Judgment · High Court · 2012

We have heard Mr. B Chakraborty, learned Amicus Curiae for the a

#02. ccused-appellants and Mr. D Das, learned Additional Public Prosecutor, Assam. The prosecution case is traceable to the FIR dated 15.08.2001, l 03. odged by one Munnalal Rabidas with the Officer-in-Charge of Patharkandi Police S tation to the effect that he had been, on 11.08.2001, informed by Smti. Fulkumar i, the wife of Rabilal Lohar that the accused-appellants had, on 10.08.2001, in the evening, assaulted the latter (Rabilal Lohar), for which, he had to be admit ted in the Tea Garden Hospital. The FIR further disclosed that on that date i.e. 15.08.2001, the informant had been intimated that the injured had succumbed to the injuries sustained. The informant stated that as the wife of the deceased wa s sick, the information about the incident of assault and death was being lodged by him. On the FIR, Patharkandi P.S. Case No. 182/2001, under section 302 of the IPC was registered, and on the completion of the investigation that followed, the accus ed-appellants along with one Rabi Balmiki were charge sheeted. The learned trial court framed charges against the chargesheeted persons under section 302 read w ith section 34 of the IPC. The accused-appellants having pleaded (cid:28)not guilty (cid:29) th ey were tried, in course whereof, the prosecution examined nine witnesses, inclu ding the Investigating Officer and the Doctor, who had performed the post mortem examination. The accused-appellants were, thereafter examined under section 313 Cr.P.C, following which, they examined two witnesses in defence. Sri Rabi Balmi ki meanwhile expired. The impugned judgment and order followed.

#04. The learned Amicus Curiae has emphatically argued that none of t he prosecution witnesses having been able to narrate the incident consistently v is-a-vis the essential aspects thereof, the charge levelled against the accused- appellants had remained unproved and, therefore, they are entitled to be acquitt ed. According to Mr. Chakrabroty, the evidence of PW 2, 5 & 6, on which the pros ecution seeks to rely being contradictory on materials particulars, the learned court below fell in gross error in recording the finding of conviction against t he accused-appellants. The learned Amicus Curiae further urged that the alleged disclosures made by the deceased to PW Nos. 2 & 6 about the identity of the assa ilants are unclear, unintelligible and untrustworthy and, thus are liable to be discarded. According to him, the evidence of PW 5 is irreconcilable on vital asp ects, thus rendering the same non est in law. Moreover, the injuries stated to h ave been found on the dead body are not at all compatible with the assaults said to have made on the deceased, thus rendering the prosecution case unworthy on a ny credit, he urged. Mr. Das, in reply has submitted that the evidence of the prosecu 05. tion witnesses taken as a whole amply established the charge and, thus no interf erence with the impugned judgment and order is called for. The learned Public Pr osecutor, Assam laid particular emphasis on the testimony of PW Nos. 2 & 6 to co ntend that the same clinches the issue in favour of the prosecution. That as FIR was lodged after the death of the injured, there was no scope for the police to have a written dying declaration recorded and, therefore, such an omission is n ot fatal for the prosecution, was emphasized as well. According to him, PW 5 is an independent witness and he having witnessed the incident, the conviction of t he accused-appellants, on the basis of his evidence alone is permissible in law.

#06. xpedient to briefly survey the evidence on record. To appropriately appreciate the rival submissions, it would be e

#07. PW 1, Sri Munnalal Rabidas, the informant, in substance, reitera ted the version in the FIR. He, thus is a reported witness. He, however, proved the FIR, Ext. 1.

#08. PW 2, Fulkumari, the wife of the deceased, deposed on oath that on the date of the occurrence, he (deceased) had gone to the house of the accuse d-appellant, Roma Kurmi to bring their son, Raju, who was in his employment. She stated that as her husband reached the house of Roma Kurmi, he along with the a ccused-appellant, Kailash @ Pandav Kurmi and Rabidas Balmiki (since deceased) st arted assaulting him and, thereafter, brought him back to her house. As the cond ition of the injured was serious, he (injured) was removed to the Civil Hospital via the Garden Hospital, but he expired on the way. In cross-examination, this witness, disclosed that the deceased, while referring to his injured condition, mentioned the names of the accused-appellants and Rab i Balmiki. She stated to have informed the panchayat office as well of the incid ent.

#09. ary did not throw any light on the identity of the assailants. PW 3, Bansidhar Goala, a garden employee and then the VDP Secret PW 4, Sri Raju Lohar, the son of the deceased, deposed that on t 10. he date of the occurrence, he returned home at about 11.00 p.m. and was told by his mother (PW 2) that the accused-appellants and Rabi Balmiki (since deceased) had assaulted his father in the house of accused-appellant, Roma Kurmi, whereaft er, they (assailants) brought him back. In cross-examination, this witness admit ted to have found his father lying.

