High Court · 2012

,r they all came home in the scooter of said Shri Nayan Kalita.

4. As they arrived at the PO, Shri Nayan Kalita dropped down both th e accused and deceased at the PO and started proceeding to his house. The moment he started proceeding to his house, he heard the deceased and the accused quarr eling with one another. He also saw both of them grappling each other on the r oad and in that process, the deceased fell down on a road side ditch. Thereafter , the accused fled away from such spot.

5. He came to the PO and retrieved Bhaba Kalita from the ditch, found him in an injured condition and took him in his scooter to the nearby hospital for treatment wherefrom he was subsequently taken to the Guwahati Medical College an d Hospital for better treatment. However, he died there on 22.7.99.

6. An FIR to that effect on being lodged with the Officer-in-charge at Chay gaon Police Station on 17.7.99, police registered a case vide Chaygaon P.S. Cas e No. 113/99 U/s. 341/326 IPC and the incident was ordered to be investigated . Since the accused died in the meantime, the case was converted to a case under U /s. 302 IPC vide order dated 26.7.99 passed by the learned Chief Judicial Magist rate, Kamrup in G.R. Case No. 3203/99.

7. During the course of investigation, the I.O. who was entrusted to invest igate the case, visited the place of occurrence, examined the witnesses well acq uainted with the facts and circumstances of the case and conducted inquest on th e dead body and collected post mortem examination report and on completion of th e investigation, submitted charge sheet U/s. 302 IPC against the accused and for warded him to the court to stand his trial.

8. Since the offence U/s 302 IPC is exclusively triable by a Court of Sessi ons, the learned Magistrate before the charge-sheet was laid , committed the cas The lear e to the Court of the learned Sessions Judge, Kamrup for disposal. ned Sessions Judge, Kamrup after the commitment of the case and after hearing t he learned counsel for the parties, framed charge U/s 302 IPC against the accuse d and the charge, so framed, on being read and explained to him, accused pleade d not guilty and claimed to be tried.

9. During the course of trial, prosecution examined as many as 8(eight) wit nesses including the Doctor and Investigating Officer. The statements of the acc used U/s 313 CrPc were recorded. The accused plea was of total denial. He, howev er, on being required declined to adduce any evidence of his own.

10. The learned Trial Court on conclusion of the trial and upon hearing the learned counsel for the parties held the accused guilty of the offence U/s.324 I PC and convicted him there-under and sentenced to punishment aforesaid. It is t his judgment which has been assailed in the present appeal alleging several infi rmities.

11. Opening up the argument on behalf of the accused/appellant, it has been submitted that judgment, rendered by learned Trial Court suffers from some sever al infirmities. These are as follows:

1. There was no reliable evidence on record to show that th e accused was the person responsible for injuring the victim on the night in que stion at the place of occurrence which ultimately occasioned his death at the G. M.C. & Hospital.

2. The evidence of the Doctor who conducted post mortem examination on the dead body could not render any clear finding with regard to the nature o f the weapon, used and nature of the wounds and above all, the exact cause of de ath of the deceased.

3. Only the eye witness, namely, Sri Nayan Ch. Kalita, PW 1 did not at all supports the prosecution case.

4. 5. There was delay and the delay was not properly explained. The prosecution story as depicted in the FIR is mismatched with the story projected by only eye witness, PW 1. 6. ion of enormous proportion. . The evidence of witnesses, particularly, PW 1 is riddled with contradict

12. According to the learned counsel for the appellant, charge under Section 324 IPC not having been found established on the materials on record, this cour t is duty bound to acquit the accused /appellant on setting aside the judgment i mpugned. He, therefore, urges this court to set aside the judgment impugned.

13. On the other hand, according to the learned Addl P.P. appearing on behal f of the State respondent has contended that the judgment of the learned Trial C ourt was rendered on the basis of well established fact on record having regar d to the laws which hold the field and as such, the same invites no interference from this Court of appeal. The learned Addl. Public Prosecutor, therefore, urge s this court to dismiss the appeal and to affirm the judgment of the learned Tri al Court.

14. I have given my anxious consideration to the arguments advanced by the l earned counsel for the parties having regard to the materials on record. However to appreciate the dispute before me I find it necessary to have a brief review of evidence on record and evidence of Medical Officer who conducted post mortem examination on the dead body is first taken up for consideration.

