Sonu Nayak vs The State Of Assam And Anr
2021 Latest Caselaw 3372 Gua

                                                                  Page No.# 1/23

GAHC010056162018




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.A./180/2018

            SONU NAYAK
            SON OF LATE SONARAM NAYAK
            RESIDENT OF GHOORONIA TEA ESTATE, DHUBI LINE, PO AND PS
            BORBORUAH, DIST DIBRUGARH ASSAM



            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY PP ASSAM

            2:SRI HARI KHERUWA
             SON OF LATE RAHU KHERUA
            RESIDENT OF GHOORONIA TEA ESTATE
             PO AND PS BORBORUAH
             DIST DIBRUGARH ASSAM
             78600

Advocate for the Petitioner   : MR. P J SAIKIA

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

Date of hearing : 07.12.2021 & 09.12.2021.

Date of judgment :            09.12.2021.
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                          JUDGMENT AND ORDER (Oral)

(Suman Shyam, J)

Heard Mr. R. S. Mishra, learned counsel appearing for the appellant. We have

also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for

the State/respondent No.1. None has appeared for the informant/respondent No.2.

2. The prosecution story is that on 15.01.2012 at around 4.30 a.m. the accused

persons viz., Sonu Nayak, Bodon Nayak, Govinda Nayak and Badal Nayak had

hacked the deceased Raju Kheruwar with sharp weapon resulting in his death. On

15.01.2012, Sri Hari Kheruwar i.e. the son of the deceased had lodged an ejahar

before the Officer-in-charge of Borborua Police Station in the district of Dibrugarh

reporting the incident. On receipt of the ejahar, Borborua P.S. Case No.15/2012 was

registered under Section 302/34 of the Indian Penal Code (IPC) and thereafter, the

matter was taken up for investigation. The dead body was sent for post-mortem.

After obtaining the post-mortem report as well as report of the Forensic Science

Laboratory (FSL), the Investigating Officer (I.O.) had laid charge-sheet under Section

302/34 of the IPC against the four accused persons. The charge, on being read over

and explained to the accused persons, was denied by them as a result of which, the

accused persons were made to face trial.

3. During trial, the prosecution side had examined as many as 9 witnesses

including the PW-3, who is the doctor who had conducted post-mortem examination

on the dead body and the PW-9 i.e. the Investigating Officer. After recording the

evidence of the prosecution witnesses, the statement of the accused persons was Page No.# 3/23

recorded under Section 313 of the Cr.P.C. The defence case is one of total denial.

However, the defence side did not lead any evidence. Upon appreciation of the

evidence available on record the learned trial court has held that the charge

brought against the appellant Sonu Nayak was proved by the prosecution beyond

reasonable doubt and accordingly, he was convicted under Section 302 of the IPC

and sentenced to undergo rigorous imprisonment for life and also to pay fine of

Rs.10,000/-, in default, to undergo simple imprisonment for further three months, for

committing the offence punishable under Section 302 of the IPC. The remaining three

accused persons viz., Govinda Nayak, Badal Nayak and Bodon Nayak were,

however, acquitted on the ground that the prosecution had failed to establish the

charge brought against them under Section 302/34 of the IPC.

4. Assailing the impugned judgment dated 24.01.2018 passed by the learned

Additional Sessions Judge, Dibrugarh in connection with Sessions Case No.176/2012,

Mr. Mishra, learned counsel for the appellant, has argued that the conviction of the

appellant is based on the testimony of PW-8, who was treated as an eye-witness and

also on the seizure-list Ext-6 and the FSL report indicating presence of human blood in

the seized knife as well as the apparels of the accused and the deceased. However,

Mr. Mishra, submits the PW-8 is not an eye-witness and due to the material

contradictions in his testimony, the evidence of PW-8 was liable to be discarded by

the learned trial court. In so far as the seizure-list (Ext-6) and the FSL report (Ext-9) is

concerned, Mr. Mishra has argued that there is nothing to show that the blood stain

found in the "knife" as well as the wearing apparel of the accused is that of the

deceased. By referring to the evidence available on record, more particularly the Page No.# 4/23

testimony of PW-9 (I.O.), Mr. Mishra has argued that the appellant himself had

received injuries and therefore, there is a strong possibility that the blood stain in the

knife as well as those in his apparels belonged to the appellant himself. Mr. Mishra has

further argued that the evidence as well as the recovery of blood stained knife, long

pant of the accused and the jacket of the deceased containing human blood and

also the FSL report was never put to the accused while recording his statement under

