Gauhati High Court
Crl.A./20/2018 on 3 March, 2021
Page No.# 1/22
GAHC010001402017
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
CRL.A No. 20 of 2018
1. Sri Adalat Prasad, age 87 years
Son of- Sri Sabujee Prasad
2. Sri Baliram Prasad, age 85 years
Son of- Sri Sabujee Prasad
3. Sri Buddhi Ram Prasad, age 83 years
Son of- Sri Sabujee Prasad
All are Residents of Village- Rangnagar, P.S. Hawraghat,
District- Karbi Anglong, Assam.
--------------------Appellants
-VERSUS-
1. State of Assam
2. Sri Khusnarayan Chouhan,
Son of- Sri Swami Narayan Chouhan,
Resident of- Rangnagar, P.S. Hawraghat,
District- Karbi Anglong, Assam.
Pin- 782481
--------------------Respondents
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:: BEFORE::
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
For the Appellants : Mr. J. I. Borbhuiya Adv.
: Mr. L. Mohan, Adv.
For the Respondent(s) : Ms. B. Bhuyan, Addl. P.P.
Date of Hearing : 25.01.2021.
Date of Judgment : 03.03.2021.
JUDGMENT & ORDER(CAV)
(Soumitra Saikia, J)
Heard Mr. J. I. Borbhuiya, learned counsel assisted by Mr. L. Mohan, learned counsel
for the appellant as well as Ms. B. Bhuyan, learned Additional Public Prosecutor for the State
of Assam.
2. The present appeal has been preferred by the 3(three) accused persons, namely, 1. Sri
Adalat Prasad, 2. Sri Baliram Prasad and 3. Sri Buddhi Ram Prasad, all sons of Sri Sabujee
Prasad, residents of Village Rangnagar, P.S. Hawraghat, District- Karbi Anglong, being
aggrieved the Judgment dated 20.11.2017 passed by the Sessions Judge, Diphu, Karbi
Anglong, Assam.
3. By the said judgment, the learned Sessions Judge, Diphu convicted the 3(three)
accused persons under Section 302 of Indian Penal Code and sentencing them to undergo
Rigorous Imprisonment for Life and a fine of Rs.5,000/-(Rupees Five Thousand) only each
and in default to undergo Simple Imprisonment for 6(six) months, Rigorous Imprisonment for
6(six) months under Section 447 of Indian Penal Code, Rigorous Imprisonment for 3(three)
months under Section 323 of Indian Penal Code and Rigorous Imprisonment for 1(one) year
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under Section 324 Indian Penal Code each. The sentences were directed to run concurrently.
The accused No. 1 is in Jail custody whereas the accused Nos. 2 and 3 have, in the
meanwhile, been permitted to remain on previous bail.
4. The prosecution case, as put up, before the trial Court is that an FIR was lodged by the
informant, Sri Khusnarayan that on the morning on 01.11.1987 at about 5:00 a.m., the
persons, namely, (1) Sri Adalat Prasad, (2) Sri Baliram Prasad, (3) Sri Buddhi Ram Prasad, (4)
Sri Chakal Dew Prasad, (5) Sri Sewjee Pathak (Master), (6) Sri Sitaram Chouhan and (7) Sri
Khunrika Chouhan trespassed into the land of the informant and killed his mother, Lasia Devi
by stabbing her with spears they had carried with them and also stabbed his father, Sri
Swami Narayan Chouhan and elder brother, Kishore Chouhan with spears and left them in a
dying state. The written FIR was initially lodged in Bokalia Out-Post and the same was,
thereafter, forwarded to Howraghat Police Station. The written FIR was duly accepted and
registered as Howraghat Police Station Case No. 140/1987 under Sections
147/148/447/326/302 Indian Penal Code. Upon investigations by the Police, charge-sheet
was filed against the 3(three) accused persons. The charges were framed against the accused
persons for offences committed under Section 147/323/326/304 (II) IPC. Subsequently, the
charges were altered as 447/323/326/302 IPC. The particulars of the charges were duly read
over and explained to the accused persons to which they pleaded not guilty and claimed to
be tried. The prosecution presented as many as 8(eight) witnesses in support of their case.
The defence did not put up any witness. The accused persons were examined under Section
313 Cr.P.C. and their plea of defence was total denial.
5. P.W.1, Sri Khus Narayan Chouhan is the informant of the case. In his deposition, he
stated that on 01.11.1987 at about 5:30 a.m., the accused persons started constructing a
house over a plot of land belonging to his family. The plot was adjacent to their house. His
father, mother and elder brother Kishore went to the construction to enquire in respect of the
matter. The informant also followed them. As soon as his parents and elder brother arrived at
the spot, the accused No. 1, Adalat Prasad threw a spear at his mother as a result of which
she suffered grievous injuries and later succumbed to the injuries sustained. The accused No.
