Gauhati High Court
Sri Dinesh Gohain vs The State Of Assam And Anr on 31 March, 2022
Author: Suman Shyam
Bench: Suman Shyam, Malasri Nandi
Page No.# 1/13
GAHC010267902017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./93/2017
SRI DINESH GOHAIN
S/O LT. RUDESWAR GOHAIN, R/O UKANIMURIA BAANGALI GAON, P.S.
PANITULA, DIST. TINSUKIA, ASSAM.
VERSUS
THE STATE OF ASSAM and ANR
2:BITBOR GOHAIN
S/O LATE TUBUKA GOHAIN
DIHINGIA GAON
P.S. TINSUKIA
DIST. TINSUKIA
ASSAM
For the Appellant : Mr. D.P. Chaliha, Sr. Adv.
Ms. M. Roy, Adv.
For the Respondents: Ms. S. Jahan, APP, Assam
THE HON'BLE MR. JUSTICE SUMAN SHYAM
THE HON'BLE MRS. JUSTICE MALASRI NANDI
Date of hearing : 31/03/2022.
Date of judgement : 31/03/2022.
JUDGEMENT AND ORDER (ORAL)
Page No.# 2/13 Suman Shyam, J
1. Heard Mr. D.P. Chaliha, learned senior counsel assisted by Ms. M. Roy, learned counsel for the appellant. We have also heard Ms. S. Jahan, learned APP, Assam, appearing for the State.
2. This appeal is directed against the judgement dated 10/11/2016 passed by the learned Additional Sessions Judge No. 1, Tinsukia, in connection with Sessions Case No. 127(T)/2003 whereby, the sole appellant Dinesh Gohain was convicted under Section 447/302 of the Indian Penal Code (IPC) and sentence to undergo rigorous imprisonment for life and also to pay fine of Rs. 30,000/- for committing the offence under Section 302 IPC. The accused/appellant was also sentenced to undergo rigorous imprisonment for 3 (three) months and to pay fine of Rs. 5,000/- for committing the offence under Section 447 of the IPC. Both the sentences were to run concurrently.
3. The facts and circumstances of the case, give rise to the filing of this appeal, is briefly indicated herein below. On 27/02/1999, Sri Bitbor Gogoi had lodged an ejahar before the Officer-in-Charge of the Tinsukia Police Station reporting that on 26/02/1999, at about 10-30/11-30 p.m. some unknown miscreants had hacked his younger brother Swadin Gohain and sister-in-law Binapani Gohain on various parts of their bodies with sharp weapons, thereby killing them and left the dead bodies in front of the house and inside the compound of the deceased. Accordingly, a request was made to initiate appropriate action in the matter and apprehend the culprits. Based on the ejahar dated 27/02/1999, Tinsukia PS Case No. 91/1999 was registered under Section 448/302 IPC and the matter was taken up for investigation.
4. During the course of investigation, the Investigation Officer (IO) had arrested 3 accused persons, including the present appellant Dinesh Gohain, on 01/03/1999. However, it appears that all the three accused persons were granted bail by the learned trial Court.
5. Upon completion of investigation, the IO had submitted charge sheet against three accused viz. Dinesh Gohain, Pandit Gohain and Puspadhar Barua under the provisions of Section 448/302/34 of the IPC. However, it appears from the record that two accused persons, viz. Dinesh Gohain and Pushpadhar Barua went absconding, as a result of which, Page No.# 3/13 the third accused, viz. Pandit Gohain was alone subjected to trial. On conclusion of trial of Pandit Gohain, the learned trial Court had reached a conclusion that the prosecution had failed to prove the charge brought against him beyond reasonable doubt. As such, by the judgement dated 30/06/2004, accused Pandit Gohain was acquitted. Appellant Dinesh Gohain was re-arrested by the Police on 20/10/2012 and fresh charge was framed against him on 03/10/2012 under Section 447/302 of the IPC. Thereafter, the appellant was subjected to trial which commenced on 07/11/2012. It is, however, not clear from the record as to the fate of the accused Puspadhar Barua, who, according to some witnesses, had expired before he could be subjected to trial.
