Gauhati High Court
Sri Rajen Dihingia vs The State Of Assam on 20 March, 2012
Author: A.K. Goel
Bench: A.K. Goel
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
CRIMINAL APPEAL NO. 185(J) OF 2007
1. Shri Rajen Dihingia
Son of Shri Gubin Dihingia,
2. Shri Sarat Dihingia,
Son of Shri Gubin Dihingia,
Both are residents of Gabharubheti
Kallllbari, P.S. Doom Dooma,
District- Tinsukia, Assam.
.......... APPELLANTS.
- VERSUS -
The State of Assam ...... RESPONDENT.
BEFORE HON'BLE CHIEF JUSTICE MR. A.K. GOEL HON'BLE MR. JUSTICE C.R. SARMA For the appellant : Ms. R. Boro Bora, Amicus Curiae.
For the respondent : Mr. K.A. Mazumdar,
Addl. P.P. Assam.
Date of hearing : 27.01.2012
Date of Judgment and order::: 20/03/2012
JUDGEMENT AND ORDER (CAV)
(C.R. Sarma, J)
[1] This appeal is directed against the judgment and
order, dated 21.05.2007, passed by the learned Additional 2 Sessions Judge No. 2 (F.T.C.), Tinsukia, in Sessions Case No. 01(T)/2006.
[2] By the impugned judgment and order, the learned Additional Sessions Judge, convicted Shri Sarat Dihingia and Shri Rajen Dihingia (hereinafter called the "appellants"), for the offence under Section 302 of the Indian Penal Code (for short, the „IPC‟) and sentenced them to suffer rigorous imprisonment for life and pay fine of Rs. 1,000/-(Rupees one thousand) each only, in default, suffer rigorous imprisonment for another period of 3 (three) months for their conviction, under Section 302 IPC.
[3] We have heard Ms. R. Boro Bora, learned Amicus Curiae, appearing for the appellants and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, appearing for the State respondent.
[4] The prosecution case, in brief, is that, on 15.01.2004 at about 7.00 p.m., the appellants, namely Shri Sarat Dihingia and Shri Rajen Dihingia assaulted Shri Khogen Dihingia (hereinafter called the, "deceased"), on the road, with dao, as a result of which the deceased succumbed to the injuries, sustained by him. Shri Basanta Dihingia (PW- 5), son of the deceased lodged the FIR (Ext. 4), with the Officer-in- Charge of the Doom Dooma Police Station, on 16.01.2004. Upon receipt of the FIR, police registered a case under Section 302 IPC and launched investigation into the matter.
3[5] During the course of investigation, police visited the place of occurrence, recorded the statement of witnesses, prepared sketch map (Ext. 6) of the place of occurrence, got the inquest (Ext. 2) done by a Magistrate and forwarded the dead body to the Assam Medical College & Hospital, Dibrugarh for post-mortem examination. Police arrested the accused persons and at the close of investigation submitted the charge sheet, under Sections 302/34 IPC.
[6] The offence being exclusively triable by the Court of Sessions, the learned Additional Chief Judicial Magistrate, Tinsukia committed the case to the Court of Sessions. The learned Additional Sessions Judge No. 2 (FTC), Tinsukia framed charge under Section 302 read with Section 34 IPC. The charge was read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried.
[7] In order to prove their case, the prosecution examined as many as 10 (ten) witnesses, including the Medical Officer (PW- 4), who performed the autopsy and the police officers (PW Nos. 8, 9 and 10), who conducted investigation. At the close of the evidence for the prosecution, the accused persons were examined, under Section 313 of the Criminal Procedure Code (in short, the Cr. P.C."), they denied the allegations, brought against them and examined one defence witness as DW 1. Considering the evidence on record, the learned trial Judge convicted and sentenced the appellants, as indicated herein above.
4[8] Aggrieved by the said conviction and sentence, the convicted persons, as appellants, have come up with this appeal.
[9] Ms. R. Boro Bora, the learned Amicus Curiae, appearing for the appellants, taking us through the evidence on record, has submitted that except the evidence of PW -5 i.e. the son of the deceased, there is no other evidence against the appellants. Referring to the evidence of PW-5, the learned amicus curiae has strenuously argued that, as the occurrence had taken place in a dark night, the evidence of PW 5 that he had seen the accused, Shri Sarat Dihingia giving blow to the deceased is not believable. It is also submitted that a careful reading of the evidence of PW -5 will reveal that PW 5, in fact, did not see the appellant giving the blow. The learned amicus curiae has also submitted that, at the time of alleged occurrence, PW 5 was five feet ahead of the deceased and hearing alarm raised by the deceased, he looked back and saw the appellant running away. Therefore, it is submitted that there is no substantive evidence to show that the appellant had assaulted the deceased. The learned amicus curiae has further submitted that the prosecution failed to prove the case, beyond all reasonable doubt, by adducing cogent and reliable evidence and as such, the appellants are entitled to be acquitted on benefit of doubt.