2, Bali Ram Prasad injured his father by spear. The accused No. 3, Buddhi Ram Prasad injured
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his elder brother-Kishore. The material exhibits 1 and 2 are 2(two) Jathi (spear) seized by the
police which belonged to the accused persons with which his mother and father were injured
were identified by the P.W.1. After the incident, the accused persons fled away with the spear.
P.W.1 testified that he saw the incident with his own eyes and raised alarm. Many people
gathered there. The villagers helped them by taking the dead body of the mother and the
injured persons by a cart to the Bokalia Hospital. Thereafter, P.W.1 filed his FIR and then the
Police came, made enquiries and conducted inquest over the dead body.
5.1. In his cross-examination, P.W.1 stated that the plot where the house was constructed
is about 200 Nals away from his house. He deposed that dispute existed between his father
and the accused persons before the incident. He further deposed that the incident was
witnessed by Ramnidhi Chouhan and Rambadan Chouhan of the village. He stated that Adalat
Prasad attacked with a spear and the material exhibit was handed over to the Police. He
denied the suggestions that the newly constructed house was not adjacent to their house. He
also denied the suggestions that Ramnidhi Chouhan and Rambadan Chouhan were not
present at the time of the incident or that the incident did not take place. He denied the
suggestion that no one saw the incident. He denied the suggestions that he tried to involve
the accused persons by giving a false case. He also denied that what he stated on the
previous date in his examination-in-chief was false.
6. P.W.2, Swaminath Chouhan is one of the injured persons and the father of the
informant and the husband of the deceased. He deposed in his evidence that the accused
persons were his neighbours. About 9-10 years back, the accused persons forcibly occupied
his land, which is about 10(ten) bighas situated at Rangnagar Area. It was cultivable land
where sugarcane was grown. The said land was under his occupation for about 15(fifteen)
years from the date of the incident. P.W.2 deposed that on the date of incident he noticed
three accused persons were constructing temporary house on the said land. He accompanied
by his wife Lasia Devi and his elder son Kishore Chouhan rushed to the site. The accuseds
were asked to stop construction work but they did not respond. By the time public gathered.
The accuseds attacked them with spear. P.W.2 was badly wounded by Baliram. Then, Adalat
Prasad hit his wife (P.W.2's wife) at her chest with a spear and she died on the spot. After the
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incident, the village people took them on a Bullock Cart to their home and then to the Bokalia
Out Post and from there to the Diphu Civil Hospital. Thereafter, P.W.1, Khus Narayan
Chouhan, his younger son filed the FIR.
6.1. In his cross-examination, P.W.2 mentioned that because of land disputes there was
enmity between him and the accused persons. P.W.2 in his cross-examination testified that
many villagers saw the incident but he cannot remember the names of all. He, however,
mentioned that Ramnidhi Chouhan, Rambadan Chouhan and one lady saw the incident. He
testified that the incident occurred early in the morning at about 5 a.m.
7. P.W.3, Ramnidhi Chouhan in his deposition stated that Khus Narayan Chouhan and his
family members were his neighbours. He also knew Lasia Devi, who was killed on that day of
the incident. On the date of occurrence he was at his home when he heard hue and cry in
P.W.2's land. So he went there and saw the accused persons digging land for constructing
house there. He saw the victims, namely, Lasia Devi, Swaminath and Kishore being attacked.
After that the accused persons fled away and the weapons used were left on the Bullock Cart.
He identified his signature on the seizure list. He also deposed that the disputed land was
Swaminath's land and the accused tried to possess the said land forcibly.
7.1. In his cross-examination, he testified that he had land disputes with the accused. He
testified that Swaminath is not related to him and that the incident occurred at about 5:00
a.m. when he was in the house and that the place of occurrence is visible from his house
which at a distance of 300/350 ft. from his house. The incident took place after his arrival at
the place of occurrence at about 5:30 a.m. He testified that he did not intervene and that at
the place of occurrence Swaminath, Laisia Devi and Brijkishore were present along with one
co-villager, Badan Chouhan. He testified that Brijkishore Chouhan (P.W.5) was present in
Court. He denied the suggestion that he did not see the occurrence or the incident. He also
denied the suggestions of the accused persons were not present there at the time of
occurrence.
8. P.W.4 in his deposition identified the accused persons in the dock who are from his
Basti. He deposed that Swaminath as his father, Khus Narayan Chouhan and Brijkishore are
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his brothers and Lasia Devi was his mother. On the day of the occurrence, he was at home.
