Aftab H. Saikia, J.@mdashHeard Mr. D. Talukdar, learned Counsel for the Appellant. Also heard Mr. P.C. Gayan, learned P.P., Assam.
2. The conviction of the Appellant u/s 302 IPC and the resultant sentence to rigorous imprisonment for life with a fine of Rs. 2000/-, in default to payment of fine, further rigorous imprisonment for two months so handed down by the Additional Sessions Judge (Ad hoc,) at Jorhat in Session Case No. 93 (J-J) 103 by the judgment and order dated 7.2.2006, has been assailed in this criminal appeal.
3. The fact in brief as projected by the prosecution is that on 30.9.2001 at about 11.30 a.m. while the complainant''s father Bhogeswar Baruah (since deceased and hereinafter referred "the deceased") was returning home after attending function in the village, the accused Ganesh Gogoi and I his sons Mon Gogoi and Devojit Gogoi dragged Bhogeswar Baruah to their house and tied him with a rope. Thereafter, the accused persons inflicted lathi blows on him for which he sustained grievous injury. On hearing about the incident complainant Prasanna Baruah PW 1 rushed to the house of the accused persons and tried to save his father from the clutches of the accused. Accused Ganesh Gogoi also assaulted the informant PW 1 with a bamboo lathi, causing several injuries on his head other parts of the body. The deceased was shifted to Jorhat Civil Hospital. Thereafter, he was admitted at Assam Medical College Hospital, Dibrugarh where he succumbed to his injuries.
An First Informant Report was lodged by PW 1, Prasanna Baruah on 1.1.2001 on the next day with the Officer-in-Charge, Teok Police Station indicating the above incident and on the basis of the above information, the police started investigation.
On completion of the investigation, the police filed charge-sheet against all the three accused persons namely the Appellant, Ganesh Gogoi, Debojit Gogoi and Mon Gogoi showing Mon Gogoi as absconder u/s 302/34 IPC and both the Appellant and Devojit Gogoi faced trial.
4. Upon appreciation of evidence of as many as 12 witnesses so examined by the prosecution including two medical officers named PW 6, Dr. Ajit Kumar Sharma and PW 12, Dr. B.C. Roy Medhi and PW 10 Khiteswar Bania, Investigating Officer (I.O.), while acquitting Devojit Gogoi, the learned Judge found the Appellant guilty u/s 302 IPC for killing Bhogeswar Baruah, the deceased and accordingly convicted the Appellant and sentenced him as above mentioned.
5. Mr. Talukdar the learned Counsel in support of the appeal and also assailing the impugned conviction and sentence, has specifically submitted that the findings arrived at by the learned Sessions Judge are ex facie, perverse as the learned Judge failed to appreciate and assess the deposition of the material evidence on record in its proper perspective particular the learned Judge misread and misconstrued the deposition of PW 8 who has been projected by the prosecution as the sole eye witness and according to him, only on this count itself, the conviction and sentence of the Appellant needs to be interfered with.
6. In support of his submission the learned Counsel has straightaway taken us to the deposition of PW 8, Sri Konpai Baruah.
7. On close scrutiny of the evidence of PW 8, it is found that he clearly stated that the incident took place two years ago i.e., on 13th day of Ahin (Assamese month falls in the month of September and October) and on that delay he alongwith Ganesh Baruah, Durgeswar Baruah and Ghanashyam Baruah went to the attend a function one Pradip Lahan''s residence. After the function they returned home at about 11 a.m. Ghanashyam, Bhogeswar and Thanu were proceeding and he found them near Pradip Lahan''s home. One Umesh Goswami who was not examined, told that there was a hue and cry at Ganesh''s residence. Then on entering into Ganesh Gogoi''s residence, he found three accused persons were assaulting Bhogeswar Baruah. He was categorical in his deposition that Ganesh was striking the deceased with his fist. The accused Debojit Gogoi (acquitted by the trial Court) assaulted him with bamboo lathi, and Mon (Absconder) was on Bhogeswar''s back. Bhogeswar (deceased) was lying at the floor and his hands and legs were kept tied with a rope, blood oozing out from his mouth.
8. Having discreet scanning of the evidence of the other witnesses, it is seen that there was no evidence on record to show that as to who kept the hands and legs of the deceased tied up by the rope. PW 8, being only the eye witness, was also silent in giving any light as regards the fact of tying up of the deceased''s hands and legs by rope.
9. From the material evidence of PW 6 who examined the injured Bhogeswar Baruah, the following injuries were noticed.
1. Swelling 2 cm. � 3 cm. size with tenderness on the right side occipitotemporal region of the scalp super quarterly.
2. Swelling of the left lower eye lid and lateral part of the upper eyelid with 1 cm. transverse superficial cut injury on the mexillery region of the face of the left side.
3. Present bleeding upper jaw. There is no other injury in the mouth.
4. 2 c.m. longicultival cut wound in lower third of the left arm posterolately with 0.5. c.m. depth and with fresh bleeding.