Section 313 of the Cr.P.C. so as to give him an opportunity to explain his stand but

those materials had been relied upon by the learned trial court for convicting the

appellant. Urging that serious prejudice has been caused to the appellant due to

such omission on the part of the learned trial court, Mr. Mishra has argued that had

the aforesaid circumstances been put to the accused while recording his statement

under Section 313 of the Cr.P.C. the accused/ appellant would have certainly

clarified that the blood in his apparel as well as the knife was his and not the

deceased. Under the circumstances, the learned counsel for the appellant has

prayed for setting aside the impugned judgment dated 24.01.2018 and acquitting

the appellant on the ground that the prosecution had failed to establish the charge

brought against the accused/appellant beyond reasonable doubt.

5. Resisting the above submissions, Ms. B. Bhuyan, learned Additional Public

Prosecutor, Assam, has argued that even if it is held that PW-8 is not an eye-witness to

the occurrence, yet, there is sufficient evidence to show that PW-8 was present with

the deceased at the time when the incident took place and therefore, his evidence

cannot be completely brushed aside, more particularly, on account of the fact that

the testimony of PW-8 finds due corroboration from his statement recorded under Page No.# 5/23

Section 164 of the Cr.P.C. Ms. Bhuyan has further argued that during the cross-

examination of the I.O. the defence counsel has not challenged the authenticity of

the seizure-list Ext-6 or the FSL report Ext-9. As such, it would not be permissible for the

appellant's counsel to now question the validity of the said evidence for the first time

at the appellate stage. Ms. Bhuyan further submits that there are sufficient

incriminating materials brought on record by the prosecution to establish the charge

brought against the appellant under Section 302 of the I.P.C. and therefore, no

interference with the impugned judgment dated 24.01.2018 is called for in this case.

6. From a careful reading of the impugned judgment dated 24.01.2018, we find

that the learned trial court had summed up the findings and conclusions in

paragraph 18 of the judgment wherein, it has been observed that PW-8, Molu Mura

had witnessed the occurrence and had also narrated the fact that accused Sonu

Nayak had a quarrel with the deceased and thereafter, inflicted some blows by dao;

that the statement of PW-8, Molu Mura finds corroboration from his statement

recorded under Section 164 of the Cr.P.C. wherein also he had implicated accused

Sonu Nayak; that the I.O. had also seizure-lists Exts-6 and 7 and the FSL report Ext-9

has confirmed the presence of human blood in the seized knife as well as the

wearing apparels of the accused and the deceased; that the dead body of the

deceased was recovered from the vegetable garden of the appellant Sonu Nayak;

that the evidence of PW-8, Molu Mura was found to be reliable. On such basis, the

learned trial court had convicted the appellant while acquitting the other co-

accused persons due to want of evidence against them. Therefore, the pertinent

question that would fall for consideration of this Court in the present proceeding is as Page No.# 6/23

to whether PW-8, Molu Mura was an eye-witness to the occurrence and if so, whether

his evidence was reliable so as to base the conviction of the appellant under Section

302 of the IPC on it. It would also be necessary for this Court to examine as to

whether the prosecution had succeeded in establishing the charge brought against

the accused/appellant beyond reasonable doubt. In order to do so, it will be

necessary for us to briefly refer to the prosecution evidence available on record.

7. As mentioned above, Sri Hori Kheruwar i.e. the son of the deceased is the

informant in this case. Hori Kheruwar was examined by the prosecution as PW-1. This

witness has deposed that the occurrence took place in the year 2012 during "Magh

Bihu". On the day of the incident he was arranging "Meji" and his brothers Rajen

Kheruwar, Rajesh Kheruwar and Chhotu Kheruwar were also present. Suddenly, his

brother-in-law, Molu Mura and Sakhi Kheruwar told him that his father had been killed

by Sonu Kheruwar and Sanat Nayak. On receipt of the information, he immediately

rushed to the place of occurrence along with his brothers Rajesh Kheruwar, Sukhu

Kheruwar, Rajen Kheruwar and his mother Smti. Astha Kheruwar and saw the dead

body of his father lying in the "bari" (garden) of Sonu Nayak. PW-1 has stated that he