He deposed that the accused persons constructed the house on their land during the night.
In the morning, people saw it and his father went to the place of occurrence along with his
2(two) brothers. He went with his mother. He deposed that Adalat Prasad threw spear on his
mother, Lasia Devi who died immediately. He also deposed that Bali Ram Prasad who was
also present at the dock, threw the spear on his father and the third one attacked his brother
with a weapon. He deposed that seeing the gathering including Ramnidhi Chouhan,
Rambadan Chouhan and Narsingh, the accused persons fled away. All the injured persons
were taken to Bokalia Out Post in a Bullock Cart. The village people took the dead body of
their mother back to their home. In the evening, the Police came to the place of occurrence
and seized the spear and also examined him.
8.1. In his cross-examination, he denied the suggestion that no one except the family
members saw the incident on the date of the occurrence. He denied the suggestions that
Ramnidhi Chouhan and Rambadan Chouhan were not present at the place and time of
occurrence. He also denied the suggestion that on the day of occurrence at about 5 a.m.,
Ramnidhi Chouhan and Rambadan Chouhan were not present in their house.
9. In his deposition, P.W.5, Brijkishore Chouhan who is the elder son of P.W. 2-
Swaminath Chouhan stated that on the date of occurrence i.e. 01.11.1987 he saw accused
persons constructing the temporary house on their land. He, his father and his mother went
to them and asked them not to construct. The accused persons did not agree to it and
threatened them. While they (P.W.5, his father and mother), insisted accused No. 1, namely,
Adalat Prasad killed his mother with spear. Budhiram injured his father with spear. Buddhiram
also injured P.W.5 with spear. Thereafter, miscreants fled away. He deposed that the village
people including Ramnidhi, Haribhajan and others came. He deposed that the complaint/FIR
was lodged at Howraghat Police Station by his brother-Khus Narayan Chouhan.
9.1. In his cross-examination, he maintained his deposition made examination in-chief. He
testified that he was in the place of occurrence and he was injured. He testified that Ramnidhi
Chouhan and Rambadan Chouhan who are his co-villagers came to the place of occurrence
and then the accused persons were not available on the place of occurrence. By the time, the
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villagers were arrived, the accused persons fled away.
10. P.W.6 is Anirudh Chouhan. He identified accused persons in the dock who are nearby of
his father-in-law's house. He deposed that Khus Narayan Chouhan is his brother-in-law and
Swami Narayan is his father-in-law. He went to the place of occurrence after about 4(four)
days and the place of occurrence is 16/17 Km. away from his place.
10.1. His cross-examination was declined.
11. P.W.7 is the Investigating Officer who was assigned the investigation in respect of the
case and who was handed over the investigation of the case by his predecessor for further
investigation. He examined the injured Swaminath Chouhan as a witness. He collected the
post-mortem report and having found prima facie, materials against the accused persons, he
submitted the charge-sheet. In his cross-examination, he stated that he did not examine
further and one Suresh Nath came to him and he was examined as prosecution witness of
Bokalia Out Post.
12. P.W.8, Dr. Tapan Singh Ingti who was the Superintendent of Diphu Civil Hospital. He
conducted the post-mortem on the dead body which was brought to the hospital by a
Constable and one relative. The dead body was identified by Khus Narayan Chouhan. After
examination, he noted the following:-
(i) A female dead body wearing Sari and Blouse of about 45 years of
age. Sari was blood cotted. mouth partially open and eyes closed.
There was deep penetrating wound of about 1" over the left side of
breast piercing oval in shape abrasion of ¼" x ¼" over the right leg.
Others normal.
(ii) On dissection deep penetrating wound oval in shape seen pierced
in the right ventricle of the heart and deep penetrating wound over
the left breast.
(iii) Cranium and spinal canal are normal, abdomen empty.
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13. After examination, he gave his opinion that the death of the person was due to
deep penetrating wound which is oval in shape over the left breast piercing over
the right ventricle. Injury was anti-mortem in nature and death was due to shock
and hemorrhage and cardio Respiratory failure due to heavy sharp cutting injury.
He, thereafter, prepared the report and submitted it to the Police Station. He opined that the
death of the deceased was due to shock and hemorrhage due to injuries mentioned in the
report.
14. In the statement under Section 313 Cr.P.C. before the Police, the accused persons put
up a case of total denial. The trial Court below posed elaborate questions with regard to the
incident, however, the accused persons denied their involvement and did not offer any other
explanation. On these evidences, the learned Sessions Judge proceeded to hold the accused
persons guilty and convicted them of the offences alleged. The accused persons were ordered
to suffer Rigorous Imprisonment of life and to pay a fine of Rs.5000/- i/d SI for 6 (six)
months under Section 302 of IPC, Rigorous Imprisonment of 6 (six) months under Section
447 of the IPC, Rigorous Imprisonment of 3 (three) months under Section 323 of the IPC and
Rigorous Imprisonment of 1 (one) year under Section 324 of the IPC each. The sentences
were directed to run concurrently.
