hearing that Baidya Nath was assaulted, he went to the place of occurrence and that in the meantime some persons went ahead of him to the place of occurrence and some proceeded to that place after him and arriving at the place of occurrence he saw about 15/20 persons in that place and also saw Baidya Nath lying with injuries. It is seen that PW.2, Gopal Basak in his evidence did not state about the presence of Kajal as well as that of Pintu, PW.4 at the place of occurrence. He stated that the accused persons used lathi and cricket bat in assaulting Baidya Nath and on the other hand PW.3, Gopal Basak stated that the accused persons used iron rod and cricket bat in assaulting Baidya Nath. PW.4 Pintu Basak in his evidence did not name any accused person nor stated of hearing the names of the accused persons. PW.3 in his evidence though stated about Pintu Basak, PW.4; but said PW.3 did not state that he mentioned the names of the accused persons either before said Pintu Basak, PW.4 or before the informant, Nitai Saha, PW.1. Both Gopal Basak, PWs. 2 and 3 in their evidence did not state that on raising alarms by them, some other people gathered at the place of occurrence. PW.2 in his cross examination stated that after departure of the accused persons 100 villagers flocked at the place of occurrence, whereas PW.3 in his cross examination stated that on raising alarm by them people arrived at the place of occurrence. PW.4 Pintu Basak in his evidence did not state that PWs. 2 and 3 and Kajal reached the place of occurrence prior to him. PW.1 Nitai Saha in his cross evidence stated that Kajal, Gopal and others poured water on the head of his injured brother Baidya Nath at the place of occurrence.
32) PW.1, Nitai Saha in his evidence stated that his brother injured Baidya Nath Saha was taken to their residence from the Mandir premise and when he regained his sense, on being asked, he told them that accused Gopal Saha, Lakhyan Ghose and others assaulted him. In his cross examination PW.1 stated that including the deceased Baidya Nath Saha, they were five brothers and that his other brothers followed him to the place of occurrence. But, said PW.1 did not state, who else was present with him in their residence, when his injured brother Baidya Nath made such statement against accused Gopal Saha, Lakhyan Ghose and others. From the evidence of PW.6 Bijoy Ghose it is seen that Babul Saha, the informant of Dispur Police Station UD Case No. 48/1998, brother of the deceased Baidya Nath Saha as well as PW.1, Nitai Saha, did not state before him about the cause of death of said Baidya Nath Page No.# 22/27 Saha nor mentioned the name of any of the accused person. The prosecution did not examine any other brothers of the informant PW.1, Nitai Saha or any member of his family so as to corroborate said evidence of PW.1.
33) It is already seen that on 27.07.2001 learned Sessions Judge in Sessions Case No. 203/2000 framed charges under Sections 147/148/302/149 IPC against 13 (thirteen) accused including the accused Gobinda Sarkar, son of Jiban Sarkar. It is also noted that during the trial of the case, learned Sessions Judge, Barpeta by an order dated 11.11.2009 passed in Criminal Misc.(J) Case No. 06/2008 declared said Gobinda Sarkar to be a juvenile offender and by the same order, said Sessions Case No. 203/2000 was split up against the said accused Gobinda Sarkar, directing him to appear before the Juvenile Justice Board, Barpeta. Accordingly, the GR Case No.1524/1998 (from which the Sessions case No. 203/2000 of Barpeta had arisen, wherein the impugned Judgment and conviction was passed) proceeded against the said accused Gobinda Sarkar before the Principal Magistrate, JJB, Barpeta. PW.1, Nitai Saha, informant of the case was also examined as PW.1 in the trial of said GR Case No.1524/1998, wherein he deposed by giving a different story of the case. As such one of the accused, Sanjib Ghose filed petition under Section 311 of CrPC for further cross examination of said PW.1, Nitai Saha and to call for the records of said GR Case No.1524/1998 from the Court of the Principal Magistrate, JJB, Barpeta. By order dated 21.05.2012, learned Sessions Judge, Barpeta rejected the said prayer, against which the accused persons filed Criminal Petition No. 426/2012. By order dated 01.09.2012 this Court disposed of said Criminal Petition No. 426/2012, setting aside the order dated 21.05.2012, passed by learned Sessions Judge, Barpeta in Sessions Case No. 203/2000 directing the said Sessions Judge to allow the accused persons to re-cross examine PW.1 (Nitai Saha) on their own expenses and without causing any delay. Said PW.1, Nitai Saha was re-cross examined by the defence on 04.11.2013. In the meanwhile by order dated 22.08.2013 the learned Additional Sessions Judge (FTC), Barpeta called for the records of said GR Case No. 1524/1998 from the Court of JJB, Barpeta that was disposed of on 06.09.2013.
