High Court · 2012

Briefly stated, the prosecution case is that on 10.02.2003, at a 3. bout 06:30 am, a quarrel took place between the appellant and his younger brothe r, Padma Kanta Sarma over partition and sharing of their paternal property. In t he quarrel, Padma Kanta Sarma caused injury on the face of his elder brother Rat na Kanta Sarma (appellant) with the help of a sickle. The appellant attacked the deceased with lathi and gave several blows by a lathi and as a result, Padma Ka nta Sarma died in front of their house. The incident was informed to the Police and one Md Abdul Momin, ASI of Police from Itachali out post visited the place o f occurrence and lodged an FIR with the In-charge of the said out post. He made a GD Entry and forwarded it to the Officer-In-Charge of Nagaon Police Station fo r registering the case. Accordingly, Nagaon PS Case No. 123 of 2003 was register ed under Section 302 IPC. The Investigating Officer, on completion of formality and completion of investigation, submitted the chargesheet. The learned Judicial Magistrate First Class, Nagaon, committed the case to the Court of Sessions at Nagaon as the offence under Section 302 IPC is exclusively triable by the Court of Sessions. Charge was framed under Section 304 IPC by the learned Sessions Cou rt. The accused, on being read over and explained the charge, pleaded not guilty and claimed to be tried. The prosecution examined as many as 7 (seven) witnesse s. The accused adduced no evidence taking the stand of complete denial of the ch arge. At the close of recording of evidence of prosecution witnesses, the accuse d was examined under Section 313 CrPC, putting before him all the evidence found against him in the evidence of prosecution witnesses. He denied the incriminati ng evidence and declined to examine any witness in his defence.

4. The learned trial Court on the basis of the evidence and the mat erials available on record and upon hearing the learned counsel for the parties passed the impugned judgment convicting and sentencing the appellant as already stated earlier. Amongst the 7 (seven) witnesses examined by the prosecution, the 5. re are 3 (three) eyewitnesses. They are PW-1, Sri Gopal Bora; PW-2, Smt Hemeswar i Sarma; PW-3, Mahendra Bhuyan.

6. PW-1, Gopal Bora is an independent witness, he being a neighbour of the deceased and the appellant. He deposed that on hearing hue and cry, he c ame out and saw the deceased Padma Sarma with a dao in his hand chasing his brot her, Ratna Sarma, the present appellant. In the process of chasing, he saw blood oozing from the face of the appellant due to cut injury. Meanwhile, PW-2, Hemes wari Sarma, wife of the accused came to the scene and caught hold of the hands o f the deceased Padma Sarma while PW-1 snatched away the dao. In the process of s natching the dao, PW-1 received injuries on his hand. The said crime weapon was later on handed over to the wife of the accused which was again handed over to P olice during investigation.

7. PW-2, Hemeswari Sarma is the wife of the accused. She has corrob orated the evidence of PW-1. She, however, added that the deceased Padma Sarma w as suffering from epilepsy. The third eyewitness, Mahendra Bhuyan also corrobora ted the evidence of PWs-1 and 2. He also testified that the deceased Padma Sarma was suffering from epilepsy. He further stated that the deceased used to carry dao all the time. Prior to the present incident, he caused injury to one boy of the village. For this reason, the villagers including the children were afraid o f him.

8. The Medical Officer was examined as PW-7. He deposed that he con ducted the post-mortem examination on the dead body of Padma Sarma on 11.02.2003 . It appears that PW-7 prepared a report but it was not proved by any witness. I am afraid, as the said important document was not proved and marked as Exhibit, the Court can look into it and take any assistance from the post-mortem report. It is also surprising to note that in the post-mortem report, details of injuri es found on the dead body have not been mentioned. However, he has mentioned in the post-mortem report that the cause of death was due to shock and haemorrhage, as a result of head injuries.

9. The Investigating Officer, PW-6 testified the making of GD Entry and lodging of FIR by him. According to him, he visited the place of occurrence , examined witnesses, held inquest and sent the dead body for post-mortem examin ation. In his evidence, he also stated that the appellant received injury on his person. He made preliminary enquiry on the basis of ejahar lodged by the appell ant against the deceased and during such enquiry he found the present appellant in the hospital for treatment of his injury. He saw the cut injury from his nose to the chin. During investigation, he also came to know that the deceased was s uffering from epilepsy.

10. The evidence of the above eyewitnesses which are corroborating e ach other on material particulars firmly establish that the deceased was sufferi ng from epilepsy and he chased the appellant on the day of occurrence. The decea sed caused injury to the person of the appellant. The prosecution, however, coul d not prove that the appellant assaulted or caused any injury to the person of t he deceased while he was chasing the accused. The evidence on record is that PW- 2 caught hold of the hands of the deceased and PW-1 somehow snatched away the da o from his hands and then only, the appellant could be saved from the aggressive attack of the deceased. It may be noted that the Medical Officer, PW-7, in his cross-examination, stated that the injury found on the person of the deceased mi ght be caused on fall against any hard substance or on the road.

11. Nothing has been brought in the evidence that any quarrel ensued between the 2 (two) brothers prior to the present incident over ancestral prope rty. No evidence has been led by the prosecution in this regard although some wi tnesses stated about the same in their statements before the Police under Sectio n 161 CrPC. As no evidence was adduced in this regard, the Court has to exclude the same from consideration. PWs-4 and 5 refused to support the prosecution case and so they 12. were declared hostile. On the face of corroborated evidence of the eyewitnesses on the incident without implicating the appellant, I do not deem it necessary to take into consideration the evidence of the aforesaid hostile witnesses, PWs-4 and 5.

13. In view of appreciation of evidence on record, particularly the evidence of PWs-1, 2 and 3, I hold that the prosecution failed to prove the char ge against the appellant beyond reasonable doubt and the appellant is entitled t o acquittal on benefit of doubt.

14. The judgment and order dated 21.07.2005, which is under challeng e is quashed and set aside. The appellant, Sri Ratna Kanta Sarma, is acquitted o n benefit of doubt. Since the appellant is on bail, as stated at the Bar, his ba il bonds shall stand discharged.

16. The appeal stands allowed and disposed of. Return the LCRs.