6. While proceeding against accused Pandit Gohain, the prosecution side had examined 13 witnesses including the minor daughter of the deceased viz. Smt. Malabika Gohain as PW-6, the doctor who had conducted the post-mortem examination (PW-8) and the three Investigating Officers, who had conducted the investigation in connection with Tinsukia PS Case No. 91/1999 and ultimately submitted charge sheet, as PWs 13, 14 and 15. Subsequently, the PW-6 Smt. Malabika Gohain and PW-4 Sri Putu Gohain were re-examined as PWs 10 and 11 respectively during the trial conducted in respect of the present appellant. However, it appears that the other witnesses did not appear during the trial of the appellant Dinesh Gohain despite receipt of summons, as a result of which, the appellant did not get any opportunity to cross examine any of those witnesses. Be that as it may, a bare reading of the impugned judgement goes to show that the learned trial Court had relied upon the evidence of the prosecution witnesses including those who did not appear during the trial of accused Dinesh Gohain and thereafter come to a conclusion that the charge brought against the appellant stood established by evidence of the eye witness as well as the circumstantial evidence adduced by PWs - 1, 2, 3, 4, 5 and 7.
7. Assailing the impugned judgement, Mr. Chaliha, learned senior counsel appearing for the appellant has argued that the prosecution had examined PW-6 as the eye witness in this case but proper procedure was not followed before recording the evidence of PW-6, who was a minor, when her testimony was recorded for the first time on 25/05/2004. Although, this witness was re-examined as PW-10 again on 27/11/2014, she was declared as a hostile witness as she did not support the prosecution case. As a matter of fact, submits Mr. Chaliha, PW-10 did not implicate his client at all. In so far as the other witnesses are concerned, save Page No.# 4/13 and except the PWs 5 and 7, none other witnesses have implicated the appellant. However, since the evidence of PWs 5 & 7 are hearsay evidence which do not have any probative value and in view of the fact that those witnesses could not be cross-examined by the appellant, the learned Court below has erred in law in relying upon the evidence of PWs 5 and 7 for convicting the appellant. He submits that there is no oher evidence against the appellant and therefore, the prosecution has failed to establish the charge even by circumstantial evidence.
8. Responding to the submissions made by the appellant's counsel, Ms. S. Jahan, learned APP, Assam, has argued that the PW-6 has claimed to have seen the incident and she has not only deposed before the Court to such effect but her testimony also finds due corroboration from her statement recorded before the Magistrate under Section 164 of the Cr.P.C. It is, however, unfortunate that subsequently, the PW-10 had turned hostile as a result of which, her evidence no longer remained credible. The learned APP submits that the homicidal death of both the victims is well established from the medical evidence as well as the testimony of the informant and the other witnesses. Therefore, it must be held that charge brought against the accused was established through circumstantial evidence. On such count, the learned APP, Assam, has prayed for dismissal of the appeal.
9. In so far as the failure on the part of the learned trial Court to secure the attendance of other witnesses, save and except PWs 4 and 6 for their re-examination during the trial of the appellant, Ms. Jahan has invited the attention of this Court to the provision of Section 299 of the Cr.P.C. read with Section 33 of the Evidence Act, 1872, to argue that in a given situation, it may be permissible for the Court to rely upon the previous evidence of the witnesses, if the conditions laid down in the said provision is met.
10. We have considered the arguments advanced by learned counsel for both the sides and have also carefully gone through the materials available on record. Since the learned trial Court had laid major emphasis on the testimony of PWs for convicting the appellant, we propose to discuss the evidence of this witness first in point of time.
11. PW-6 Smt. Malabika Gohain is the daughter of the deceased persons and she was examined as an eye witness to the occurrence. When PW-6 was first examined on 25/05/2004, she was aged about 14 years. However, a reading of her evidence does indicates that the learned Additional Sessions Judge had not put questions to the child witness so as to assess her intelligence and competence to depose before the Court without being tutored. Be Page No.# 5/13 that as it may, the evidence of PW-6 was apparently recorded on oath. PW-6 has deposed that she knew the complainant Bitbor Gohain, who is her paternal uncle i.e. her father's elder brother. Around 9 or 10 p.m. on 26/02/1999, while she was watching a movie along with the siblings, she heard screams outside the house. As she opened the door, she saw that accused persons, viz. Dinesh Gohain, Uju Gogoi, Puspa Barua were hacking her father and mother with dao in their courtyard. Out of fear, she had shut the door and remained inside. On the following morning, she informed the villagers. Police came and initiated investigation. Her father and mother died on the day of the incident itself. Her statement was recorded by the Police. In her cross examination, PW-6 had stated that she did not see accused Pandit Gohain on the day of the incident.