[10] Refuting the said arguments, advanced by the learned amicus curiae, Mr. K.A. Mazumdar, learned 5 Additional Public Prosecutor has submitted that the prosecution has been able to establish that the deceased had sustained fatal injuries in the occurrence, that took place on the fateful evening and that the appellants had assaulted the deceased. It is also submitted that the evidence of PW 5, who was the eye-witness to the occurrence, coupled with the medical evidence, clearly indicates that the deceased died due to the injuries sustained by him at the hands of the appellants. Therefore, it is submitted that the learned trial Judge committed no error by convicting and sentencing the appellants.
[11] Having heard the learned counsel, appearing for both the parties and considering the evidence on record, we find that except the evidence of PW 5, there is no other direct evidence regarding the involvement of the appellants.
[12] Shri Mahan Kalita, who deposed as PW 1, appeared in the house of the deceased and took him to the hospital. According to this witness, the deceased sustained injuries, on his head and he succumbed to the said injuries in the hospital. This witness was silent about the involvement of the appellants.
[13] Shri Hemanta Ahom, who deposed as PW-2 stated that he came to know about the incident on 15.01.2004 at about 7.30 p.m. and accordingly visited the house of the deceased, wherein the deceased was found in serious condition. This witness joined Shri Basanta Dihingia (PW-5) 6 in carrying the deceased to the hospital, wherein the later died. According to this witness, he neither asked PW 5 nor he was told as to how the deceased sustained the injuries.
[14] Shri Debananda Gogoi, deposing as PW 3, stated that, on 15.01.2004 at about 7.30 p.m., some persons had quarreled with his gardener and due to darkness he could not see the said persons. He also stated that he saw cut injuries on the head of the deceased, who was taken to the hospital for treatment. According to this witness, he was told by Shri Basanta Dihingia (PW-5) that the appellants had caused the injuries.
[15] The Medical Officer, Dr. Rupak Kumar Gogoi (PW 4), who performed the autopsy in respect of the dead body of the deceased on 17.01.2004, found the following injuries:
"1. One incised wound measuring 22 cm x 8 cm present on frontal area of the scalp which incised the frontal bone and brain matter.
2. One incised wound measuring 18 cm x 6 cm present on left Zygomatic area and left cheek which incised the left Zygomatic bone and left maxilla bone."
The said medical officer opined that the death of the deceased was caused due to shock and haemorrhage resulting from the injuries aforesaid, which were ante mortem, caused by heavy and sharp cutting weapons and that the injuries were homicidal in nature. He also opined 7 that the deceased died 36 to 40 hours prior to the post- mortem examination.
[16] From the above medical evidence as well as the evidence, rendered by the prosecution witnesses, it has been clearly established that the deceased died due to injuries sustained by him in the evening of 15.01.2004 i.e. the alleged incident. As per the medical opinion, the injuries were caused by heavy and sharp cutting weapon.
[17] Shri Punyeswar Baruah (PW-6) and Shri Hemanta Dihingia (PW-7) did not say anything about the involvement of the appellants. Shri Girin Sonowal (PW-8), Shri Prafulla Borgohain (PW 9) and Shri Kamal Konwar (PW 10) are the investigating officers. Their evidence was formal, in nature, without revealing any substantive evidence regarding involvement of the appellants.
[18] The prosecution version is that the appellants had caused the said injuries with dao. The informant, i.e., the son of the deceased, in the FIR, stated that the appellants had hacked his father with dao. Now the point to be decided is whether the prosecution could establish, beyond all reasonable doubt, that the appellants had caused the said fatal injuries.
[19] As discussed earlier, we find that none of the prosecution witnesses, except PW 5, as indicated above, had stated anything about the involvement of the appellants.
8Law is well settled that the sole testimony of an eye-witness can be the basis of conviction if the same is found to be cogent and reliable.
Therefore, we are required to examine if the evidence of PW 5 is trustworthy. PW 5 gave contradictory evidence regarding the involvement of the appellants. Firstly, he stated that the appellant Shri Sarat Dihingia had given cut blow on the forehead of his father and that the occurrence took place at 'Tiniali' (a meeting point of three roads) near the Gabharubheti Hindi School. He further stated that, initially, the appellants went to the house of Shri Debananda Gogoi, i.e., PW 3 and made halla and that the deceased asking them not to do so, took them towards their respective houses and, in the meantime, one of the accused had hit his (PW -5's) father from behind, for which he had raised hue and cry. He further stated that accused Shri Sarat Dihingia just before inflicting cut blow on his father, had assaulted him (PW 5) by giving a blow on his head, as a result of which, he had raised hue and cry.
