High Court · 2012

Having, however, found the present appellants guilty of the offe 5. nce, which they stood charged with, the learned trial Court convicted them accor dingly and passed sentence against them as mentioned above. Hence, this appeal. The remaining four accused persons namely Sunil Bordoloi, Nandi Bordoloi, Babul i Raja and Tankeswar Bordoloi were held not guilty and accordingly acquitted. Ho wever, three of the accused, namely, Bogabop Bordoloi, Jayanta Bordoloi and Gane sh Bordoloi have remained absconded.

6. amar, learned Public Prosecutor, Assam. We have heard Mrs. A. Sarma, learned Amicus Curiae, and Mr. Z. K

7. Before dealing with the occular evidence on record, let us, firs t, scrutinize the medical evidence adduced by the prosecution. In this regard, i t is noteworthy that it was Dr Mukul Bora (PW 10), who had, admittedly, conducte d the post mortem examination on 30.12.2003. The post mortem report has been pr oved as Ext. 3. From the post mortem report, it transpires that the doctor found on the dead body of Prabin Deka, as follows : (cid:28)Condition of subject stout emaciated, decomposed etc : A male dead body of ave rage built approx. 50 yrs. of age lying in the P.M. Examination hall. The mouth is partially open & eyes are partially closed. Rigor mortis present. The lacerated injury is seen in & above the rt. Eye lid (2 cm x ‰ cm). Abrasion seen over the chest (Lt) & & & & & & Fracture of the skull bone occipital on the left side. Haematoma on the left side of the back of the skull & underlying fracture. Membrane torn on the back of skull in the left side. Haemorrhage on the occipital lobe of brain clots present. Fracture of the 9th, 10th, 11th & 12th ribs of left side. Left Lung :Laceration of the left lung haemorrhage ; clots present. Muscles, Bones and Joints Injury : Fracture of the 9th, 10th, 11th & 12th ribs of left side. Fracture of occipital bone on the left side.

1. Fracture of skull bone occipital on the left side.

2. Fracture of the 9th, 10th, 11th & 12th ribs on the left side of the chest wall.

3. Rupture of the spleen & & & splenic artery. All injuries are ante mortem.

8. In the opinion of the doctor, the injuries were ante mortem and homicidal in nature and the death was caused due to shock and hemorrhage follo wing the head injury and injuries to organs like rupture of spleen and fracture of chest wall with 9th, 10th, 11th and 12th ribs having sustained fracture. The defence has not disputed the findings and the opinion given by the doctor. We, too, do not see any reason to disbelieve or discard the findings of the doctor a nd his opinion with regard to cause of death. The medical evidence on record, th us shows, that Prabin Deka succumbed to injuries, as described above, his death being homicidal in nature.

9. Out of a large number of witnesses, who have been examined by th e prosecution, PW 5, PW 6, PW 11 and PW 12 including PW 13, who is an Investigat ing Officer, are relevant and important.

10. As far as PW 5 is concerned, he is son of the deceased and his e vidence is that when he reached home, he was told by his family members that his father had been taken away forcibly by accused Sonaram, Binguti Bordoloi, Bogab up and Bedala Bordoloi and he accordingly informed the police.

11. What is, however, of great importance to note, in the evidence o f PW 5, is that his evidence does not disclose that PW 9, (Prabha Deka) had info rmed PW 5 about the fact that father of PW 5, Prabin Deka,had been forcibly take n away by the persons, whose names have been mentioned by PW 5. Thus, the eviden ce of PW 5 is nothing, but hearsay and we keep his evidence excluded from the pu rview of our consideration.

12. PW 6 (Aimani Deka) is daughter of the said deceased, who has bee n treated as the informant of the case inasmuch as the written information, as r egards the abduction of her father, Prabin Deka, was lodged by PW 6. Her evidenc e is to the effect that on the day of occurrence, at about 7 P.M., when she went to the mill, situated near her house, to call her father for dinner, she saw ac cused Bogabop, Binguti Bedala, Sonaram @ Sona and some others forcibly taking a way her father, whereupon she raised hue and cry and her uncle, Sonaram Deka, we nt to the police station taking an Ejahar from her and, later on, she came to kn ow that the dead body of her father was found lying on the path. However, the Ej ahar, which PW 6 had lodged, shows that the Ejahar made allegation not only of a bduction, but also of her father’s dead body having been found at Paghali Charia li. Coming to the evidence of PW 11, we notice that according to him 13. , on the day of occurrence, at about 7.30 P.M., when he was in his house, he hea rd hulla, he came out and found accused Bogabop confining Prabin Deka. PW 11 fur ther clarifies that he did not see any one along with Bogabop. Though the prosec ution has successfully proved that in his previous statement given to the police , PW 11 had named, apart from accused Bogabop, one Naren Bordoloi as persons, wh om he had seen taking away Prabin Deka, what is important to note is that the ev idence of PW 11 does not indicate any of the present appellants had been seen ta king away Prabin Deka.

14. So far as PW 12 is concerned, his evidence is that at the time o f occurrence, he was working along with Prabin Deka and one Soonsing, in the saw mill belonging to one Bhuban Deka and at that time, accused Bogabop and Jayanta came to the mill, caught hold of Prabin Deka and took him away. It is in the ev idence of PW 11 that though he resisted the taking away of Prabin Deka, he was i ntimidated and he, therefore, informed the family members of Prabin Deka about P rabin Deka having been taken away by the two accused aforementioned and, on the following day, Prabin Deka’s dead body was found on the road.

15. Two important aspects, which emerge from the evidence of PW 12, are that even this witness evidence do not implicate any of the present three ap pellants. That apart, the evidence of PW 12 belies the evidence of PW 6 inasmuch as PW 12 claims that he was the one, who had informed the family members of Pra bin Deka about Prabin Deka having been forcibly taken away from the saw mill, wh ereas PW 6 claims to have seen her father, Prabin Deka, being forcibly taken awa y.

16. At any rate, the evidence of PW 6, in the light of evidence of P W 11 and PW 12, cannot be confidently relied upon and her evidence could not hav e been safely made foundation for conviction of the three accused-appellants.

17. Having given our anxious consideration to the evidence on record , as a whole, we are firmly of the view that the present three appellants ought to have been accorded, at least, benefit of doubt, by the learned Court below.

18. In the result and for the reasons discussed above, this appeal s ucceeds. The conviction of the accused-appellants and the sentence passed agains t them by the impugned judgment and order are hereby set aside. All the three ac cused-appellants are hereby held not guilty of the offence, which they stood cha rged with, and they are acquitted of the same under benefit of doubt.

19. nless they are required to be detained in connection with any other case. Let the present three appellants be set at liberty, forthwith, u

20. or the valuable assistance rendered to the Court. Let a sum of Rs. 5,000/- be paid to the learned Amicus Curiae f

21. Send back the LCR.