15. The learned counsel appearing for the appellants submits that the Judgment of the
Sessions Court is not based on evidences and at least without there being any convincing
evidences in respect of any of the accused connecting them to the offences alleged, the
learned Sessions Court, Diphu delivered the judgment held the charges proved and convicted
the accused persons. The learned counsel for the appellants therefore, submits that the
Judgment under Appeal should be interfered with, set aside and quashed.
16. The learned counsel for the appellants submit that the whole case hinges on the
evidence of P.W.3 who, however, made contradictory statements and therefore, the same is
not sufficient to convict the accused-appellants.
17. The learned counsel for the appellants submits that the impugned judgment of the trial
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Court is vitiated both on account of wrong appreciation of evidences adduced by the
witnesses as well as on account of the procedural irregularities committed by the prosecution.
The impugned judgment was rendered without taking into account, those procedural lapses
in the investigation conducted. In view of the lapses on the part of the prosecution, the
investigation and the consequential trial has not been fair and proper as per law and thereby
it has seriously prejudiced the rights of the appellants.
18. The learned counsel for the appellants submits that the inquest conducted on the
deceased is not as per the provisions of Section 176 Cr.P.C. According to the learned counsel
for the appellant, it is only a Magistrate who is authorized under the provisions of Section 176
to conduct an inquest. However, in the present case as is evident from the record, it was the
SI of Bokolia Police Out Post who conducted inquest on the body of the deceased-Lasia Devi,
wife of Swaminath Chauhan resident of Rangnagar, Howraghat. The learned counsel for the
appellants submits that the post-mortem report was also not exhibited nor proved by the
medical expert during the trial. Consequently, any reliance/reference to the post-mortem
report and/or the inquest which are not conducted as per law cannot be permitted as the
same is prejudicial to the appellants. The trial Court could not have relied upon the post-
mortem without the same being duly proved during the trial. The learned counsel for the
appellants further submits that the place of occurrence shown in the sketch map produced
during the trial contradicts the oral evidences adduced by the prosecution witnesses. That
apart, the sketch map is not reliable as the index on the sketch map does not pertain to the
sketch map.
19. The learned counsel for the appellant further submits that no land documents were
presented during the trial to support the deposition of the witnesses that there was any land
dispute between the P.W.2 and the accused persons. In the absence of such evidences, the
deposition of the Prosecution Witnesses regarding existence of land disputes between the
P.W.2 and the appellants cannot be relied upon to attribute any motive to the appellants for
the offences alleged. The further contention of the learned counsel for the appellants is that
seizure witnesses were not summoned by the prosecution. He also submits that the FSL
report of blood stains was not conducted in order to come to a conclusion that the blood
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stains on the spear or the stick, alleged to be the weapons used in the commission of the
offence, pertain to the deceased and/or the injured persons. He further submits that a cross
FIR was also lodged by the appellants, however, the same is not reflected in the judgment.
The learned counsel for the appellants also submits that although the FIR reflects the name
of the deceased as Lasia Devi, the post-mortem report reveals that the name of the deceased
recorded as "Laxmi Devi". He further submits that the post-mortem report does not pertain to
the deceased, namely, Lasia Devi and therefore the injuries sustained by the deceased cannot
be held to have been proved. He submits that all the eye-witnesses presented by the
prosecution and on the basis of which the trial Court convicted the appellants, are all related
witnesses and therefore they are wholly unreliable. Therefore, the conviction of the
appellants based solely on the evidences of those witnesses is highly improper and irregular.
He also submits that the testimony of P.W.1 that "Ramnidhi Chouhan" and "Rambadan
Chouhan" of their village had also witnessed the incident and saw the accused persons
including the accused No. 1 assaulting the P.W.1, his father and mother and as a
consequence of which his mother died because of the injury sustained, is belied by the
evidence of P.W.5 who is the elder brother of the informant P.W.1 and also the son of P.W.2
and the deceased.
20. The learned counsel for the appellant submits that in the cross-examination, P.W.5
deposed that when the villagers, "Ramnidhi Chouhan" and "Rambadan" came to the place of
occurrence, the accused persons were not available at the place of occurrence. Therefore, the
evidences of P.W.1 and P.W.2 are totally unreliable. The conviction by the learned Trial Court
based upon the evidences of P.W.1, P.W.2 inter-alia, is highly improper and unjust and the
conviction therefore should be interfered with set aside and quashed.