[20] In his cross-examination, made, on behalf of the defence, this witness stated that he was five feet ahead of his father and he rushed to his father as soon as he had raised alarm. He also stated that there was no light in the place of occurrence and from a distance of about five feet had seen the appellants running away. He also stated that due to darkness he could not notice as to what kind of dao (incriminating weapon) was carried by the appellants.
9[21] From a careful scrutiny of the said evidence rendered by PW 5, it is found that, at the time of occurrence, he was proceeding ahead of his father and his father had taken the appellants with him towards their houses, asking them not to make any disturbance. Therefore, as admitted by PW 5, it being a dark night, he could not identify the type of the dao.
[22] In view of the above, it is doubtful whether the PW 5 could identify the accused persons. It is not understood as to how he could identify the appellants, inasmuch as, he could not identify the type of the dao, due to darkness. Further, as he was five feet ahead of his father, in normal course, he could not have seen as to who had inflicted the cut blows. According to PW 5, after hearing alarm, raised by his father, he rushed back to him and saw the accused persons, running away from the place of occurrence, that too from a distance of ten feet. Therefore, it is clearly found that, what PW 5 had seen, was that the appellants were running away from a distance of ten feet from the place of occurrence. Therefore, there is no difficulty in understanding that PW 5 did not see the appellants inflicting the fatal blows on his father.
[23] Though the PW 5, in his examination-in-chief stated that he had seen the appellant, Shri Sarat Dihingia giving cut blows on his father, he contradicted the said statement by saying that he had seen the appellant running away from a distance of about ten feet. In his examination-in-
10chief, PW 5 did not whisper anything regarding the involvement of the appellant, Shri Rajen Dihingia. If the evidence of this witness given in examination-in-chief is accepted, then, the involvement of accused Shri Rajen Dihingia stands ruled out.
[24] From the above discussion, it is found that PW 5 did not see the appellants assaulting his father. Therefore, in the absence of any corroboration, on material point, the evidence of PW 5 that he had seen the appellants running away from a distance of ten feet cannot be safely treated as a substantive and conclusive evidence to base the conviction. This witness denied the suggestion, put to him by the defence, that initially he had mentioned the names of Shri Pradip Dutta and Shri Halong Moran to be the assailants, but due to threat given by Shri Rewet Moran, a member of SULF(A), he had lodged the FIR implicating the appellants and deleting the names of Shri Pradip Dutta and Shri Halong Moran aforesaid.
[25] Supporting the said defence version, Shri Biren Saikia, who deposed as DW 1, stated that Shri Pradip Dutta and Shri Halong Moran had picked up an altercation with the choukider of Tea Garden of Shri Debananda Gogoi (PW-3) and at that time the appellants alongwith one Shri Sanatan Gogoi were also present. He also stated that hearing hallah, raised by the deceased and his son (PW 5), he went to the place of occurrence and pacified Shri Pradip Dutta and Shri Halong Moran. According to this witness, after the said 11 incident, he, alongwith the appellants returned home and came to know that the deceased was assaulted by some persons. He clearly stated that at the time of occurrence, the deceased was in his company. This witness, supporting the suggestion put to PW-5, stated that the FIR was initially written implicating Shri Pradip Dutta and Shri Halong Moran, but at the instance of Shri Rewet Moran, a member of SULF(A), the same was modified implicating the appellants. He denied the suggestion that as the appellants were his co- villagers, he had given false evidence. Except putting the said suggestion, which was categorically denied by DW 1, no material contradiction could be elicited in respect of his evidence.
Therefore, we find no reason to brush aside the evidence, given by the said defence witness regarding innocence of the appellant. The said suggestion, put to PW 5, which was denied by him, couple with the evidence, given by DW 1, raises doubt about the involvement of the appellants. We have already noticed that PW 5 did not see the appellants assaulting his father.
[26] In view of what has been discussed above, we have no hesitation in holding that the evidence, rendered by PW 5, cannot be accepted as substantive evidence to believe the involvement of the appellants with the alleged occurrence. Therefore, we are inclined to hold that the prosecution failed to establish, beyond all reasonable doubt, that the appellants caused fatal injuries to the deceased, resulting his death.
12[27] In view of the above discussion, we find sufficient merit in this appeal requiring interference with the impugned conviction and sentence. The appeal is allowed and the impugned conviction and sentence are set aside. The appellants be set at liberty forthwith, if not required in any other case.
[28] We acknowledge, with appreciation, the assistance, rendered by Ms. R.D. Boro Borah, learned counsel, as amicus curiae and direct that an amount of Rs. 5,000/- (Rupees five thousand) only be paid to the learned Amicus Curiae, as her remuneration by the Assam Legal Services Authority.
[29] Return the LCRs.
JUDGE CHIEF JUSTICE
Eam/