had seen injury of dao blows on the neck, forearm, back and other parts of the body

and the dead body was blood stained. Police arrived at the place of occurrence

when they were trying to lift the dead body. PW-1 has confirmed that he had lodged

the ejahar Ext-1 and that Ext-1(1) is his signature. This witness has further stated that

the accused persons were all brothers. Just before the incident, Molu Mura (PW-8)

was with his father and it was Molu Mura who had informed them that the accused

persons had killed his father. Police conducted inquest over the dead body of the Page No.# 7/23

deceased. Ext-2 was the inquest report and Ext-2(1) was his signature. PW-1 has also

stated that the police had recorded his statement and had sent the dead body for

post-mortem examination.

8. During his cross-examination, PW-1 has stated that the house of the accused

persons is situated at a distance of about one kilometer from his house. On the day of

occurrence there was thick fog, due to which, nearby places and things were not

visible. There was no electricity in his house. He has further stated that on the day of

the occurrence there was a "bhoj" (feast) in their house and his father (deceased)

and other family members were present in the "bhoj". Till about 2.00 a.m. they had

enjoyed the feast and there was arrangement of "rice bear"(Haria) in their house. This

witness has stated that his father used to consume alcohol. As regards Molu Mura,

PW-1 has stated that Molu Mura (PW-8) was a habitual drunkard and he used to

always remain in a state of intoxication and used to fall down here and there under

the influence of alcohol. Molu was present in their house on the day of the

occurrence and had also participated in the "bhoj". Molu had also consumed rice

bear. The witness has further stated that nobody from their family had informed the

police about the occurrence. The dead body was recovered from near Ghooronia

Tea Estate. The PW-1 had, however, denied that his father was earlier implicated in

the murder of one Dilip Mahili in which incident, the village people had cut his father

on the right side of the neck. Since then he had enmity with the family members of

the accused.

9. PW-2, Sri Rajen Kheruwar is the nephew of the deceased (paternal uncle). PW-

Page No.# 8/23

2 has deposed that the incident took place about two years back on the day of

Magh Bihu on which day, they were arranging "Meji". At that time, Hori Kheruwar

(PW-1), Rahesh Kheruwar (PW-4), Sanjay Kheruwar (PW-5), Rupa Kheruwar and his

aunt Asa Kheruwar were present. All of them had gathered near the "Meji". The

deceased had visited the house of Jiten Nayak who was a relative of the accused

and his brother-in-law Molu Mura was present with the deceased. At about 3.30 a.m.,

all of a sudden, Molu Mura came running and told them that the accused persons

had killed Raju and the dead body was lying in the garden of Badan Nayak and

Sonu Nayak. Immediately, all of them rushed to the house of accused Sonu Nayak.

PW-2 has also stated that he was accompanied by Rajesh Kheruwar, Hori Kheruwar,

Sanjay Kheruwar and his father Dehla Kheruwar as well as the wife of the deceased

when they went to see the dead body. When they reached the place of

occurrence, they found Raju Kheruwar was lying dead in a pool of blood. He had

sustained injuries on the back, neck, right hand and also in the lower portion of the

body. Then they had raised a hue and cry, hearing which, some neighbours had

gathered near the dead body. The accused persons had entered into their house

and put their door under lock and key. Thereafter, the police arrived at the spot,

conducted inquest on the dead body and prepared inquest report Ext-2. Ext-2(2) was

his signature in the inquest report. The police then took away the dead body for post-

mortem. His statement was recorded by the police.

10. During his cross-examination, PW-2 has stated that he had not seen the

incident but when he went there he found the deceased lying dead with cut injuries.

PW-2 has stated that the house of the accused persons were situated at about 100 Page No.# 9/23

meters away from the place of occurrence. Deceased Raju Kheruwar had also

participated in the "bhoj" and consumed rice bear (Haria). This witness has further

stated that the house of the accused persons was situated at a distance of about 1

kilometer from the house of the deceased. PW-2 has, however, denied that the

public had inflicted injury on his neck in the case of Mili. According to PW-2, when he

had arrived at the place of occurrence it was dark and foggy. Due to the fog

nothing was visible even from close distance. This witness has also stated that Molu

Mura was a heavy drinker and he used to remain in a state of intoxication. Molu Mura

did not go out of house and he had previous enmity with the co-villagers. PW-2 has

also mentioned that he did not state before the police that he had gone to the

"Sabjibari"(vegetable garden) of Sonu Nayak and found Raju Kheruwar lying dead.