21. In support of his contentions, the learned counsel for the appellant refers to the
Judgments of this Court in Sitesh Kanu and Ors. -Vs- State of Assam reported in 2014 (1)
GLT 653 and Sansai Gowala and Ors. -Vs- State of Assam reported in 2008 (2) GLT 556.
These Judgments have been pressed into service by the learned counsel appearing for the
appellants in support of his contentions that the inquest proceeding not conducted as per
provisions of law is held to be illegal and has been deprecated by the Division Bench of this
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Court. The learned counsel for the appellant relies on the Judgment of Sansai Gowala (supra)
rendered by another Co-ordinate Bench of this Court in support his contention that the
contradiction in the depositions of the eye-witnesses and discrepancies in the explanation of
circumstances, under which the eye-witnesses had seen the accused persons, makes the
testimony of the eye-witnesses unreliable. Therefore, conviction of the accused persons on
the basis of such unreliable eye-witnesses is contrary to law and, therefore, the impugned
judgment under appeal should be interfered with and set aside and quashed and the accused
persons be directed to be set free.
22. Per contra, Ms. B. Bhuyan, learned Additional Public Prosecutor submits that this is a
case where there are 5(five) eye-witnesses to the offences committed by the accused
persons. The learned Additional Public Prosecutor submits that P.W.1 to P.W.5 all are eye-
witnesses and who were also present in the place of occurrence and who had seen the
accused persons committing the offences, especially, Accused No. 1-Adalat Prasad, hurling
the spear because of which Lasia Devi sustained grievous injuries and succumbed to the
injuries sustained.
23. The learned Additional Public Prosecutor submits that although the post-mortem was
not exhibited, the medical expert, namely, the doctor duly deposed and testified regarding
the injuries sustained by the deceased and his opinion regarding the cause of death. The
medical expert (P.W.8) was not cross-examined by the defence. She, therefore, submits that
it is too belated in a day today to question the post-mortem report when the evidence of the
medical expert was not questioned by the defence during the trial. She submits that even
assuming though not admitting that the post-mortem report was not proved, the absence
thereof by itself can not absolve the accused persons of their guilt of commission of the
alleged offences in view of the testimony of the eye-witnesses who had seen the accused
causing injuries on P.W.2, P.W.5 and one Lasia Devi who later on succumbed to the injury
sustained, have categorically alleged that the accused persons were involved in the offences
alleged.
24. The learned Additional Public Prosecutor submits that greater part of the trial was
conducted at a time when the separation of judiciary was not completed in the district of
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Karbi Anglong. She submits that it is only pursuant the order dated 16.09.2013 of this Court
in WP(C) No. 5873/2006 that the separation of judiciary in the District of Kamrup, Assam was
initiated. Therefore, at the time of adducing evidences in the trial, the same were before the
learned DC/ADC who was also functioning as the Sessions Judge of the district prior to the
separation of judiciary. She submits that the concerned Officer adjudicating the Trial at the
relevant point in time were not Officers who were trained in law like Judicial Officers and,
therefore, there could be some lapses of procedure and form which may be noticed during
the trial.
25. The learned Additional Public Prosecutor, therefore, submits that the depositions were
recorded by the Administrative Officers of the executive functioning as Judicial Officers till the
separation of judiciary was effected. Therefore, any defect pertaining to the form and
procedure noticed may be condoned. The learned Additional Public Prosecutor submits that in
view of the testimony of the witnesses who were injured in the incident, wherein the accused
persons have been specifically named, any lacuna/prosecution in the form and/or the
procedure, which may be noticed, may be condoned.
26. The learned Additional Public Prosecutor submits that the testimonies of the P.W.1 to
P.W.5 gives an eye account of the commission of the offences by the accused persons on the
date of occurrence and at the place of occurrence. Therefore, the lacuna if any in the
prosecution case put up by the prosecution, in view of the ocular evidences of P.W.1 to P.W.5
should be ignored as the guilt of the accused persons have been proved beyond the
reasonable doubt. The learned Additional Public Prosecutor submits that upon scrutiny of the
evidences independently, if the guilt of the accused is proved beyond reasonable doubt, then
any fault in the prosecution and/or the investigation in respect of the procedure and form
should be ignored.