#11. PW 5, Sri Manaranjan Baidya testified to have met with the decea sed at the market before the incident, whereafter, the latter went to the house of Roma Kurmi. He stated that an altercation followed between the two, seeing wh ich, he (witness) went to call Ranjit Munda. According to this witness, when he returned with Ranjit Munda, he found that (cid:28)marpit (cid:29) had started. He identified Ra bi Balmiki and Pandav @ Kailash to be the assailants. The witness then claimed t o have retrieved the injured and reached him to his house and informed his wife PW 2 about the incident. In cross-examination, this witness, noticeably, stated that the assault had take n in the house of Rabi Balmiki.

#12. PW 6, Ram Mohan Kurmi deposed that on the date of the occurrenc e, he having visited the house of the deceased, the latter told him that he had been assaulted by the accused-appellants and Rabi Balmiki.

#13. PW 7, Sri Lakhi Charan Lohar, the younger brother of the decease d is a reported witness qua the incident. He, however, claimed to have seen inju ries on the dead body. PW 8, Dr. Partha Sarathi Deb, who had performed the autopsy on t

#14. he dead body, detected the following injuries on the dead body: - (cid:28)1. Multiple bruising injuries diffusely present all over front of chest wall an d lower abdomen of about 1/2 (cid:29) x 1’ in size (each) - rupturing the adjoining subc utaneous blood vessels of the chest region and chest wall. 2. Multiple bruises showing parallel lines extensively present almost all over b ack. 3. Two contusions rounded in appearance with underneath blackish haemotoma prese nt over both the loin areas of the back each about 2 (cid:29) x 2 1/2 (cid:29) in size. (cid:29) According to him, death was due to shock and haemorrhage resulting from the inju ries sustained. He denied the suggestion of the defence that the injuries were s imple in nature.

#15. Sri Anawar Hussain Choudhury, SI of Patharkandi Police Station b rought on record the steps taken in connection with the investigation of the cas e.

#16. Though, the defence examined two witnesses, namely, Sri Janardha n Rabidas and Milan Kanti Dhar, their testimony is not of much significance and, therefore, no elaboration is called for. On an analysis of the evidence adduced by the prosecution, in ou 17. r view, the testimony of PW 2, 5 & 6 vis-a-vis the actual incident is only of re quired relevance. Admittedly, the Investigating Officer did not get an opportuni ty of recording the dying declaration of the deceased as it is obvious that the FIR was lodged only after the death of the injured. The evidence of PW 2, who ad mittedly is not an eye-witness, is not very clear with regard to the disclosures made by the deceased to her about the complicity of the accused-appellants in t he offence. Her endeavour to involve the accused-appellant, Kailash @ Pandav Kur mi is in departure from the version made in the FIR qua the assailants, his name not having been mentioned therein. In comparison, the evidence of PW 6 vis-a-vi s, the disclosure made by the deceased is more intelligible. The testimony of PW 5 has to be accepted with the grain of salt as the same when read as a whole, r enders the place of occurrence doubtful. His version of retrieving the deceased from the accused-appellants and to bring him back to his house along with Ranjit Munda is also inconsistent with the testimony of PW 2 in this regard. Having regard to the uncompromising legal precepts for a dying d 18. eclaration of a decisive probative worth, we are constrained to hold that, on a cumulative reading of the evidence of PW 2, 5 & 6 that the prosecution has not b een able to establish the charge against the accused-appellants beyond all reaso nable doubt. Though, the version of PW 1 and the injuries noticed on the dead bo dy may lend some support to the manner of assault allegedly unleashed by the acc used-appellants on the deceased, the same, per se, having regard to the rigour o f proof mandated by law to establish the culpability of an accused standing tria l vis-a-vis the charge levelled against him, we are of the unhesitant opinion th at, in the singular facts and circumstances of the case, as well as, considering the state of evidence on record, the accused-appellants are entitled to a benef it of doubt. In view of the evidence on record that, on being injured, the decea sed was in a serious condition, his stray statement of inculpating the appellant s as his assailants in absence of convincing corroborative evidence, cannot be t he sole basis of their conviction. In the above view of the matter, the impugned judgment and order is interfered w ith. The accused-appellants are, ordered to be released forthwith, if not wanted in any other case.

#19. Before we part, we wish to record our appreciation for the assis tance rendered by Mr. Biswajit Chakraborty, the learned Amicus Curiae in this ap peal and hereby order payment of Rs. 5000/- (Rupees five thousand only), as his professional fee to be disbursed by the Assam State Legal Services Authority, Gu wahati.