34) It is to be noted herein that the record of said GR Case No. 1524/1998 consists of the evidences of the present witness Nos. PW.1, Nitai Saha; PW.2, Gopal Basak; PW.3, Gopal Page No.# 23/27 Basak and PW.4, Pintu Basak, given by them in the said GR Case, before the Juvenile Justice Board, Barpeta, which were exhibited by the defence as Exhibits - A to D.
35) From Exhibit-A it is seen that PW.1, Nitai Saha, informant of the case in his evidence in said GR Case No. 1524/1998 stated that the incident occurred about 14 years back and that his brother Baidya Nath Saha died in an accident, which fact was told to him by both Gopal Basaks. He stated that he filed the ejahar of the case and he did not remember what was written in it and that he did not see the incident.
During his cross examination in said GR Case, said Nitai Saha, PW.1 stated that Both Gopal Basaks told that his brother died and the ejahar of the case, Exhibit-1 was written by Mamtaz Ali, who did not read over the same to him and that his elder brother Babul Saha filed an ejahar before Dispur Police Station and that the ejahar Exhibit-1 was written maliciously by Mamtaz.
36) From Exhibit-B it is seen that PW.2, Gopal Basak, in his evidence in said GR Case No. 1524/1998 stated that about 14 years back there was an incident and he heard from others that Baidya Nath Saha had died in an accident, but he is not aware where he died and how he died. He neither remembered about lodging of ejahar by Nitai Saha nor about his interrogation by police.
In his cross examination in said GR Case, said Gopal Basak, PW.2 stated that he heard from others that Baidya Nath Saha had died at Guwahati and that he was not aware of any case filed by Babul Saha, elder brother of said Baidya Nath Saha.
37) From Exhibit-C it is seen that PW.3, Gopal Basak, in his evidence in said GR Case No. 1524/1998 stated that about 13 years while a cultural programme was going on during Durga Puja time, some elderly people came and collected their signatures stating that a person, by name Baidya Nath Saha had met with an accident and later heard that he died at Guwahati. He also stated that he is not aware of filing of any ejahar by Nitai Saha in connection with the said incident and police did not record his statement.
In his cross examination in said GR Case, said Gopal Basak, PW.3 stated that he heard that Baidya Nath Saha had died in a motor accident.
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38) From Exhibit-D it is seen that PW.4, Pintu Basak, in his evidence in said GR Case No. 1524/1998 stated that about 13/14 years back he heard that Baidya Nath Saha had met with an accident and said Baidya Nath died in that accident. He also stated that he is not aware of filing of any ejahar by Nitai Saha in connection with the said incident and police did not record his statement.
In his cross examination in said GR Case, said Pintu Basak, PW.4 stated that he does not know where said Baidya Nath Saha had died.
39) We have seen that sole defence witness Kandarpa Kumar Das, Member of the Juvenile Justice Board, Barpeta, who recorded the evidence of those witnesses PWs. 1, 2, 3 and 4 in GR Case No. 1524/1998, proved their statements, Exhibits - A, B, C and D and also identified his signatures in those statements. Further, in his re-cross examination, PW.1, Nitai Saha, informant of the case, admitted of giving such statement before the JJB, Barpeta in said GR Case No. 1524/1998, identified his signature given in his said evidence and also stated that Gopal Basak had adduced evidence in said GR Case. During his said re-cross examination, PW.1, Nitai Saha admitted before the Trial Court that his brother Baidya Nath Saha died in an accident.
40) We have noticed that prosecution did not examine any person from Down Town Hospital, Guwahati wherein the injured victim Baidya Nath was admitted on 01.10.1998 for his treatment, who died therein on 03.10.1998. Though the charge sheet (Exhibit-6) contains the name of a doctor of said Hospital, namely, Dr. Abhijit Lahkar as a prosecution witness, but prosecution did not examine him stating that the said doctor had left Down Town Hospital. Similarly, prosecution also did not examine another prosecution witness named in the charge sheet, namely, Kajal Saha, whose name was mentioned by the PW.1, informant of the Case Nitai Saha, stating that he along with Kajal, Gopal Basak and others brought the injured victim to the Mandir premise from the place of occurrence and that it is Kajal and Gopal Basak reported to him that the accused persons caused hurt in the person of his brother Baidya Nath. PW.3, Gopal Basak and PW.4, Pintu Basak also named said Kajal Saha who was at the place of occurrence with PW.2 and PW.3 and he along with PWs. 3 and 4 brought the injured Baidya Nath to the Mandir premises from the place of occurrence. Record reveals that Page No.# 25/27 said Kajal left for Ahmadabad and prosecution failed to provide his address.