27. In support of her contentions, the learned Additional Public Prosecutor relies upon the
following judgments:-
1. Pradumansinh Kalubha -Vs- State of Gujarat, 1992 Supp (2) SCC
62 para-19
2. State of Uttar Pradesh -Vs- Naresh and Ors., (2011) 4 SCC 324
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3. Abdul Sayeed -Vs- State of Madhya Pradesh WITH Rafique -Vs-
State of Madhya Pradesh WITH Rais Alias Toun and Ors., -Vs- State
of Madhya Pradesh, (2010) 10 SCC 259
4. Suresh Sitaram Surve -Vs- State of Maharashtra, (2002) 10 SCC
28 para-6
5. State of Karnataka -Vs- K. Yarappa Reddy, (1999) 8 SCC 715
para-19.
28. On the above submissions, we now examine the judgment of the trial Court dated
20.11.2017 impugned in the present Criminal Appeal.
29. Lower Court records called for has also been duly perused.
30. As per the FIR, the incident took place on 01.11.1987 at about 5 a.m. under the
Howraghat Police Station district Karbi Anglong. The place of occurrence was Rangnagar, Niza
Langfer, 25 km. east of the Bokalia Out Post. The FIR was lodged was by one Khus Narayan
Chouhan (P.W.1) to the effect that on 01.11.1987 at around 5 a.m., three accused person
who are residents of Rangnagar trespassed into their land and killed their mother Lasia Devi
by stabbing her with spear they had carried with them. They had also stabbed the informant's
father Sri Swaminath Chouhan (P.W.2), his elder brother- Brijkishore Chouhan (P.W.5) with
spear and left them in a dying state. The FIR was subsequently received at the Howraghat
Police Station and was registered as Howraghat P.S. No. 141/1987 under Sections
147/148/447/326/302 IPC. Pursuant thereto the Police conducted the investigations and
submitted charge-sheet in respect of the present accused persons. The matter, thereafter,
proceeded to trial and by the Judgment dated 20.11.2017, the Sessions Judge, Diphu, Karbi
Anglong, Assam in Sessions Case No. 56/1988(old) 303/2017(New) corresponding to G.R.
Case No. 594/1987 convicted the accused persons and sentenced them to undergo Rigorous
Imprisonment for Life and to pay a fine of Rs.5000/- (Rupees five thousand) only each in
default Simple Imprisonment for 6(six) months under Section 302 Indian Penal Code,
Rigorous Imprisonment of 6(six) month under Section 447 Indian Penal Code, Rigorous
Imprisonment of 3(three) months under Section 323 Indian Penal Code, Rigorous
Imprisonment of 1(one) year under Section 324 Indian Penal Code each. The sentences were
directed to run concurrently.
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31. In the case put up by the prosecution, there were 8(eight) witnesses and evalution of
the testimony of the witnesses as available in the LCR, reveals that P.W.1, P.W.2, P.W.3, P.W.4
and P.W.5 have categorically testified against the accused persons of being involved in the
incident leading to the injury of the P.W.2 and P.W.5 and the death of one Lasia Devi wife of
P.W.2, and mother of the informant (P.W.1) and P.W.5. The ocular evidences adduced by
P.W.1 to P.W.5 could not be shaken by the defence in their cross-examination. The weapons
used in the incident, namely, the spears were also recovered by the Police. The medical
expert, namely, Dr. Tapan Singh Ingti, P.W.8 was also examined. In his deposition, he referred
to the injuries sustained by the deceased which was duly mentioned in his opinion. Pursuant
to his examination he opined his report as under:-
"The death of the person was due to deep penetrating wound which is
oval in shape over the left breast piercing over the right ventricle.
Injury anti-mortem in nature and death also due to shock and
hemorrhage and cardio Respiratory failure due to heavy sharp cutting
injuries."
32. After completion of his examination, he submitted the report to the police. It is also
noticed that the defence declined to cross-examine the medical expert. Consequently, the
evidence of the medical expert in his examination-in-chief is uncontroverted.
33. A scrutiny of all the evidences reveal that the incident occurred on 01.11.1987 and on
the evidences adduced by the prosecution along with medical opinion they have been able to
establish a case that the accused persons were seen assaulting the P.W.2 and P.W.5 and the
deceased-Lasia Devi on the date of occurrence and at the place of occurrence. Because of the
assault by the accused persons injuries were sustained by P.W.2 and P.W.5. The said
witnesses had categorically identified the accused as persons who inflicted the injuries on
them because of which medical treatment was required. All the ocular witnesses had
categorically testified that the accused No.1-Adalat Prasad was seen to have hurled the spear
at Lasia Devi and she succumbed to the injuries sustained. The medical evidence and the
reference to the injuries sustained by the deceased as is evident from the medical evidence,
supports the evidence as testified by the eye-witnesses.
Page No.# 15/22
34. In view of such specific ocular evidences duly supported by the medical evidence, there
is no reasonable doubt which can arise to arrive at a conclusion towards the guilt of the
accused persons.