12. Subsequently, during the trial conducted against the appellant, the PW-6 was examined as PW-10. Her statement as PW-10 was recorded was recorded on 27/11/2014. While deposing before the Court, this witness has stated that on the day of the incident, some persons had come to their house and inflicted cut injuries on the person of her parents, as a result of which, they had succumbed to their injuries. On the following day, she had informed the matter to Majin Hazarika and Padma Hazarika but both of them were presently not alive. She has stated that Police came and interrogated her and also recorded her statement. Her statement was also recorded before the Magistrate under Section 164 Cr.P.C. Ext. 14 was the said statement. Later on, she came to know that the persons involved in the incident were Uju Gogoi and Pushpa but both of them were presently not alive. At that stage, this witness was declared as hostile witness.
13. During her cross examination, PW-10 has stated that she had implicated the accused pesons in this case and given statement before the Police as well as the Magistrate as per suggestion of her family members since a scuffle had taken place between her deceased father and the accused. PW-10 has further stated that the house of Putul Das was situated near their house.
14. The statement of PW-6 recorded by the Magistrate under Section 164 of the Cr.P.C. on 04/03/1999 is available on record. A perusal of the said statement goes to show that she had stated before the Magistrate that her mother and father were hacked by the appellant Dinesh Gohain, Puspadhar Barua and Uju Barua with a dao and she had seen the occurrence.
15. PW-3 Sri Bitbor Gohain is the informant in this case. He is also the elder brother of Page No.# 6/13 the deceased Swadin Gohain. PW-3 has deposed that the incident took place about 5 years ago. On the following morning of the incident, the two daughters of the deceased persons, viz. Malabika Gohain and Bhokoli and son Hirak Gohain came to their place and informed that somebody had killed their father and mother and left them on the spot. On going there, he saw that his sister-in-law was lying in the enclosed yard while his brother was lying near the gate. There were cut injuries in the neck of his brother which was severed into two pieces. The hand of his sister-in-law was severed and both the dead bodies had a number of cut injuries. This witness has proved the ejahar Ext. 2 by identifying his signature as Ext. 2(1) and has also deposed that he has put his signature in the inquest report Ext. 3 pertaining to the deceased Swadin Gohain as well as the inquest report Ext. 4 pertaining to deceased Binapani Gohain. PW-3 has also categorically stated that Malabika (PW-6) did not tell him as to who had done the killing. Earlier also, Swadin Gohain had been involved in an incident. He had learnt that one Dinesh from their village had hacked Swadin and had further learnt that Uju and Puspa Gogoi were there along with Dinesh.
16. During his cross examination by the appellant, this witness has reiterated that he had found the deceased Swadin Gohain lying dead in the gateway of his house and also found that Binapani Gohain was lying in the enclosed yard. At the time of the incident, there was electricity connection in the house of Swadin Gohain. He had reached the place of occurrence At 5-30 a.m. but did not find any person present there. Putul Hazarika came first and thereafter, a few others arrived. According to the PW-3, the house of Putul Hazarika is in front of the house of Swadin. This witness has, however, maintained that the appellant Dinesh Gohain and the deceased Swadin Gohain used to move around together.PW-3 has also stated that he did not see any item being seized by the Police. He suspected Dinesh Gohain because of some earlier dispute with the deceased.
17. PW-4 Sri Putu Gohain has also deposed on similar lines by stating that the incident took place at night and he came to know about the same on the following morning from the public. On his arrival at the place of occurrence, he saw Swadin was lying dead in the gateway of the house and Binapani was lying dead in a corner of the enclosed yard. He had seen injuries in both the dead bodies. PW-4 is also an inquest witness and he has identified his signatures in the two inquest reports as Ext. 3(2) and Ext. 4(2). PW-4 has also stated that he had learnt that Dinesh, Puspa and Uju had hacked Swadin on the day of the incident but Page No.# 7/13 he did not see as to who had hacked Swadin and Binapani. Cross examination of this witness was declined.
18. PW-5 Smt. Padma Hazarika is related to the complainant. She has deposed that the daughter of Swadin, viz. Malabika had informed her that at about 10 p.m. on 26/02/1999 that Dinesh, Puspa Barua and Huju Gogoi had hacked Swadin Gohain and Binapani Gohain to death in their own house. On receiving the news, she went to Malabika's house and found Swadin Gohain and Binapani Gohain lying dead in the house. She did not have anything more to say before the Court.