11. PW-3, Dr. Subhrajyoti Deka was working as Assistant Professor, Department of

Forensic Medicine, AMCH, Dibrugarh on 15.01.2012 when the dead body of Raju

Kheruwar was brought for post-mortem. PW-3 had conducted the post-mortem

examination and he has also proved the post-mortem report Ext-3. According to the

post-mortem report, following injuries were found in the dead body :-

"Injuries

1. Chopped wound over the right forearm 15 cm from the wrist joint attached with a skin tag, completely cutting both bone of the forearm, reddish in colour, clear cut muscle skin, vessels and bone.

2. Incised wound clean cut inverted margin over left leg on the buttock 21 cm in length and horizontally placed 6 cm left from the iliac Page No.# 10/23

creast upto 3 cm to the id line, exposing muscles, fats.

3. Incised wound of 18 X 1.5 cm over left leg below injury No.2, horizontally placed muscle deep 6 cm below injury No.2.

4. Incised wound over left thigh, of 8 cm below injury No.3 horizontally placed, bone nick present, 7cm below injury No.3.

5. Incised wound of 19cm x 9 cm extending from the right side of the neck 4 cm below right angle of the mandible to left side of back of the neck and right mastoid 6 cm completely severed C4 and spinal cord and both side internal carotid arteries along with carotid sheath.

6. Incised wound of 6cm over left forearm obliquely placed clean cut margins.

7. Incised wound over left back of chest of 9cm x 1.5 cm muscle deep reddish in colour bone nick present over the back. On examination of Cranium and spinal Canal, scalp and skull healthy. Vertebrae as described.

Membrane and Brain pale. Spinal Cord severed completely at C4."

As per the opinion of PW-3, death of the deceased was instantaneous as a result of

injuries sustained. All the injuries were ante-mortem and caused by sharp cutting

weapon. PW-3 has further opined that Injury No.5 was sufficient to cause death of an

individual and the injury Nos.1, 2, 3, 4, 6 and 7 can cause death collectively in

ordinary course of nature.

12. PW-4, Sri Rajesh Kheruwar is the brother of the informant and another son of

the deceased. He has deposed that the incident occurred in the year 2012 on the

day of Magh Bihu, at about 4.00 a.m. in the morning. When he was sitting near the

"Mejji". At that time, his brother-in-law Molu Mura came and told that all the Page No.# 11/23

accused persons had assaulted and killed his father in the courtyard of their

vegetable garden. PW-4 has stated that he came to know from his brother-in-law

Molu Mura, that he was present at the place of occurrence when the incident took

place and he had seen in his own eyes, all the accused persons assaulting and killing

his father. After getting the aforesaid information, he along with his brothers, Hori

Kheruwar, Rajen Kheruwar and other people, 7 in total, went to the "Sabjibari" of the

accused persons and on arriving there, saw the cut injuries in the neck of his father,

on both the hands and both the legs. When they arrived there, all the accused

persons had shut their door from inside and went in hiding. When they arrived at the

place of occurrence Badan Nayak had informed the police. Police came and

interrogated and thereafter, arrested the accused persons. During his cross-

examination, PW-4 has stated that due to thick fog at the place of occurrence things

were not visible. His father was taking alcohol on the date of the incident. He had not

seen the occurrence.

13. PW-5, Sanjay Kheruwar is the other son of the deceased. He has also deposed

that the incident took place at around 5.30 a.m. on the day of Magh Bihu. At around

10/10.30 am, his brother-in-law Molu Mura (PW-8) came to their house and informed

that his father had a quarrel with someone. Then the three brothers viz. Rajesh, Hari

and himself went out in search of his father. While making such search, Hari (PW-1)

saw his father lying in the enclosed yard of the accused persons. Going near the

dead body he had seen cut injuries in the nape, hand and legs of the victim. He had

also seen injuries in the back of the waist. Later, police came in the place of

occurrence. During his cross-examination, PW-5 has stated that when enquired by the Page No.# 12/23

police, he had replied that he had no knowledge about the incident. PW-5 has

stated that he went to the place of occurrence at around 11.00 am and saw the

dead body. PW-5 has, however, denied that his brother-in-law was a drunkard but

has stated that the place where the dead body was found did not belong to the

accused persons but they used to cultivate there. He has also stated that they did

not have any animosity with the accused persons.