35. The Judgment pressed into service by the learned counsel for the petitioner, in view of
the facts and circumstance of this case, does not come to the aid of the learned counsel for
the appellants. In the judgment rendered by the Co-ordinate Bench of this Court in the case
of Sitesh Kanu and Ors., it is seen that in that case, the inquest of the dead body was not
conducted in the spot but the dead body was requisitioned to the Police Station. That apart,
this Court in the said judgment, noticed several discrepancies in the investigations conducted
by the Police and consequently come to render a finding that the accused persons therein
were implicated for vindictive reasons. In the said judgment, this Court came to a finding on
facts that the inquest proceedings were held in an illegal manner and that the dead body was
requisitioned to the Police Station from the spot. This Court come to a finding that the inquest
was not held on the spot only to cover up glaring illegalities.
36. In the context of the present appeal, there are no such facts pleaded before the trial
Court by the accused persons/appellants. The learned counsel for the appellants submits that
the inquest on the dead body was conducted by the Police which is contrary to the provisions
of Section 174 of the Cr.P.C. Indeed, it is seen from the LCR that inquest on the deceased,
namely, Lasia Devi was conducted by the Police. However, it is to be mentioned here that an
inquest is held only to investigate into and draw upon the report of an apparent cause of
death, describing the wound found on the dead body and/or the manner or the possible
weapon used in causing the death to the deceased. Such details as may be entered into the
inquest are primarily to corroborate with the medical evidences and the post-mortem which
may be conducted later.
37. It is also to be mentioned here that an inquest report is not substantive evidence but
may be used under Section 145 of the Evidence Act for cross-examination for corroborating
the testimony of any witnesses. The inquest is primarily to ascertain prima facie nature of
death to find out whether there are injuries on a dead body. The inquest cannot be treated as
a statement of the witness recorded under Section 161 Cr.P.C.
Page No.# 16/22
38. In the context of inquest, the Judgments of the Apex Court in the case of Guiram
Mondal -Vs- State of West Bengal reported in (2013) 5 SCC 284 the relevant paragraphs are
extracted herein below:-
12. The inquest report normally would not contain the manner in
which the incident took place or the names of eyewitnesses as well as
the names of accused persons. The basic purpose of holding an
inquest is to report regarding the cause of death, namely,
whether it is suicidal, homicidal, accidental, etc. Reference may
be made to the judgments of this Court in Pedda Narayana v. State of
A.P. [(1975) 4 SCC 153 : 1975 SCC (Cri) 427] and Amar
Singh v. Balwinder Singh [(2003) 2 SCC 518 : 2003 SCC (Cri) 641] .
13. In Radha Mohan Singh v. State of U.P. [(2006) 2 SCC 450 : (2006)
1 SCC (Cri) 661] this Court held that the scope of inquest is limited
and is confined to ascertainment of apparent cause of death. Inquest
is concerned with discovering whether in a given case the
death was accidental, suicidal or homicidal, and in what
manner or by what weapon or instrument the injuries on the
body appear to have been inflicted. The details of overt acts need
not be recorded in the inquest report. The High Court has rightly held
that the manner and approach of the trial court in disbelieving the
prosecution story by placing reliance on the inquest report was
erroneous and bad in law.
(Emphasis supplied)
39. In this context, it is also to be mentioned here that the separation of judiciary in the
district of Karbi Anglong took effect only pursuant to the order dated 16.09.2003 passed by a
Division Bench of this Court in WP(C) No. 5873/2006. By the said order, this Court held that
"Bengal, Agra and Assam Civil Courts Act, 1887" to be applicable to the districts of Dima
Hasao and Karbi Anglong in the State of Assam and as well as to the States of Arunachal
Pradesh and Nagaland. This Court further held the CPC and Cr.P.C. are also applicable to
regularly constituted Civil and Criminal Courts. Under the circumstances, the greater part of
the trial including recording of evidences was conducted before the Court of Additional
Deputy Commissioner or Deputy Commissioner, Karbi Anglong, prior to the separation of
judiciary from the Executive in subsequent to the order dated 16.09.2013 passed in WP(C)
Page No.# 17/22
No. 5873/2006. Inquest was also conducted prior to separation of Judiciary. As such, some
discrepancies in respect to the form and procedure may have crept in as the Presiding Judge
was not trained as a Judiciary Officer at the relevant point in time. However, such lacunae
that may be noticed during the investigation and/or the trial viz-a-viz the form and procedure
prescribed under Cr.P.C., will not obliterate the specific ocular testimony of the witnesses who
had clearly identified the accused persons committing the offences at the place of occurrence
and on the date and time of occurrence. The appellants are certainly entitled to be given the
due benefit provided of course they are able to raise specific instances of such lacunae in the
form and procedure, which have manifestly caused them prejudice and/or affected their
rights guaranteed under the law.