19. PW-7 Sri Bharot Gohain is another inquest witness. He hails from the same village and is also the younger brother of the deceased Swadin Gohain. He has deposed that the incident took place in the year 1999. At around 4 a.m. on the following morning, Swadin Gohain's daughter i.e. his niece Malabika Gohain came to his house and told that on the previous night, her father Swadin Gohain and her mother Binapani Gohain had been hacked to death with a dao. She had seen the occurrence. According to Malabika, accused Dinesh Gohain, Puspadhar Barua, Akon Moran were the persons who had hacked her parents to death. On coming to know about the same, he went to the house of Swadin Gohain and saw the cut wounds on the head and neck of Swadin Gohain. He had also seen cut marks on the body of Binapani Gohain. In his cross examination, PW-7 had stated that the residences of Putul Hazarika, Nitul Hazarika and Mati Thakur were near the house of Swadin Gohain and situated at a distance of 30-35 mtrs. His niece told him that she could recognize Dinesh Gohain, Puspadhar Barua and Akon Moran and added that there were a few others but she could not recognize them. This witness has further stated that Dinesh Gohain had a dispute with Swadin Gohain on one occasion. Dinesh used to live near the house of Swadin and both of them used to move around together.
20. From the evidence of Pw-7, it would be evident that according to this witness, Akon Moran was also one of the persons who was seen by the PW-6 to have assaulted the deceased. However, we find that Akon Moran had been examined as prosecution witness No.1. This witness (PW-1) did not implicate the accused persons while deposing before the Court. PW-1, was declared as a hostile witness on the request of the prosecution.
21. PW-2 Smt. Tutumoni Moran did not see anything but she had merely stated that she knew the accused persons Pandit Gohain, Dinesh Gohain and Puspadhar and also the fact Page No.# 8/13 that Binapani Gohain was the wife of late Swadin Gohain.
22. Dr. Rupak Kumar Gogoi was the Professor of Forensic Medicine on duty in the Assam Medical College and Hospital, Dibrugarh on 28/02/1999 when the dead bodies of the two victims, viz. Swadin Gohain and Binapani Gohain were taken there for post-mortem examination. PW-8 has proved the post-mortem reports Exts. 8 & 11 in respect of Swadin Gohain and Binapani Gohain respectively. According to the post-mortem report, the following injuries were seen in the dead body of Swadin Gogoi :-
"EXTERNAL APPERANCE The deceased was found wearing long plant, full shirt, Jangia and a pair of hawai sandal. Complexion is swarthy, built average, rigormortis present on both upper and lower limbs. Body and garments were stained with dried blood. (A) Injuries:
i) An incised wound horizontally placed present an upper part of back of the neck measuring 12cm x 3 cm which incised the second cervical vertebrae and spinal cord.
ii) An incised wound present on left parietal area of scalp in sagittal plane of 4 cm away from mid line measuring 10cm x 2 cm Brain deep.
iii) An incised would in coronal plane present on both parietal area of scalp measuring 9 cm x 2 cm brain deep.
The post-mortem report Ext. 11 has revealed the following injuries in the body of the deceased Binapani Gohain.
"(A) Injuries :
(i) A horizontally placed incised wound present on lateral side of lower third of the left leg measuring 4 cm x 2 cm with partially incised the both bones of the leg.
(ii) A horizontally placed incised wound present on lateral side of the middle part of right forearm measuring 4 cm x 2 cm which incised the both bones of the forearm and leaning only a tag of skin medially.
(iii) One incised wound present on dorsum of the right hand in longitudinal plane measuring 8 cm x 2cm which incised the 4 th meta Page No.# 9/13 carpel bone.
(iv) A horizontally placed incised would present on left lateral side of upper part of the neck measuring 15 cm x 4 cm which incised the 2 nd cervical vertebrae, spinal cord, Trachea oesophagus and leaning only a tag of skin and muscles on right side.
(v) A horizontally placed incised wound present on left cheek measuring 15 cm x 3 cm which incised the mandible and maxilla.
(vi) A horizontally placed incised wound present on left cheek 2 cm below the Injury No. v measuring 7 cm x 2 cm which incised the maxilla.
(vii) A horizontally placed incised wound present on left temporal area of scalp measuring 16 cm x 2 cm which incised the left pinna and brain deep.
(viii) A horizontally placed incised would present on right lateral side of idle part of the neck measuring 8 cm x 3 cm muscle deep.