14. PW-6, Sri Jacky Bhokta is an independent witness and he has stated that the

incident took place during the Magh Bihu festivals. On the day of the incident, he

had suddenly heard a commotion and came to know that the family members of

Raju Kheruwar were searching for him. Then, he also joined them. While making the

search, he had seen the dead body in the vegetable garden of the accused

persons. PW-6 has also stated that he had seen injuries in the hand, legs and nape of

Raju. However, the police did not examine him. During cross-examination, PW-6 has

stated that they had gone out searching for Raju at around 7.00 am and found that

the dead body was lying in a place beside Ghuroniya Tea Estate. That place was a

plot of land belonging to the tea estate. There was human habitation near the place

of occurrence but the neighbouring people expressed their ignorance about the

incident. PW-6 has also stated that it was foggy all around and on the day of the

incident, many people were consuming liquor. Molu Mura (PW-8) usually remains in a

drunken state and on the day of the incident the deceased and Molu Mura

consumed liquor.

15. PW-7, Durga Lohar is another independent witness, who has also stated that at Page No.# 13/23

around 9.30 am on the day of the incident he had heard commotion and then he

came to know that Raju had died. He had seen the dead body of Raju in the

enclosed yard of the accused persons but he did not go near the body. Police had

examined him. In his cross-examination, PW-7 has stated that the dead body of the

deceased was lying on the land belonging to Ghuroniya Tea Estate.

16. PW-8, Molu Mura is the son-in-law of the deceased and he had apparently

accompanied the deceased to the house of the accused persons on the day of the

incident. This witness has been treated as an eye-witness to the occurrence and while

convicting the appellant, the learned trial court had also placed heavy reliance on

his testimony. PW-8 has stated that on the night of the incident he was there along

with the deceased and had gone to the house of accused Badal and others.

Deceased Raju had told accused Badal Nayak to construct a temple in his house in

presence of Bodon, Sonu and himself. At that, an altercation took place between

Raju and Sonu. Later, Sonu had dealt a cut blow on Raju with a dao. As soon as Sonu

took out the dao he had fled the place. On reaching home he had informed the

family members of the deceased about the incident. Later, he came with the police

to the place of occurrence and saw the dead body of Raju in the enclosed yard of

Sonu. PW-8 has also stated that during investigation, the police had recorded his

statement.

17. In his cross-examination, PW-8 has stated that on the day of the incident the

deceased and he had consumed substantial amount of liquor. As he had consumed

liquor, he was not in his senses. As he was in a drunken state, he was unable to walk.

Page No.# 14/23

Raju was also drunk. There was no street light in the roads of the locality. PW-8 has

also stated that during investigation he told the police that he had gone to the

washer man's house. According to PW-8, the incident took place at around 3.00 a.m.

in the night but he did not see the whole incident as he had fled the place and there

was darkness all around. PW-8 has also stated that sons of Raju (deceased) had told

him to adduce evidence in connection with the incident and that is why he has

adduced evidence. However, he could not say what had actually happened as he

was in a drunken state. Ext-4 is his statement which was given as told by the sons of

the deceased.

18. PW-9, Sri Babu Singh is the I.O. in this case. PW-9 has deposed that on

15.01.2012, he was posted as the Second Officer at the Borborua Police Station. On

that day, at about 5.00 am, one Badan Nayak of Ghooronia Tea Estate had informed

that someone had been murdered in their tea garden. On receipt of information, the

Officer-in-Charge made an entry in the General Diary bearing No.343 dated

15.01.2012 and proceeded towards the place of occurrence. PW-9 had stated that

he had also accompanied the Officer-in-Charge. On reaching the place of

occurrence, which was a vegetable garden of Sonu Nayak, they found a dead body

with injuries on various parts of the body. The local people were present there and

informed that the dead body was of Raju Kheruwar. The I.O. had then prepared

sketch map of the place of occurrence. Inquest was conducted over the dead body

and thereafter the body was forwarded to the AMCH for autopsy. PW-9 has also

stated that he had recorded the statement of the witnesses before forwarding the

dead body to the hospital. He had seized the wearing apparels of the deceased in Page No.# 15/23

presence of witnesses. After examining the witnesses he found that Sonu Nayak,

Badan Nayak, Gobin Nayak and Badal Nayak were involved in the occurrence and

accordingly, arrested them from their houses. He had also seized one "Kalam Katari"