15. Dr. Kanak Chandra Das was the Medical Officer who conducted the post mo rtem examination on the dead body of the deceased and was examined as PW 5. His evidences are as follows: (cid:28)Dead body found covered by one bed sheet. Eyes partly opened, mouth par tly open. Anus/penis was healthy. Rigormortis present all over the body. Body wa s cold on touch. Injuries (1) One stitched wound( partially healed) present on the fro nt of the abdomen left side. Size 3.5 c.m. long and closed by 3 nos of stitches situated just below the costal margins, 10 c.m. below left nipple and 5 c.m. lef t from midline. The margins of wounds covered by granulation tissues. On opening the abdomen, peritoneum found congested and adherent at different places. Perit oneal cavity contains about 900 ml of brown colour fluidy materials mixed with p us having foul smell (septic peritonitis). (2) One stitched wound (partially healed) present on the dorsum of the right palm including the right thumb, size 6 c.m. long and closed by 10 nos of stitch es. The margins of the wounds are covered by granulation tissues. All other organs were healthy. Stomach congested, mucuse also congested. Patchy haemorrhages are present at places. Opinion :- ribed on the body. Death was due to septic peritonitis as a result of injuries desc

16. PW 5 has proved the post mortem report in respect of aforesaid person as Ext.3. I have carefully perused the evidence of the PW5 in the light of avermen ts made in Ext. 3. It is found there-from that the PW 5 could not render any op inion as to the nature of the injuries sustained by the deceased or as to nature of the weapon used in commission of the offence under scrutiny although accordi ng to him, the death of Bhaba Kalita occurred due to septic peritonitis as a res ult of injuries found on his body.

17. So situated, let us consider the testimony of prime prosecution witness, who is none other than PW 1, Sri Nayan Ch. Kalita. According to him, on 10.7.9 9, he and the deceased Bhaba Kalita was returning from Jonabari in his scooter. On way home, they halted for some time at Kukumara Bazar. They arrived at Kukuma ra Bazar at about 8 p.m. They purchased some house hold articles. The articles s o purchased by the deceased were sent home through the son of his maternal uncle .

18. At that point of time, they found the accused Upamanyu standing in fron t of a stationary shop of one Bharat Das situated in the said market. The decea sed called the accused and enquired him if he was at all interested to go home w ith them. As the accused replied them in affirmative, all of them came home in t he scooter of PW 1. At the PO, the accused and deceased dropped down from his sc ooter. By that time, the accused and deceased, however, started quarrelling was over payment of Rs. 1,500/- .

19. P.W.1 pacified both the deceased and the accused and thereafter he start ed proceeding towards his house. However, little thereafter PW 1 heard an alter cation between the accused and the deceased. Moments later, he saw Bhaba (decea sed) and the accused struggling with one another .Suddenly, the deceased fell do wn in a ditch and the accused too hurriedly left the place of occurrence. He took the victim to the hospital wherefrom he was shifted to G.M.C. & 20. In his cross-examination Hospital. But he died after 12 days of the incident. , PW 1 states that he first took the deceased to the police station and thereaft er he was taken to the G.M.C. & Hospital for better treatment.

21. PW 2, Pulak Kalita is the brother of the deceased. According to him, he learnt from someone that his brother Bhaba Kalita was assaulted by accused Upama nyu. He was, therefore, taken to G.M.C & H, Guwahati for better treatment. While he met the deceased at hospital, he told the PW 2 that he was injured by the ac cused Upamanyu. Accordingly, he lodged an FIR Vide Ext.1. The suggestion that he did not make such statement to the police was denied by PW 2.

22. PW 4 is Pradip Kalita. According to this witness, on the night in questi on, he was sleeping at his own house. Miss Phula Kalita, sister of the deceased, came to him and requested him to make a search for her brother (deceased). Acco rdingly, he came out of his house with a torch in his hand and when he arrived a t ’Tiniali’ situated near the house of Bhaba Kalita, he found some blood on the road. Immediately he rushed to the police station where he found the scooter of PW 1, Nayan Kalita .

23. On an enquiry being made, he came to know that the accused stabbed the deceased on his abdomen and chest and the deceased had, therefore, been shifted to Gobordhan PHC. Thereafter he went to hospital. The deceased was thereafter ta ken to G.M.C. for better treatment. However, he died some time later. He was tol d by the PW1 that the accused assaulted the deceased due to dispute over a loan.

24. PW 7 is Pravat Kalita. According to this witness, on 17.7.99 he was post ed as S.I. of police at Chayagaon P.S. and on that day, the Station House Office r of the said P.S. received an FIR from one Pulak Kalita. Accordingly, PW 7 visi ted the place of occurrence, prepared a sketch map Ext.6 and recorded the statem ent of the witnesses. He stated that he failed to arrest the accused as he absco nded.

25. In the meantime, he came to know that Bhaba Kalita died at the G.M.C. & Hospita. He also states that inquest on the dead body was also done in the G.M.C & Hospital. In his cross examination, he has stated that thePW 2 did not tell h im that the deceased had informed him that the accused assaulted him with a dagg er.