(ix) An incised would present an anterior surface of the right shoulder measuring 6 cm x 4 cm muscle deep."
23. Sri Subha Gogoi is another relative of the accused and he was examined as PW-9. This witness has deposed that on the day of the incident, he was at the residence of accused Dinesh Gohain so as to look after his house. He went out at night. Thereafter, the accused returned to his house in the next morning. This witness, however, did not implicate the accused.
24. Sri Putu Gohain, who was earlier examined as PW-4 was also re-examined as PW-11 during the trial qua the appellant. His statement was recorded on 28/04/2015. PW-11 has deposed that he had heard that somebody had killed his brother Swadin Gohain and his wife Binapani Gohain. Then he rushed to the residence of the deceased and saw the dead bodies. PW-11 was also an inquest witness. He has proved his signature in both the inquest reports Exts. 3(4) and 4(4). Besides that, this witness did not have anything significant to state.
25. Sri Gopal Chandra Sarma Kandali, who was examined as PW-12 also did not see the incident but had merely stated that on the following day of the incident, his neighbour Majin Page No.# 10/13 Hazarika had informed him that somebody had committed the murder of Swadin Gohain and his wife Binapani Gohain on the previous night. Thereafter, he had informed the matter to the Police and went to the place of occurrence along with the Police. There he saw the dead bodies were lying outside their house. He had noticed cut injuries on the persons of the deceased. Cross examination of this witness was declined.
26. PW-13 Sri Bhabesh Chandra Sarma was the Officer-in-Charge of the Hijuguri Police Outpost on 27/02/1999. This witness has deposed that on that day, at about 6-10 a.m. in the morning, one Ring Sharma Kandali informed him over phone that Swadin Gohain and his wife had been murdered by some miscreants. On receiving the information, he had made GD entry and immediately informed his senior officers about the incident. He then proceeded to the place of occurrence, which is Dihingia Gaon and on reaching there, he saw the dead bodies of the deceased, which were shown by one Bitbor Gohain. PW-13 has further stated that an FIR was received from Bitbor Gohain, based on which, Tinsukia PS Case No. 91/1999 was registered under Section 448/302 of the IPC and the matter was entrusted to him for investigation.
27. From the evidence of PW-13, it has also come out that he had taken steps for recording the statement of the witnesses, drew sketch map, conducted inquest and sent the dead bodies for post-mortem examination. PW-13 has also deposed that from the evidence adduced by the witnesses, he came to know that the accused persons Dinesh Gohain, Puspadhar Barua and Uju Gogoi had committed the offence. He had seized a grey coloured jacket and one machete from the house of Dinesh Gohain vide seizure list Ext. 6. He had also arrested Uju Gogoi and Pandit Gohain. It appears that PW-13 was transferred before he could complete the investigation.
28. PW-14 Sri Makhan Borah was posted as In-charge of the Hijuguri Town Outpost on 04/01/2000. He is the second IO in this case and he took over the case from PW-13. From the evidence of PW-14, it has come out that he had received information that accused Dinesh Gohain had been arrested by the Tinsukia Police in connection with Tinsukia PS Case No. 84/2000 and 477/1999 and accordingly, he had shown him arrested in the present case also. Thereafter, he had interrogated accused Dinesh Gohain and he was taken into four days police custody. At that stage, PW-14 was transferred, as a result of which, the case diary had to be returned back to the Officer-in-Charge of the Police Station.
Page No.# 11/13
29. It appears that Sri Subal Chandra Talukdar i.e. the PW-15 had taken over the investigation from PW-14. After completing the investigation, he had submitted charge sheet against the accused persons viz. Pandit Gohain, Dinensh Gohain and Puspadhar Barua under Section 448/302/34 of the IPC. PW-15 has proved the charge sheet Ext. 16 by identifying his signature thereon.
30. From a careful analysis of the evidence available on record, we find that PWs 5 and 7 had implicated the accused persons on hearing about his involvement from the PW-6, who was examine as an eye witness to the occurrence. PW-6 was later re-examined as PW-10. However, as noted above, we find that the evidence of PW 6 and 10 suffer from material contradictions.
