Judgment · High Court · 2012

The prosecution case in brief, is that on 12.12.96 at about 12-10 PM the accused Jehirul Islam had an altercation with the deceased Haren Kalita reg arding cinema tickets in black. Jehirul assaulted Haren Kalita and thereafter, Haren fell down on the ground. FIR being lodged by one of the friend of Haren Ka lita who was also selling cinema ticket in black, police registered a case u/s 3 02 IPC and on completion of investigation police submitted charge-sheet against the accused under the aforesaid Section of law.

#4. ction 302 IPC and claimed to be tried. The accused pleaded not guilty to the charge framed against him under Se

#5. During the trial, prosecution examined as many as four witnesses includi ng the doctor and the investigating officer. Evidence of one witness was adduced on behalf of the accused. The accused in his statement, recorded u/s 313 Cr.P.C denied the allegation levelled against him and pleaded that he is innocent. On conclusion of trial, the learned trial court convicted the accused and sentenced him as stated above. PW 1, Dr.Kanak Chandra Das who held post-mortem examination on the dead

#6. body of the deceased Haren Kalita on 12.12.96 found as follows : (cid:28)1. One abrasion present on the dorsum of the right foot, size 1.5 cm 1 cm 3 c m provisional to the base of the right little toe and 6 cm from right lateral m idlines. Red colour. 2. One abrasion present on anterior surface of the right knee joint over the patella, size-2 cm x 1 cm (red colour).

#3. One contusion present on right side of the anterior chest wall size - 3 c m x 3 cm x intercostals muscle deep, situated 2 cm right from midline and 6 cm a bove and medial from right nipple ( red in colour ). Heart- enlarged. Wt. About 400 grams both side of the heart fulled blood. Petuc hial haemorrhage present on the base of the heart and interventricular septum. M yocardium thickened. Cavity of the heart becomes narrowed. Atheromatus plagues are present on both coronary sinuses. Lumen of the coronary arterics- narrowed by othero selerotic changes. Anterior interventricular branch of the left coron ary artery is completely occuluded by the clotted blood and plucticiaus mater ials . On myocardium- 2 cm x 2 cm area, 2 cm above the apex of the heart is s urrounded by hyperaemic zone. Opinion- Death was due to chronic coronary insufficiency. Injuries were ante-mor tem and caused by blunt force impacts. (cid:29) In cross examination the doctor admitted that the death may be caused by homicidal or the injuries may be caused by fall with sufficient force. PW 2 Narayan Sarma deposed that he had been selling cinema ticket in bl 7. ack market . He knows the accused Haren Kalita who was also selling cinema ticke t in black. The deceased was driver of the cinema hall owner. On the date of occ urrence, when the deceased asked him whether he needed cinema ticket, the driver abused him and thereafter there was an altercation between the deceased and the accused Jehirul. The accused inflicted blow on Haren Kalita. The deceased fell down on pucca floor of veranda and could not speak. The deceased was immediatel y removed to the hospital. The police arrived at the place of occurrence and wro te ejahar . PW 2 put his LTI on the ejahar and thereafter, police prepared inque st on the dead body in presence of PW 2 . In his cross-examination, PW 2 admitte d that there were about 50 persons present at the place of occurrence. There was a betel nut shop near the place of occurrence. The people gathered there saw th e occurrence. He further stated that he witnessed the incident from a distance o f several feet while he was sitting on a scooter. He admitted that he did not st ate before the police that the deceased asked the driver of the cinema hall if h e needed ticket. But he did not state in his statement recorded u/s 164 Cr.P.C. that on his part of the deceased, inflicted fist blow. He reiterated that there was 40 to 50 person at the place of occurrence who saw the incident.

#8. id not support the prosecution at all. PW 3 Md Akhtar Hussain who was declared hostile in the prosecution. He d

#9. PW 4 is the Investigating Officer. On being receipt of FIR, he entered i nformation in general diary and forwarded the same to the Officer-in-Charge, Pan bazar Police Station for registering the case. He visited the place of occurrenc e and he sent the dead body for post mortem examination. He denied that the LTI of the informant was obtained in his presence.

#10. From the evidence of the doctor, it appears that the death of the deceas ed was due to chronic coronary insufficiency. According to the doctor the injuri es were ante-mortem and caused by blunt force impacts. Simultaneously, the docto r admitted that such injury may be caused by fall. The only witness who has supp orted the prosecution case is PW 2. From his evidence it appears that the incide nt was witnessed by 40 to 50 persons. There was also one betel nut shop near the place of occurrence. But those witnesses were not examined by the prosecution. PW 3 has not supported the prosecution case. The defence witness Manjur Hussain deposed that the accused was working the Electrical works inside the Hall. At t he relevant time a big crowd gathered inside the Hall and they were proceeding t o collect ticket .The deceased was selling cinema ticket in black. Suddenly the deceased fell down and he lost his sense and later on he heard that he died .

#11. was not homicidal , it was due to coronary insufficiency . From the aforesaid evidence, it is clear that the death of the deceased Learned trial court observed that the accused Jehirul Islam inflicted 12. fist blows on the vital part of the deceased and he sustained injuries over his body. But the learned trial court believed the evidence of PW 2 and held that it was the accused who assaulted the deceased. The learned trial court discarded the evidence of defence witness. In a cited case, in the case of Jarnail Singh Vs.State of Punjab report

#13. ed in (2009) 3 SCC 391, it was held that: (cid:28)25. Presence of PW 7 at the spot at that point of time was also providentia l and he has been examined only as a chance witness. The other alleged eyewitn ess, namely, Chanan Singh, Member of Panchayat of Village Kasiana was not exa mined at all on the ground that he was won over by the accused. Manjit Singh, Sarpanch who is stated to be the last and third eyewitness turned hostile. There fore, out of the three eyewitnesses one has become hostile whereas the other was not examined at all by the prosecution and we have only one eyewitness, PW 7, w ho happens to be the brother of the deceased. If his evidence is discarded there is no other evidence on the basis of which the accused could be convicted.

#26. It is no doubt true that conviction could be based on the sole testimony of a solitary eyewitness but in order to be the basis of conviction his presence a t the place of occurrence has to be natural and his testimony should be strong a nd reliable and free from any blemish. (cid:29) In the instant case, PW 2 was also selling cinema ticket in black alongw 14. ith the deceased. His evidence is not supported by PW 3. No doubt that the evide nce of sole witness can be relied upon in appropriate case. It is apparent from the evidence of PW 2 that the incident was witnessed by 4o to 50 persons. There was also a betel nut shop near the place of occurrence. The Investigating Offic er did not examined the material witnesses .The evidence of PW 2 was that he saw the incident from a distance of several feets sitting on a scooter. There is r ebuttal evidence adduced by D.W.1. The incident occurred when the deceased was s elling cinema tickets in black. The informant and sole witness, who was also inv olved in selling cinema tickets in black states that sitting on scooter he witne ssed the occurrence. Admittedly, there were others who witnessed the occurrence. The D.W.1 deposed that the accused not present at the site of occurrence. The re is no reason to discard the defence evidence.

#14. In view of the circumstances discussed above, I find that the prosecuti on failed to prove his case against the accused beyond all reasonable doubt . I do not find it appropriate to convict the accused person relying on the soli tary evidence of PW 2.

#15. In the result, judgment and order passed by the learned trial court is s et aside. The accused is acquitted and set at liberty forthwith. It is stated th at the appellant has been on bail and as such, the bail bond so furnished by him stand discharged.

#16. Send down the LCR alongwith a copy of the judgment.