High Court
Case Details
Crl.A. 184/2005 BEFORE THE HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH
Legal Reasoning
(Indira Shah,J.) 1. This appeal has been preferred against the judgment and order dated 05.0 8.2005 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 97 (JJ) of 2004 whereby the accused appellants, namely, Sri Mohan Bora and Sri Nirmal B ora have been convicted under Section 323 IPC and the legality and veracity of t he judgment has been challenged in this appeal. 2. The prosecution case in brief is that on 17.08.2003 at about 11/12 noon, Jun Bora (deceased) noticed that some of the trees on his house compound had be en cut. He also saw Mamu and asked him who cut the trees and thereafter there wa s altercation between Jun Bora and Mammu. The accused Bhaskar Bora, Mohan Bora, Nirmal Bora assaulted Jun Bora by means of a bamboo lathi. Jun (deceased) sustai ned serious injuries on his head and went to the house of his brother Ramesh (P. W.9). Jun (deceased) left the house of Ramesh at about 7 p.m. and did not return home in the night. Next day morning mother of the deceased Smt. Akoman Bora (P. W.1) received information that her son Jun Bora has committed suicide by hanging himself with a tree. She lodged the FIR on 05.11.2003 wherein she alledged that due to assault inflicted by Nirmal Bora and Mohan Bora, her son committed suici de. On the basis of the said FIR, a police case was registered as Teok P.S. Case No. 150/03 under Section 306 IPC. On completion of investigation, police submit ted the charge sheet against the accused persons, namely, Mohan Bora, Vaskar Bor a, Rupeswar Bora and Nirmal Bora under Section 306 IPC. 3. Learned Trial Court framed charges under Section 323 & 306 IPC agsint th e accused persons to which they pleaded not guilty and claimed to be tried. Alto gether 12 witnesses were examined by the prosecution in support of their case. T he accused persons in their statement, recorded under Section 313 Cr.PC, denied the allegations levelled against them and pleaded that they were innocent. They did not adduce any defence evidence. On conclusion of the trial the learned Sessions Judge, Jorhat while acquitting t he accused persons for the charge framed against them under Section 306 IPC conv icted the accused appellants, namely, Mohan Bora, Nirmal Bora, under Section 323 IPC. The other two accused, namely, Rupeswer Bora and Bhaskar Bora were acquit ted and set at liberty. The accused appellants were sentenced to undergo simple imprisonment for two months for their conviction under Section 323 IPC. 4.
Legal Reasoning
Heard Mr. A. Lal, learned Amicus Curie. Also heard Mr. K. Munir, learned Addl. Public Prosecutor, Assam. Akonman Bora (P.W. 1) the informant deposed that there was altercation b 5. etween June Bora (deceased) and Bhaskar. The accused Nirmal Bora assaulted the v ictim by means of a bamboo lathi. The victim June sustained bleeding injury on h is head. Corroborating the evidence of Akonman Bora (P.W. 1), Ramesh Bora (P.W. 9, borther of the deceased) stated that when Jun Bora came to his house, he saw three haematomas on his head. Akonman Bora (P. W. 1) stated that after the incid ent, she sent the victim to call Gaon Bura. However, the victim did not return. The next day she came to know that her son has committed suicide. She admitted i n her cross-examination that she lodged FIR after four months of that incident. 6. Rumi Bora (P.W.2) is cousin of the deceased. She deposed that she saw th e accused persons assaulting the deceased by means of a bamboo stick. In her cro ss-examination she admitted that she did not state before the police that she sa w the incident. 7. The deceased was nephew of Rajen Bora (P.W. 3). She also claimed that sh e witnessed the occurrence and that the deceased was assaulted by the accused pe rsons by means of a bamboo lathi. She admitted in her cross-examination that she did not state before the police that she saw the accused persons assaulting the deceased. Dhani Bora (P.W. 4) is a reported witness. He did not see the occurre nce. Golap Boruah, (P.W. 7) did not support the prosecution case. He was declare d a hostile by the prosecution. Ratul Borua (P.W.8) saw the dead body of the dec eased hanging with a tree. Evidence of the Krishna Bora (P.W.10) is hearsay. Mot her of the deceased told him that the deceased is missing and thereafter the dea d body of the deceased was recovered. Ajit Bora (P.W.11) is witness to the inque st on the dead body. P. W. 12 is the Investigating Officer. 8. The doctor (P.W.5) who conducted the post mortum examination on the dead body of the deceased was not examined by the prosecution. However, from the pos t-mortem report available with the case record it appears that the cause of deat h of the deceased was due to asphyxia as a result of ante-mortem hanging. The do ctor found no external injury on the body of the deceased. In the inquest report also no injury on any part of the body of the deceased was found except the lig ature mark on neck. The evidence of the Akonman Bora (P.W.1) and Ramesh Bora (P. W.9) to the effect that the deceased sustained head injuries is contrary to the post-mortem report as well as inquest report. Moreover, the FIR was lodged after four months of the incident. The delay in loding the FIR was not explained by t he prosecution. The witnesses, who alledged that they saw the accused persons in flicting injuries on the deceased, are all interested witnenesses. Evidence of P W.1 is contrary to the evidence adduced by P.W.1, as regards the nature of injur y sustained by the deceased. P.W.1 is stated that the deceased sustained bleedin g injury on his head, his head was cracked, where as P.W.9 saw three haematomas on the head of the deceased. Their evidences are not at all corroborated by the post-mortem report or inquest report. 9. In the sighted case Anil Phukan Vs. State of Assam, 2005 (4) GLT 517. Th is Court relying on the case of Muluwa, son of Binda & Others vs State of Madhya Pradesh, (1976) 1 SCC 37, the evidence of an infirm witness does not become rel iable, mainly because it has been corroborated by a number of witnesses of the s ame brand, for, evidence is to be weighed not counted. 10. Here in this case also the evidence of P.W.1, 2, 3 & 9, who alledged tha t the accused persons assaulted the deceased, cannot become reliable only on the gournd that they have given stario type and similar description of the alledged occurrence. Their evidence is contrary to each other on material point and tota lly against the findings of the doctor and witnesses to the inquest. 11. In the sited case of Ram Narain, Jaggar Singh and Others vs. State of Pu njab, AIR 1975 SC 1727, it was observed that where the direct evidences is not s upported by the expert evidence, then the evidence is wanting in the most import ant part of the prosecution case and it would be difficult to convict accused on the basis of such evidence. 12. What cristylising from the above description is that the evidene of P.W. 1, 2, 3 & 9 do not inspire confidence because their evidence is contrary on mate rial point and against the findings of the doctor as well as witnesses to the in quest. There is unexplained delay in lodging the FIR which is also fatal to the prosecution in this case. The prosecution has failed to bring home the charge fr amed against the acused appellants and the acused persons deserve acquittal at l east on benefit of doubt. 13. For the reasons discussed above, this appeal succeeds. The conviction of the accused appellants and the sentence passed against them are hereby set aside. T he accused appellants are acquitted from the charge framed against them under Se ction 323 IPC on benefit of doubt. 14. Send down the LCRs along with a copy of the Judgment.