31. We have also noted that as per PW-6, after the incident that took place around 9/10 p.m., she had remained inside the house along with her brother and sister and only in the next morning, she had informed about the matter to others. But as per PW-5, PW-6 had informed her about the incident at around 10 p.m. on 26/02/1999 itself. PW-10 has also deposed that she had implicated the accused persons on the advice of her family members due to an old quarrel between the accused persons and her deceased father. Although, the learned trial Court has held that this witness had spoken the truth as PW-6 but had come up with a concocted story while deposing as PW-10, we are of the opinion that even if such a view is taken, even then, this witness cannot be held to be a reliable. In other words, the evidence of PW-6/10 cannot be held to be trustworthy. If that be so, since PWs 5 & 7 had heard about the incident from PW-6, the evidence of PWs 5 & 7 is nothing more than hearsay evidence which would not have any probative value in establishing the charge brought against the appellant.
32. In so far as the testimony of PWs- 1, 2, 3 and 4 are concerned, they do not implicate the appellant and therefore, their evidence is also not of any assistance to the prosecution to establish the chain of circumstances so as to convict the appellant in respect of the charge brought under Section 447/302 of the IPC. The remaining witness are all official witness and they have merely deposed as regards the manner in which the post-mortem examination and investigation has been carried out in this case.
33. It is no doubt correct that from the evidence available on record, it is firmly established that the deceased Swadin Gohain and Binapani Gohain had suffered homicidal Page No.# 12/13 death on being hacked by sharp weapon. It is also established that the incident took place on 26/02/1999 in between 10-30 and 11-30 p.m. However, from the evidence available on record, there is no clarity as to who were/are the assailant(s). The mere fact that there was some quarrel between the appellant Dinesh Gohain and Swadin Gohain at some point of time, cannot be a valid ground for the Court to presume that the motive behind the commission of the crime was personal grudge of the appellant. Moreover, even if that version is accepted, even then, nothing is shown as to why, the other accused person, viz. Puspadhar Barua would take part in committing such a heinous crime. Therefore, viewed from any angle, we are of the opinion that the prosecution had failed to establish the charge brought against the appellant under Section 447/302 of the IPC beyond reasonable doubt.
34. It is also to be noted herein that the PW-6 Malabika had implicated Pandit Gohain and the appellant in her statement made before the IO and also in her evidence. Placing reliance upon such evidence, the learned trial Court had acquitted Pandit Gohain. Since PW- 10 was declared hostile witness, the prosecution case was evidently standing on a stronger footing in the trial qua the accused Pandit Gohain as compared to the appellant. Notwithstanding the same, by analyzing the evidence on record, accused Pandit Gohain has been acquitted but the appellant has been convicted. In view of the law laid down by the Hon'ble Supreme Court in the case of Ram Laxman Vs. State of Rajasthan reported in (2016) 12 SCC 389, we are of the view that it was not permissible for the trial Court to split the same evidence to grant acquittal to one co-accused while convicting the other i.e. the appellant herein.
35. In so far as the arguments of the learned APP regarding applicability of Section 229 of the Cr.P.C. is concerned, we find that the learned trial Court has not cited any reason as to why the attendance of the witnesses could not be secured during the trial of the case qua the appellant Dinesh Gohain. Moreover, the statement of the witnesses recorded under Section 164 Cr.P.C. has been exhibited so as to overcome the absence of these witnesses. In our view, such a recourse was impermissible under Section 229 of the Cr.P.C. read with Section 33 of the Evidence Act, more so, without recording proper reason as to why, the presence of the witnesses could not be secured by the Court below.
36. For the reasons stated herein above, we are of the opinion that the learned Trial Court had committed manifest error in holding that the charge brought against the appellant Page No.# 13/13 under Section 447/302 of the IPC was established by both direct evidence as well as circumstantial evidence. On the contrary, we are of the view that the prosecution has failed to establish the charge brought against the accused beyond reasonable doubt.
37. Before parting with the records, we deem it appropriate to observe herein that after going through the materials available on record, we find that this is yet another case of botched up investigation and flawed trial as a result of which, the guilty has gone un- punished. Glaring lapses in conducting the investigation by the IO and his failure to collect evidence and produce the same during trial is noticeable. It is high time that State Agencies took note of such lapses in investigation and trial and initiated appropriate remedial measure so as to restore the faith of the public in Criminal Justice system of the State.
38. In view of the discussion held in the foregoing paragraphs, the appeal stands allowed. The appellant Dinesh Gohain is hereby acquitted of the charge brought against him. He be released from jail forthwith if his detention is not required in connection with any other proceeding.
Registry to send back the LCR.
JUDGE JUDGE Sukhamay Comparing Assistant