High Court · 2012

Being aggrieved by and dissatisfied with by the aforesaid judgment, the accused appellant preferred his appeal on the grounds stated in the name of app eal. 3. The prosecution case in brief is that on 14.03.2005,one Cheniram Rabi Da s of Santipur village within the jurisdiction of Titabar Police Station lodged a n FIR with the with police alleging that on 13.03.2005 at about 5.30p.m., the ac cused-appellant, Anil Rabi Das assaulted one Milan Rabi Das as a result of which , he sustained injury and was admitted at Tipomia Hospital. However, he succumbe d to the injury on 14th March/ 2005. 4. Receiving the aforesaid FIR, Police register a case vide Titabar Police Station Case No. 34/2004 under Section 302 IPC. Having registered the case as af oresaid, Police started investigating the allegation and on completion of invest igation, the charge sheet under Section 447/302 of IPC was laid before the Magis trate requesting him to take appropriate action against the accused aforesaid. Since the offence under Section 302 IPC is exclusively triable by the Co 5. urt of Sessions, the case was committed to the Court of Session at Jorhat. On th e appearance of the accused person and after hearing the parties, charges under Section 447/302 IPC were framed. Charges, so farmed, on being read over and exp lained to the accused person, he pleaded not guilty and claimed to be tried. 6. During trial, the prosecution has examined as many as six witnesses incl uding the wife of the informant, Executive Magistrate who performed the inquest on the dead body, Medical Officer who had conducted autopsy of the body of the p erson aforesaid. The statement of the accused person und3er Section 313 Cr. P.C. were recorded where the accused set up the plea of total denial. However, on be ing required, he declined to adduce any evidence. 7. After hearing the counsel of the prosecution and defence and on going th rough the materials on record, the learned Trial Court convicted the accused-app ellant under Section 447/302 IPC and sentenced him to punishment as aforesaid. I t is that judgment which has been assailed here in this appeal. 8. The learned amicus curies appearing for the accused appellant has conten ded that the judgment of the Trial Court is unsustainable in law as it suffers f rom several infirmities. They are (1) there was delay in lodging the case and su ch delay remains unexplained, (2) there is material contradictions between the s tory told in the court by PW-3 and the story projected in the FIR and (3) one of the most vital witness namely Smt. Ila Robi Das (PW-4) turned hostile refusing to support the prosecution case. 9. The learned Trial Court ignored all those serious infirmities in the pro secution case and convicted the accused appellant as aforesaid and punished him as well. The learned Amicus curies, therefore, urges this Court to overturn the judgment of the Trial Court on acquitting the accused person of the offences he was held guilty and convicted of. 10. On the other hand, the learned Public Prosecutor, Sri Z. Kamar appearing for the State has controverted the argument so advanced from the side of accuse d-appellant contending that there is clinching evidence on record to show that t he accused appellant had committed the offences he was charged with and as such learned Public Prosecutor submits this Court to affirm the judgment of the Trial Court.

11. I have heard the learned counsel for the appellant and learned Public Pr osecutor having regard to the materials on record. On such an exercise, I have f ound that to appreciate the dispute before us, it is necessary to reproduce the evidence of the prosecution witnesses. But before I could do that I fine it nece ssary to reproduce the evidence of the doctor who perform autopsy on the body of the deceased. Dr. Prafulla Kr. Nath (PW-2) who performed the autopsy on the dead body 12. aforesaid has stated that on 15.03.2005, he was posted at Jorhat Civil Hospital . On that day, he conducted post mortem examination of the dead body of one Mila n Robi Das and found following:- WONDS: POSITION, SIZE AND CHARACTER There was abrasion over the left leg below the knee in front. There was also an abrasion over left side of the chest below the nipple. There was a haema toma on right upper abdomen below the costal margin. LIVER There was repture of liver of right lobe below the abdominal wall. The rupture i s about 1 (cid:29) in length. Liver is pale. ABDOMEN There was a haematoma of about 1 ‰ (cid:29) x 1 ‰ (cid:29) in size below the right costal margin . MORE DETAILED DESCRIPTION OF INJURY OR DISEASE There was abrasion in front of left side of chest below the nipple. There was ab rasion below the knee over left leg of about 1 (cid:29) x 1 (cid:29). There was a haematoma belo w the right costal margin with rupture of liver with full of blood in peritoneal cavity.The injuries are ante-mortem in nature and caused by blunt weapon.

