Budheswar Saikia vs The State Of Assam
2021 Latest Caselaw 1198 Gua

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GAHC010002742019




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

                               Case No. : CRL.A(J)/5/2019

            BUDHESWAR SAIKIA
            SIVASAGAR.



            VERSUS

            THE STATE OF ASSAM
            REP. BY PP, ASSAM.



Advocate for the Petitioner   : MR. MRINMOY DUTTA, AMICUS CURIAE

Advocate for the Respondent : PP, ASSAM




             Linked Case : Crl.A./30/2019

            SHRI KAMAL BORAH
            S/O SHRI NILO KANTA BORAH
            R/O BARSAYAK DIBRUWAL
            P.S. AMGURI
            DIST. SIVASAGAR
            ASSAM
            PIN 785683


             VERSUS

            THE STATE OF ASSAM AND ANR
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           REPRESENTED BY PP
           ASSAM.

           2:DHARMA SAIKIA
           S/O LATE KULADHAR SAIKIA
            R/O VILL. BARSAYAK DIBRUWAL
            P.O. CHATAICHIGA
            PIN CODE
           P.S. AMGURI
            DIST. SIVASAGAR
           ASSAM
            PIN 785683
            ------------

Advocate for : MR. U C RABHA Advocate for : PP, ASSAM appearing for THE STATE OF ASSAM AND ANR C. BARUAH, (RESPONDENT NO. 2)

Date of hearing : 11.02.2021 Date of Judgment/Order : 26.03.2021

BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR

JUDGMENT& ORDER Date : 26-03-2021

Heard Mr. M. Dutta, learned amicus curiae appearing for the accused/appellant in Criminal Appeal (J) No. 5/2019 and Mr. U.C. Rabha, learned counsel appearing for the accused/appellant in Criminal Appeal No. 30/2019. Also heard Mr. B. B. Gogoi, learned Addl. P.P., Assam appearing for the State respondent No. 1 as well as Mr. C. Baruah, learned counsel appearing for the informant/respondent No. 2.

2. As the above two appeals are directed against the same judgment and order, this Court proposes to pronounce this common judgment and order.

3. This Jail Appeal is preferred against the judgment and order, dated 18.09.2018, passed by the learned Addl. Sessions Judge, Sivasagar in Sessions Case No. 24(S-S) 2012, whereby each of the accused/appellants is convicted and sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs.5,000/- in default to undergo rigorous Page No.# 3/6

imprisonment for 3 months under Sections 325/34 of the IPC and further, to undergo rigorous imprisonment for 7 years and to pay fine of Rs.10,000/- in default to suffer rigorous imprisonment for 6 months under Sections 307/34 of the IPC.

4. The prosecution case, in brief, is that one Dharma Saikia lodged an ejahar on 14.05.2011 before the Officer-in-Charge of Amguri P.S. alleging that on 13.05.2011, Rintu Saikia went with his companions on board one DI vehicle of co-villager Kamal Borah to Amguri to celebrate the victory of a candidate in election. At around 8.30 p.m., they were returning towards home. After dropping the other companions, Rintu Saikia, Budheswar Saikia and Kamal Saikia went to their respective houses. But instead of finding Rintu Saikia in his house at around 12 o'clock midnight/1 a.m., the neighbouring people recovered Rintu in a ditch in front of Pradip Borah's house in unconscious condition with severe injuries on his person. Later, co-villagers, namely, Sonaram Saikia and Kanpuna Khanikar shifted him to Sivasagar Civil Hospital at Joysagar for treatment and on being referred moved him to Assam Medical College and Hospital ('AMCH' for short) at Dibrugarh for advanced treatment. He came to know from Rintu Saikia, over phone, that the accused/appellants assaulted him by iron rod etc. with an intention to kill him.

5. Based on the above ejahar, Amguri P.S. Case No. 76/2011 under Sections 341/325/307/34 of the IPC was registered and after completion of investigation laid a charge-sheet against the accused/appellants under the aforesaid Sections of the IPC as registered. Thereafter, on committal and being made over for trial of the case, the learned Addl. Sessions Judge, Sivasagar framed charges under the aforesaid Sections of the IPC. The accused/appellants pleaded innocent. In order to establish the charges, the prosecution examined 20 witnesses while the defence cross-examined them. After closing the evidence of the prosecution side, the statements under Section 313 Cr.P.C. were recorded. The accused/appellants reiterated their innocence and declined to examine any witness in defence. Thereafter, the learned trial Court on appreciation of the evidence on record and hearing the learned counsel of both sides convicted and sentenced the accused/appellants as stated above.

6. I have given due consideration to the submissions made by the learned counsel of both sides. Perused records.

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7. Now, let us appreciate the evidence on record.

It is seen that the informant P.W. 1 Dharma Saikia, who is the uncle of the injured (P.W.5) and who did not witness the alleged occurrence, lodged the F.I.R. vide Ext.- 1, based on the initial information given to his family members by P.W. 16 Bipul Khanikar on 13.05.2011 at around 11/12 o'clock, night. On receipt of the information to the effect that his nephew P.W. 5 Rintu Saikia was found lying in a ditch, he along with P.W. 9 Ukheswar Saikia (Gaonburha) and Councillor P.W. 19 Sonaram Saikia rushed to the place of occurrence (Shown in Ext. 6, the sketch map of the place of occurrence) and finding him in injured and unconscious condition shifted him to Joysagar Hospital for treatment and on being referred, he was shifted to the AMCH, Dibrugarh. The remaining part of his evidence so far the same relates to the actual incident is apparently heresay. He, however, recognised Ext. 1, the F.I.R. and Ext. 2, the seizure memo, whereby the police seized one mobile phone handset on being produced by P.W. 9 aforementioned. P.Ws 9 and 19 have corroborated the testimony of P.W. 1.