(knife) on being produced by the accused Sonu Nayak. There was blood stain in the

"Katari". He also found that there was mark of blood in the trousers of Sonu Nayak

and accordingly he had seized the same. Thereafter, the accused persons were

brought to the Police Station and then the informant Hori Kheruwar lodged the F.I.R.

PW-9 has further stated that the seized "blood stained" trouser and the knife were

sent to the FSL and the statement of Molu Mura was also recorded under Section 164

Cr.P.C. before the Magistrate. It, however, appears from the testimony of PW-9 that

before completion of the investigation he was transferred as a result of which, the

Case Diary was handed over to Sub-Inspector of Police (S.I.) Bipul Chakraborty, who

had completed the investigation and submitted the charge-sheet against the

accused persons under Section 302/34 of the IPC. It further appears from the

evidence of PW-9 that the SI Bipul Chakraborty had also collected the post-mortem

report as well as the FSL report.

19. During his cross-examination, PW-9 has stated that during investigation,

witnesses were examined only by him. He had arrested the accused persons,

prepared the sketch map, conducted inquest over the dead body, made the seizure

and recorded the statement of the witnesses. The I.O. (PW-9) has further stated that

initially, information about the incident was given by accused Bodon Nayak, whom

he did not know. He had recorded the statement of Bodon Nayak. However, during

investigation it was found that Bodon Nayak was involved in the occurrence. The PW-

Page No.# 16/23

9 has further stated that he did not mention in the Case Diary about torching of the

house of accused persons by the sons of the deceased nor has he mentioned that

the accused persons were beaten up by the sons of the deceased. PW-9 has also

denied the suggestion put to him by the defence side that the "Katari" (knife), which

was seized by him, was used for assaulting the accused. The I.O. has further stated

that he did not mention about the existence of any fencing near the place of

occurrence and that he did not find any fence in the place of occurrence. PW-9 had

also confirmed that he did not seal the seized item before forwarding the same to the

FSL and he could not say as to who had investigated into the case filed by the

accused person. This witness has further confirmed that he did not record the

statement of the doctor who had conducted the autopsy.

20. We find from the record that the statement of PW-8, Molu Mura was recorded

under Section 164 Cr.P.C. wherein, he had stated that on 15.01.2012, at around 5.00

am, he had gone to the house of Sagar Kheruwar to call him as both of them were

supposed to go to hunt a pig. At that time, Raju Kheruwar was sitting in the house of

Sagar. Raju had told him that they should go to the house of Jiten Nayak and dance.

At that time, Raju and he went to the house of Jiten. While coming out from the

house of Jiten he had entered into the house of Raju. Later, Raju and he again came

out and saw that Bodon Nayak alone was lighting the "meji" and taking his meal.

When both of them asked him (Bodon) to give them some liquor, he had given it to

both of them. Later on, an altercation took place between Bodon and Raju. While

the altercation was going on, Bodon Nayak's elder brother Sonu Nayak came there

with a dao and dealt a blow on the neck of Raju. On seeing that, Bodon and he had Page No.# 17/23

fled from the scene and Raju died. He had sent his wife Sokhi Mura to the house of

Raju to inform about the incident and the fact that Sonu had killed Raju. Accordingly,

his wife had informed the family members of Raju.

21. As has been mentioned herein above, the learned trial court has placed

heavy reliance on the evidence of PW-8 and by treating him as an eye-witness to the

occurrence had reached the conclusion that it was none other than the appellant

Sonu Nayak who had assaulted the victim Raju leading to his death. However, from a

careful scrutiny of the evidence of PW-8, we find that he has himself admitted that he

had not seen the incident but had only seen Sonu Nayak taking out a dao. At that

stage, he had fled the place. Later on, he had seen the dead body of Raju in the

enclosed yard of Sonu. During his cross-examination, PW-8 had further admitted that

he was not in his senses and he did not see the whole incident as he fled away. There

was darkness in that place and that he had deposed on being asked by the sons of

the deceased though he could not say what had actually happened.