13. He further opines that the rupture of the liver may be caused also due t o fall on some hard substances like stone etc. He also opined that the injuries on the chest and the abdomen with rupture of the liver may be caused due to stum ping by legs on the chest and the abdomen. 14. This brings us to most vital witness produced from the side of prosecuti on and he is one Cheniram Rabi Das. According to him on the eventful day, in the evening a quarrel occurred between the deceased and father of the accused perso n. Sometime thereafter, the accused came to the House of deceased and tied him b y his hands and legs and started subjecting him to blows and kicks. When the PW- 3, the father of the deceased, tried to save his son, the accused threw him away . Having assaulted him, the accused left the house of PW-3. 15. Thereafter, the family members of the deceased provided him with the nec essary preliminary treatment and took him to the hospital next day in the mornin g. However, the deceased breathed his last in the hospital. On his death, PW-3 l odged an FIR with the Police. During investigation, police seized a rope which w as used in tying the hands and legs of the deceased and such rope was proved as material Ext-1. In his cross-examination, he denied the suggestion that the dece ased was making noise after taking alcohol when incident in question occurred. 16. PW-1, Sri Susanta Kr. Dutta, Executive Magistrate, deposes that he condu cted inquest on the dead body on 14.02.2005. On doing so, he noticed some wounds on the chest and leg of the deceased. PW-5 Sri Mridul Kr. Saikia, is a Judicial Officer. According to him, he recorded the statement of Witness of Smt Ila Rabi Das as per provision of 164 Cr.P.C.. Her statement was proved as Ex-2. PW-4 is Smt. Ila Rabi Das. According to her, the deceased was her husban 17. d. On the faithful day in the evening she was not in her house. When she returne d home she found her husband lying on the courtyard in an injured condition she was declared hostile. PW-6 is Sri Diganta Phukan, is a Sub Inspector of Police. According to h 18. im on 14.03.2005, he was working as I/C Madhupur police outpost. On that day, he received an FIR from the PW-3. Having received the same, he made necessary entr y in the relevant record maintained in the police outpost and forwarded the same to the OC Titabar police station for doing needful in accordance with law.

19. During the course of investigation, he made necessary arrangement for h olding an inquest of the dead body by the Magistrate, examined the witnesses, go t the statement of PW-3 recorded by Magistrate as per provision of Section 164 C r.P.C. and on completion of the investigation, he submitted charge sheet under S ection 447/302 IPC against the accused person. Ex-5 is the said charge sheet. On the perusal of the evidence on record, it would appear that there is 20. no dispute over the fact that on 14.03.2005, the deceased died at Jorhat Civil H ospital, that he died a homicidal death and that there were wounds on the body o f the deceased which occasioned his death. On perusal of evidence on record more and more, I have found that on the evening in question the deceased was subject ed to kicks and blows and all these were done by none other than the accused/app ellant. 21. The materials on records also reveal that the accused kicked several tim es on the bally of the deceased apart from making him immobilised by tying his h ands and legs. The intensity of assault was so enormous and so massive that the father of the deceased who tried to save his son got thrown away in that process . There is absolutely nothing on record to disbelieve above evidence on record. 22. The evidence rendered by PW-3 finds enormous support from the Doctor who conducted autopsy on the dead body as well as the Magistrate who conducted inqu est on the same during the course of investigation as far as site of wounds natu re thereof and instrument in inflicting those wounds are concerned. Such evidenc e of Doctor and Magistrate lends more and more support to the testimonies render ed by PW-3. 23. On the perusal of evidence in record in light of averments made in the F IR, I have found that a prosecution story as told by the PWs during trial and th e prosecution story as projected in the FIR, are found to be quite symmetrical o n all fundamental points and such consistent stories only further fortify the cl aim of prosecution that the accused had assaulted Milan Robi Das at his house on the day eventful for which he died next day at Jorhat Civil Hospital.