26. PW 3, Sri Udhav Kalita, deposes that he heard about the incident from PW 4, Pradip Kalita who told him that the deceased was assaulted by accused Upaman yu. But he admitted that he did not witness the incident under consideration. PW 6 Sri NabaKanta Barua submitted charge sheet while PW 8 conducted inquest on the dead body which was proved as Ext.5.

27. Above being evidence on record, let us see how far such evidence makes o ut the allegation brought against the accused person. I have already found that though the Medical Officer is found to have stated that the death was due to sep tic peritonitis as a result of injuries found on the body of the deceased, yet, his evidence could not throw any light as to the nature of the wound, gravity th ereof and weapon used in committing such wound. It is in those backdrops, let us consider the evidence of other witness 28. es, more particularly, PW 1, Sri Nayan Ch. Kalita. PW 1, in his evidence, has st ated that on the fateful night, he along with the accused and deceased came fro m Kukurmara Bazar at about 8.30.P.M. Once they reached the place of occurrence, the accused and the deceased got down from his scooter. It is also in his eviden ce that it was the deceased who invited the accused to accompany them from Kukur mara Bazar to their houses in the scooter of the PW1 on the night aforesaid.

29. But moments later, the accused and deceased got involved in a quarrel over payment of loan. He (PW 1) also saw them grappled with each other and saw the deceased falling down in a road side ditch. He immediately came to the plac e of occurrence and helped the deceased coming out of the ditch. In the meantime , the accused fled from such place.

30. The above evidence of PW 1, however, could not at all show as to how th e deceased got injured on the night aforesaid. In other words, how the deceased got injured remained almost unclear, more so, when PW 1 did not utter any word a bout the accused being armed with any weapon at that point of time, much less hi s attacking the deceased at the place of occurrence on the night 10.7.99 with an y kind of instrument. Here it is worth noting that in his evidence, PW2 has stated that the de 31. ceased told him that the accused had attacked him at the place of occurrence on the night in question with a dagger. But the I.O. confirms that while being exam ined under Section 161 Cr.PC, did not tell him that the deceased tell him that h e was attacked and injured by the accused person. This only shows that claim of the PW 2 that he came to know about the accused being assailant of the deceased from the deceased himself cannot be accepted without much grain of salt. PW 4 deposes that he came to know about the alleged incident from PW1. B 32. ut PW1 did not utter a word that he made such a statement to any one, much less to the PW4. On the other hand, PW3 deposes that he came to know about accused be ing the assailant of the deceased from PW2 .But we have already found that such a claim of the PW2 is found quite unacceptable. Our foregoing discussion has mad e such position very clear. Thus, the evidence rendered by PW3 and PW4 could ren der no help in propping up of the prosecution case.

33. It is also the claim of the prosecution, as stated in the FIR that the accu sed attacked the deceased at the place of occurrence on the night in question wi th a dagger. If one is to believe the statement made in the FIR, but there was n o effort whatsoever from the side of investigating officer to seize the aforesai d dagger, though accused was arrested during the course of investigation. Inabil ity of the IO to recovery the weapon of offence in the facts and circumstances of the case under consideration , has again raised a serious doubt about the ver acity of the claim of the prosecution that on the night in question, the accuse d attacked and injured the deceased at the place of occurrence which ultimately occasioned his death. I have found that as per prosecution story, so emerged from the FIR, on 34. the night in question the accused subjected the deceased to multiple wounds whic h were inflicted by dagger. But the story as narrated in the FIR did not find fu ll corroboration from the evidence rendered by Doctor. What is more , the only eye witness to the incident did not at all support the prosecution case since th e PW 1 had stated that he only saw the deceased and accused grappled with one a nother on the road and in that process, the deceased fell down on the road side ditch only to be retrieved by him moments later.

35. I have found that there was delay in lodging the case. Such delay ought to have been explained by the prosecution, more so in view of allegation made in the FIR since there is allegation that the accused voluntarily subjected the de ceased to multiple injuries and that too by a weapon as dangerous as dagger .But I am constrained to hold that despite there being delay in lodging the case, un der scrutiny, same was not properly explained casting once again a doubt on the prosecution case. . In view of above discussion, I am constrained to hold that the prosecuti 36. on could not establish that on the night in question the accused had voluntarily caused hurt the deceased with dagger beyond all doubts. Being so, I am to hold that prosecution could not make out the charge U/s 324 IPC and as such, the judg ment rendered by the Trial Court is found unsustainable in law.

37. g aside the judgment impugned. In the result, the accused is acquitted of offence U/s 324 IPC on settin

38. liberty forthwith if he is not required in connection with any other case. Consequently, the appeal is allowed and the accused/appellant is set at