8. At this stage, this Court finds it apposite to look to the evidence of P.W. 5 Rintu Saikia, the injured. His (P.W. 5) evidence reveals that on 13.05.2011 at around 5.30 p.m., while he was returning home from the market, he came across the accused/appellant Kamal Borah and on request of the latter, both of them along with 8 others went to the house of one Putul Gogoi of Amguri to attend a dinner party boarding a D.I. vehicle driven by said Kamal. Accused Kamal entered into the house of Putul Gogoi of Amguri and returned. All of them attended a dinner at a hotel named 'Barbi Hotel'. Then they left the said hotel at about 9.30/10 p.m. for home. On their way back home, all the companions except he, accused Kamal and accused Budheswar got down from the vehicle and they moved towards home. He was in intoxicated condition and he slept in the vehicle itself. Accused Kamal raised the window shield of the vehicle. The vehicle was not stopped near his house and continued driving of the vehicle until stopped near a jungle. At that place, the accused Budheswar took out a screw driver from the drawer and punched in both of his hands. Thereafter, both the accused persons took out one iron rod measuring about 1 ft. and hit twice on his left hand and accused Kamal hit on his knees by one screw driver. Then he fell unconscious. He regained his consciousness in the AMCH, Dibrugarh. He reported the incident to his relative Page No.# 5/6

people whom he came across at the AMCH. He underwent treatment at the AMCH, Dibrugarh for 15/16 days. He did not find the black T-shirt which he was wearing at the time of the occurrence. He recognised his black T-shirt vide M. Ext.-1.

9. In cross-examination, he, inter-alia, stated that as he was in inebriated condition, he was allowed to sit in the driver's seat. When they all got down in a village, a quarrel took place between Ratneswar and his uncle, accused Budheswar. He denied the defence suggestion that when Ratneswar prepared to assault Budheswar, he got down from the vehicle to save him and he in inebriated condition sustained injuries by fall and then made a false accusation that the accused persons assaulted him due to old enmity.

10. None of the remaining nonofficial prosecution witnesses witnessed the alleged occurrence. The evidence of P.W. 7 Manik Khanikar and P.W. 8 Bichitra Bora show that P. W. 5, the injured was found lying in a ditch near their houses located in village Borsoya at around 11.30/12 o'clock night.

11. Now, keeping in consideration of the nature of evidence tendered by the injured P.W. 5 Rintu Saikia, let us look to the medical evidence of P.W. 18, Dr. Debanga Baruah, the doctor, who examined him in alcoholic condition, on being produced by P.W. 19 (Uncle) and Meena Saikia (Mother) on 14.05.2011 at AMCH, Dibrugarh. He (P.W. 18) found the following injuries on his person-

              ·    Ecchymosis over right sight.
              ·    Multiple abrasions over the right forearm, left hand and left elbow.
              ·    Swelling over the left hand and wrist and left arm and elbow joint.
              ·    Tenderness over the right side of abdomen.

12. According to the doctor, injury was grievous in nature and caused by blunt weapon. Patient was diagnosed with fracture shaft of left humerus with fracture over third and left radius and multiple soft-tissue abrasions over the scalp, upper lip and left arm and forearm, laceration injury over the right kidney.

13. On a conjoint reading of the evidence of P.W. 5, the injured and P.W. 18, the doctor, it is revealed that the occurrence took place when P.W. 5 was in high alcoholic condition. It is needless to mention that high intake of alcohol contributes to increased likelihood of Page No.# 6/6

aggressive or violent behaviour and impair thinking about the consequences of one's overly actions in the social context. The evidence shows that P.W. 5, the injured consumed alcohol in-between 9 to 10 p.m. in the relevant night, that is, just 1 to 2 hours before the occurrence and at a time, when the inebriated condition was at its peak. The doctor's (P.W.

18) evidence, as a whole, gives a clear impression that he (P.W. 5) sustained injuries due to assault by some assailants or caused by fall on some concrete or hard substance during night hours. P.W. 20 S.I. Rajani Kanta Saikia, the investigating officer, contradicted the evidence of P.W. 5 in cross-examination stating that he (P.W. 5) did not state in his (P.W. 5) statement under Section 161 Cr.P.C. that he disclosed before his family members that the accused persons had assaulted him with screw driver and iron rod etc. He (P.W. 20) further stated that P.W. 5 stated before him that the accused persons had assaulted him by a piece of wooden Batten only. In such a contradictory backdrop of evidence, it is certainly difficult to infer beyond doubt the circumstances wherein P.W. 5, the injured sustained the nature of injuries, the doctor (P.W. 18) found on his person, who was admittedly under the influence of high alcohol intake.

14. Therefore, this Court is of the considered opinion that it cannot conclusively be said beyond all reasonable doubt that they were the accused/appellants only who assaulted the injured (P.W. 5).

15. Resultantly, the appeals stand allowed and accordingly, the accused/appellants are acquitted of the charges on benefit of doubt setting aside the impugned judgment and order.

16. Return the LCR.

17. Appeals stand disposed of.

18. Before parting with the record, this court appreciates the valuable service rendered by Mr. M. Dutta learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/- as legal fee be paid to him by the High Court Legal Services Committee upon production of a copy of this judgment and order.

JUDGE

Comparing Assistant