41) Further, it is seen that the prosecution did not examine Dr. Gopal Talukdar, the doctor who attended and treated the victim Baidya Nath immediately after the incident and whose name was mentioned by the prosecution witnesses Nitai Ghose (PW.1), Gopal Basak (PW.2), Gopal Basak (PW.3) and Pintu Basak (PW.4).
42) Prosecution also did not examine Babul Chandra Saha, elder brother of the victim/deceased, who was with the injured victim at Down Town Hospital, Guwahati and filed a written application on 03.10.1998 before the Dispur Police Station regarding the death of his brother, stating that the victim Baiday Nath had un-natural death at Down Town Hospital, on the basis of which the Dispur Police Station UD Case No. 48/1998 was registered, the case in which inquest of said deceased was made at Down Town Hospital, Guwahati on 03.10.1998 as well as the Post Mortem Examination of the said deceased was performed at Gauhati Medical College & Hospital, Guwahati on 03.10.1998 itself. Moreover, said Babul Chandra Saha was also a witness to the Inquest Report of the deceased Baidya Nath (Ext.2) who identified the said deceased during his Post Mortem Examination and to whom the body of said deceased was handed over by the police personnel of Dispur Police Station after following the formalities. Prosecution also did not examine the concerned scribe writer, Mamtaz Ali, who wrote the FIR (Exhibit-1), whose name was mentioned by the informant, Nitai Saha, PW.1. It is seen from the records that after hearing the public prosecutor, the Trial Court by order dated 20.01.2012 closed the prosecution evidence.
43) From the perusal of evidence led by the prosecution, it is seen that it is not their case that Gopal Basak first went to the place of occurrence then came back to the house of the PW.1, informant Nitai Saha to report the matter to him about the assault on his brother Baidya Nath by the accused persons in a group and then went back to the place of occurrence again to attend said Baidya Nath. It also noticed that informant Nitai Saha, PW.1 did not state which of the Gopal Saha, whether PW.2 or PW.3 informed him about the incident. Though PW.2 Gopal Basak in his cross examination by the defence stated that he reported the matter to Manik Saha, Nitai Saha (PW.1) and others but, the prosecution did not examine said Manik Saha and others, whereas, Nitai Saha, PW.1 in his re-cross examination Page No.# 26/27 by the defence admitted the fact that said Baidya Nath Saha died in an accident.
44) We have thoroughly perused the evidence adduced by both the parties and have also gone through the judgments cited by them. But from the above, we have observed that the prosecution failed to establish any satisfactory evidence to prove the formation of an unlawful assembly with a common object, armed with deadly weapon, to commit the crime involved in the case. We have also noticed that Exhibi-2, Postmortem Report of the deceased, proved by the Autopsy Doctor, PW.5, goes to show that the injuries found on the person of the deceased were caused by blunt impacts.
46) Considering the entire evidence on record, we are of the view that the prosecution has failed to prove and establish the guilt of the accused appellants beyond all reasonable doubt of committing riot and/or unlawful assembly, armed with deadly weapons, with a common object in committing murder of deceased Baidya Nath Saha and, therefore, the appeal deserves to be allowed.
47) Accordingly, the impugned judgment of conviction and sentences dated 18.12.2015, passed by learned Additional Sessions Judge (FTC), Barpeta in Sessions Case No. 203/2000 against the accused appellants are hereby set aside and quashed.
48) The accused appellants, namely, 1) Sri Gopal Saha, 2) Sri Uttam Saha, 3) Sri Sanjib Ghose, 4) Sri Prasenjit Ghose, 5) Sri Dipak Ghose @ Benga Ghose, 6) Sanjay Basak, 7) Sri Parimal Saha, 8) Sri Biswanath Ghose and 9) Smti. Jostna Ghose are acquitted from the charges levelled against them in said Sessions Case No. 203/2000 arising out of Tarabari Police Station Case No. 124/1998 corresponding to G.R. Case No. 1524/1998 on the ground of benefit of doubt and they are acquitted of the charges framed against them and set at liberty forthwith.
49) The Superintendent as well as the Jailor of the District Jail, Barpeta are directed to release the accused appellants Nos. 1 to 8, named above forthwith, if there is no other impediment in it and/or if they are not required in any other case. The accused appellant No. 9, Smti. Jostna Ghose, is on bail during pendency of this appeal. As such the bail bond with regard to her bail stands discharged.
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50) Registry shall return the records of said Sessions Case No. 203/2000 to the Court of learned Additional Sessions Judge (FTC), Barpeta forthwith, with a copy of this judgment.
JUDGE JUDGE Comparing Assistant