5. 3 c.m. transverse cut wound on the anterolateral aspect of the hand at the base of the left index finger on the left side. Fresh bleeding present."
6. 3 c.m. � 1 c.m. size sharp cut wound on the anterolateral aspect of the right hand at he base of one index finger. Fresh bleeding present.
The Doctor who examined the injured Bhogeswar Baruah (deceased) in his opinion stated that all those injuries were fresh and type of weapons for injury No. 1, was blunt and for other injuries, the type of weapon was sharp. The Doctor was specific in opining that the nature of injury were simple individually.
10. Keeping the medical evidence in mind, as stated above, Mr. Talukdar has drawn our attention to the inquest report Ext. 2 wherein it was clearly recorded that no injury was present on the head of the deceased. He has also stated that even PW 6, the Doctor who examined the deceased for his injury, did not spell out any such injury on the head which might be fatal except the injury No. 1 which indicated only the swelling of 2 c.m. � 3 c.m. size with tenderness on the right side occipitotemporal region of the scalp superquarterly.
11. Now coming to the medical evidence of PW 12, Dr. B.C. Roy Medhi who conducted the autopsy over the dead body to the deceased, it is seen that he found the following lowing injuries:
Recently healed scar of wound present over palms of 1st web fingers of hands on both sides and on back of elbow joints present. No fresh injury noticed externally. Ligature mark not found on dissection-healthy.
Cranium and spinal canal:
Scalp: Externally healthy. On dissection-contusions present on left side of occipital region and right tempor parietal regions.
Skull, vertebrae--healthy.
Muinges--Congested.
Sub-dural haemorrhage present on anterior aspect in both hemispheres.
Brain--laceration of lower part of right parietal and poles of brain. The brain is congested as a whole. Spinal cord not examined.
Heart:
Moderately enlarged. Chambers are full with fluid and clotted blood. Coronary vessels are partly thickened and patent.
Vessels: generalized thickening present.
The opinion of the Doctor, PW 12 was that the cause of death was coma as a result of injuries sustained on the head. The injuries described were ante-mortem and caused by blunt force impacts and homicidal in nature.
12. In the backdrop of the above evidence so far adduced by PW 8, PW 6 and PW 12, it is contended that the learned Judge in recording the finding in paragraph 57 of her judgment held that:
...Accused Ganesh Gogoi inflicted injury on Bhogeswar Baruah and caused his death, So far the intention is concerned, I find that accused Ganesh Gogoi inflicted lathi, blows on the vital part of the body i.e., on head and the accused with an intention called Bhowgeswar Baruah to his house and tied him with a rope....
13. The above finding, according to the learned Counsel for the Appellant, is wholly perverse as there was no evidence on record to indicate that the Appellant inflicted lathi, blows on the vital part of the deceased. It is clear and explicit evidence of PW 8 that the Appellant struck the deceased with his fist and there is even no whisper that the Appellant was responsible for tying the deceased with a rope with an intention to kill him.
14. In so far as the evidence of other witnesses namely PWs 1, 2, 3, 4, 5, 7, 9 and 11 is concerned, on scrupulous analysis of the same, it is found that the evidence of those witnesses was only hearsay as they had been informed only about the assault on the deceased. Accordingly, we do not find any compelling or convincing testimony of those witnesses including the deposition of PW 8, who has been projected by the prosecutions as only eye witness as indicated above to sustain the conviction of the Appellant u/s 302of IPC. Since PW 8 only testified that Ganesh struck the deceased with his fist and that too without mentioning on which part the blow was dealt with, we are of the view that the finding recorded by the learned Judge that the Appellant struck the deceased with a lathi, blow on the vital part on the body i.e., on head appears to be perverse and also since there was no evidence on record as regards who had tied up the hands and legs of the deceased, we are of the considered view that on the basis of this set of evidence the conviction of Appellant u/s 302 IPC cannot be sustained.
15. It is also admitted and noted herein that the deceased was assaulted on 30.9.2001 at about 11.30 a.m. and he died on 4.11.2001 succumbing to the injuries so inflicted upon him as per the medical evidence of PW 12. During this long gap of period no dying declaration was made by the deceased. Even no attempt has been made to record his denying declaration during the period he had undergone treatment in the Hospital. There is also no evidence on record that the deceased went into coma immediately after so called assault. Even PW 6 who examined the dead body of Bhogeswar Baruah (deceased) never stated that the patient was under coma rather he opined that the nature of injury was simple and individually.
16. In view of what has seen stated, discussed and observed, we are of the considered view that the prosecution has failed to prove the case against the Appellant beyond reasonable doubt and accordingly the impugned conviction and sentence are hereby interferred with and the same stands set aside and quashed.
17. In the result, this appeal succeeds and stands allowed.
18. LCR be send down immediately.