22. We also find that the statement of PW-8 recorded under Section 164 Cr.P.C.

does not corroborate his evidence adduced before the court. Rather, the statement

of this witness recorded under Section 164 Cr.P.C. projects a different version of the

incident. Moreover, it has come out from the testimonies of PWs-1 and 2 that PW-8

was a habitual drunkard and almost all the time, he used to be in a state of

intoxication. As a matter of fact, there is sufficient evidence adduced by the

prosecution side to show that on the day of the occurrence PW-8 had consumed

substantial amount of liquor and therefore, he was in a state of inebriation. In view of Page No.# 18/23

the above and having regard to the nature of evidence adduced by the PW-8, we

are of considered opinion that he is neither an eye-witness to the occurrence nor is

the evidence adduced by the PW-8 found to be trustworthy.

23. Coming to the place of occurrence, the evidence brought on record by the

prosecution itself creates substantial doubt as to the exact place of occurrence and

also as regards the fact that the incident did take place on the property belonging to

the appellant as claimed by the prosecution. On one hand, PW-1 has stated that the

place of occurrence belongs to the Ghuronia Tea Estate. On the other hand, PW-2

has deposed that the accused persons had killed Raju Kheruwar and threw the dead

body in the "bari" (garden) of the accused Sonu and Bodon Nayak. The prosecution

witnesses have further deposed that the vegetable garden where the dead body

was found was under fencing. However, the I.O. (PW-9) stated during his cross-

examination that he did not find any fencing near the place of occurrence.

24. As regards the time of occurrence, here also we find material contradictions in

the version of the prosecution witnesses. While PW-1 had stated that the incident took

place at about 4.30 am, according to PW-2, Molu Mura (PW-8) came running and

informed them about the incident at about 3.30 am. During his cross-examination,

PW-1 had stated that on receipt of information he had reached the place of

occurrence at around 2.30 am. PW-4 has stated that the incident took place at

around 4.00 am in the morning when he was in the line near the "meji" and his

brother-in-law Molu Mura had come there and informed them about the incident.

PW-5 has deposed that the incident took place at around 5.30 am and Molu Mura Page No.# 19/23

(PW-8) had come and informed them about the incident at about 10/10.30 am.

During his cross-examination, PW-5 has stated that he went to the place of

occurrence having come to know about the incident at around 11.00 am. PW-7, who

is an independent witness, has deposed that at around 9.30 am he had heard

commotion and then came to know that Raju had died and he had seen the dead

body of Raju in the enclosed yard of the accused persons. According to PW-8, the

incident took place at around 3.00 am in the night. PW-9 i.e. the I.O. has, however,

deposed that on the day of the incident they had received information from Bodon

Nayak at about 5.00 am in the morning that someone had been murdered. If the

version of the I.O. as regards the time and place of occurrence is to be believed,

then it appears that the evidence adduced by PWs-5 and 7 did not reflect the truth.

25. It also transpires from the evidence on record that the "katari" (knife) and

wearing apparels of the accused and the deceased were seized by Ext-9 and the

same were sent to the FSL. As per the report of FSL (Ext-9) trace of suspected human

blood of "B" group was found after the test. However, the prosecution has not

examined the Forensic expert. As a matter of fact, SI Bipul Chakraborty, who had

apparently collected the FSL report and laid the charge-sheet has also not been

called as a witness in this case. There is no evidence available on record to show that

the blood stains allegedly found in the seized "katari" and the long pant of the

accused was that of the deceased.

26. It is also to be noted herein that as per PWs-1 & 2, when they were sitting near

the "Meji" along with other members of the family at that time PW-8, Molu Mura Page No.# 20/23

came and informed that Raju Kheruwar has been killed. At that time, PW-8 was with

Sokhi Kheruwar. However, Sokhi Kheruwar was not examined as a witness. PW-5, who

is also a son of the deceased, has stated that around 10/10.30 am PW-8 came to

their house and informed that their father had a quarrel with someone. Then, he

along with his brother Rajesh (PW-4) and Hari (PW-1) went out in search of their father

and saw him lying in the enclosed yard of the accused persons with cut injuries on his

body. However, the version of PW-5 contradicts the evidence adduced by the PWs-1

& 2 making his testimony wholly unreliable.