24. Here it is worth noting that the defence has contended that there was d elay in lodging the case and such delay remains unexplained. On perusal of the r ecord, I have found that there was in fact in no delay in lodging the case. Even one assumes for the sake of argument that there was delay, still then the mate rials on record reveals that due to wounds, which were sustained by deceased, th e family members were more concerned with his well being then with lodging crimi nal case against the perpetrator of the crime. Being so, in my considered opinio n, the allegation above has no valid basis at all. 25. It has also been contended that there was inconsistencies between the ev idence of Doctor and the PW-3. It has also been submitted that the case in quest ion was bad for PW-4’s not supporting the prosecution case. Coming to the first allegation I have found that there were no inconsistencies between the evidence of Doctor and the evidence of ocular witnesses. My forgoing discussion has made it clear and as such further discussion on this count is found redundant. In so far the other charge is concern, it may be stated that in assessin 26. g the acceptability or otherwise of the claim of prosecution in a particular cas e, the entire evidence needs to be considered as a whole and on such an exercise , if it is found that a particular case is acceptable, then same cannot be throw n away only for one or more witnesses therein turning hostile. 27. In our instant case, I have found that prosecution has successfully prov ed his charge brought against accused person on the basis of evidence of PW-1, P W-2, PW-3, PW-5 & PW-6. Therefore, only for PW-4 turning hostile to the prosecut ion, it cannot be held that prosecution has failed to prove the charge brought a gainst the accused appellant 28. The discussion, I have made herein before, clearly reveals that on the f ateful evening the accused came to the courtyard of the deceased and subjected h im to a barrage of kicks and blows for which he died next day in the Jorhat Civi l Hospital. 29 On the compactus of above discussion it can safely be held that on 13.0 3.2005, the deceased trespassed into the courtyard of PW-3, and subjected him to murderous assault for which he died at the Civil Hospital on 14.03.2005. In vie w of above, I am of the opinion that the prosecution has successfully proved the charge under Section 447/304 Pt-II IPC.

30. In above view of the matter, the decision of the learned Trial Court hol ding the accused guilty of offences under Section 447/304 Pt-II IPC and convicti ng him under the aforesaid sections cannot be faulted. I have found that accused convict has already been dealt with quite leniently. As such no further lenien Being so, I find no reason to interfere to the judgment of the Trial Cou In the result, the appeal fails. The accused is directed to surrender before the trial immediately to ser cy could be shown to him. 31. rt. 32. 33. ve out the sentences imposed upon him. 34. Return the LCR. 35. In view of the provision prescribed by Section 357(A) Cr.P.C. the victim or his/her dependents are entitled to get compensation for rehabilitation in ap propriate cases. Therefore, for the sake of brevity and in the light of our disc ussions, made in Criminal Appeal No.93(J)/2005 (disposed on 22.12.2011), with re gard to the victim compensation as provided by Section 357(A) Cr.P.C., we make t he following directions:- a. As an interim measure an amount of Rs.15,000/- shall be deposited by the Stat e Government with the District Legal Services Authority of Jorhat District withi n a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependent(s), who suffered loss as a result of death of the deceased an d if such dependant(s) or legal representative(s) need any rehabilitation. b. Upon such enquiry, if it is found that the dependent(s), if any, need rehabil itation, then the District Legal Service Authority shall initially release the s aid interim amount and thereafter direct payment of adequate compensation, as ma y be prescribed by the scheme to the prepared by the State Government. c. It is made clear that if the District Legal Services Authority, after due enq uiry, arrives at the findings that there is no dependent(s) or that the dependan t(s) of the deceased/victim does not required any rehabilitation, then the Distr ict Legal Services Authority, shall refund the said amount of Rs.15,000/- withou t delay, in favour of the State Government. Let a copy of this judgment and order be furnished to Mr Z Kamar, learne 36. d Public Prosecutor and the Chief Secretary to the Govt. of Assam, for doing the needful.