27. From the evidence of PW-1 it has clearly come out that there was enmity

between the family of Raju Nayak and the accused persons and the deceased was

earlier implicated for committing the murder of one Dilip Mahili. The evidence

available on record points towards existence of bad blood between the family

members of the deceased and that of the accused persons. Even if the evidence of

PW-8 is to be taken into consideration, then also there is nothing to show that the

appellant had caused multiple injuries on the body of the deceased with the help of

"katari". As a matter of fact, the post-mortem report Ext-9 mentions of as many as

seven incised injuries in the dead body. Therefore, the version of PW-8 who, has

mentioned about a dao blow, is in clear deviation from Ext-9 as well.

28. From a careful analysis of the evidence brought on record, we find that while

the prosecution has succeeded in proving the fact that the deceased had died a

homicidal death in the wee hours of 15.01.2012 in a plot of land falling under the

Ghuronia Tea Estate, there is no reliable evidence to show that appellant Sonu Nayak Page No.# 21/23

had fatally assaulted the deceased leading to his death. It is the evidence of the I.O.

(PW-9) that accused Bodon Nayak, who was allegedly present in the place of

occurrence, had informed the police about the incident. Statement of Bodon Nayak

was also recorded by the police wherein he has stated to have seen the occurrence.

However, surprisingly, Bodon Nayak has not been called as a prosecution witness.

29. We also find from the testimony of PW-8 that the "katari" i.e. the weapon

seized by the I.O. was handed over to the police by the accused Sonu Nayak himself.

It is not the case of the prosecution that the weapon was seized by the police after

discovering the same on being lead by the appellant nor did the appellant make

any confession. Therefore, if the appellant had in fact assaulted the deceased with

the "katari" (knife) then there is no reason as to why he would himself produce the

"katari" to the I.O. allowing it to be seized. In the light of the above circumstances,

we also find from the cross-examination of the I.O. that the defence side had made

an attempt to project that the "kalam katari" (knife) was used to assault the accused

rather than the deceased. Although the defence side had not adduced any

evidence in this case, yet, from an analysis of the prosecution evidence brought on

record, we do not find any conclusive material to implicate the appellant Sonu

Nayak for committing the murder of deceased Raju Kheruwar.

30. In the case of Sujit Biswas vs. State of Assam reported in AIR 2013 SC 3817,

relied upon by Mishra, the Hon'ble Supreme Court has observed that when two views

are possible on the evidence brought on record the view that is favourable to the

accused should be adopted. From a threadbare analysis of the evidence brought on Page No.# 22/23

record and upon considering the submissions made by learned counsel for the

parties, we are of the considered opinion that the case against the appellant is

based on strong suspicion but the prosecution has failed to prove that the appellant

Sonu Nayak had in fact fatally assaulted the deceased with a knife leading to his

death. If the evidence of PW-8 and the FSL report (Ext-9) is discarded, then in that

event, it would be evident that the evidence lead by the prosecution as regards the

acquitted co-accused persons would be the same as that of the present appellant.

31. We have already held that PW-8 was not a trustworthy witness and Ext-9 did

not conclusively prove that the blood stains allegedly found in the 'katari' as well as

the long pant did belong to the deceased. By taking note of the evidence available

on record the learned trial court had acquitted the co-accused persons due to want

of evidence. We are of the view that in the facts and circumstances of the present

case, the appellant Sonu Nayak is also entitled to similar treatment since the

evidence available against the appellant is generally of the same nature.

32. For the discussions made in the foregoing paragraphs, we are of the view that

there is reasonable doubt as regards the involvement of the appellant Sonu Nayak in

committing the murder of the deceased. Therefore, giving the benefit of doubt to the

appellant, we hereby set aside the impugned judgment and order dated 24.01.2018

and acquit the appellant Sonu Nayak of the murder charge.

We are informed that the appellant is presently in Jail. We, therefore, direct that

the appellant Sonu Nayak be forthwith released from Jail unless his custodial

detention is found to be necessary in connection with any other proceeding.

Page No.# 23/23

The appeal stands allowed.

Send back the LCR.

JUDGE JUDGE

T U Choudhury

Comparing Assistant