40. In respect of the judgment of Sansai Gowala (Supra) being relied upon by the learned
counsel for the appellant, in the facts of that case the Division Bench of this Court referred to
the retraction of the confessional statement earlier made in the statements recorded under
Section 313 Cr.P.C. In the facts of that case, this Court clearly held that the earlier confession
made by the accused was made out of the fear of the Police and, therefore, he had retracted
his confessional statement made earlier. On these facts, the Division Bench did not rely upon
the confessional statements, made by the accused therein, which was subsequently
withdrawn, to sustain conviction of the accused. The Division Bench in the said judgment on
the grounds and reasons mentioned in the judgment held that the prosecution had failed to
prove its case in its true perspective to arrive at the conviction under Section 302 IPC.
41. In the facts of the present proceedings, it is respectfully pointed out that the judgment
rendered by this court in Sansai Gowala (Supra) and relied upon by the learned counsel for
the Appellant would not be applicable as there are no instances of retraction of any
statements made by any of the accuseds in the present proceeding.
42. Insofar as the lacuna in the prosecution case is concerned, the Apex Court in the case
of State of Karnataka -Vs- K. Yarappa Reddy, reported in (1999) 8 SCC 715 held as under:-
"19. But can the above finding (that the station house diary is not
genuine) have any inevitable bearing on the other evidence in this case?
If the other evidence, on scrutiny, is found credible and acceptable,
Page No.# 18/22
should the Court be influenced by the machinations demonstrated by the
investigating officer in conducting investigation or in preparing the
records so unscrupulously? It can be a guiding principle that as
investigation is not the solitary area for judicial scrutiny in a criminal trial,
the conclusion of the court in the case cannot be allowed to depend
solely on the probity of investigation. It is well-nigh settled that even
if the investigation is illegal or even suspicious the rest of the
evidence must be scrutinized independently of the impact of it.
Otherwise the criminal trial will plummet to the level of the
investigating officers ruling the roost. The court must have
predominance and pre-eminence in criminal trials over the action taken
by investigating officers. Criminal justice should not be made a
casualty for the wrongs committed by the investigating officers
in the case. In other words, if the court is convinced that the
testimony of a witness to the occurrence is true the court is free
to act on it albeit the investigating officer's suspicious role in
the case."
(Emphasis Supplied)
43. The contentions of the learned counsel for Appellant that the testimony of P.W.1, P.W.2
and P.W.5 ought not to be relied upon as they are related witness, also cannot be accepted as
the evidences of P.W.2 and P.W.5, being injured witnesses, their evidence will have to be
given sufficient importance. Merely because they are related, their evidences cannot be
thrown out. The Apex Court has upheld the importance of the testimony of the injured
witnesses in several judgments. The relevant paragraphs of the judgments are extracted
below:-
In State of Uttar Pradesh -Vs- Naresh and Ors., reported in (2011) 4 SCC
324, the Apex Court held that
"27. The evidence of an injured witness must be given due weightage
being a stamped witness, thus, his presence cannot be doubted. His
statement is generally considered to be very reliable and it is unlikely
that he has spared the actual assailant in order to falsely implicate
someone else. The testimony of an injured witness has its own
relevancy and efficacy as he has sustained injuries at the
time and place of occurrence and this lends support to his
testimony that he was present during the occurrence. Thus,
Page No.# 19/22
the testimony of an injured witness is accorded a special
status in law. The witness would not like or want to let his
actual assailant go unpunished merely to implicate a third
person falsely for the commission of the offence. Thus, the
evidence of the injured witness should be relied upon unless there
are grounds for the rejection of his evidence on the basis of major
contradictions and discrepancies therein."
In the Abdul Sayeed -Vs- State of Madhya Pradesh WITH Rafique -Vs-
State of Madhya Pradesh WITH Rais Alias Toun and Ors., -Vs- State of Madhya
Pradesh, (2010) 10 SCC 259 , the Apex Court had held:-
"30. The law on the point can be summarised to the effect that the
testimony of the injured witness is accorded a special status
in law. This is as a consequence of the fact that the injury to
the witness is an inbuilt guarantee of his presence at the
scene of the crime and because the witness will not want to
let his actual assailant go unpunished merely to falsely
implicate a third party for the commission of the offence.
Thus, the deposition of the injured witness should be relied upon
unless there are strong grounds for rejection of his evidence on the
basis of major contradictions and discrepancies therein."
In Suresh Sitaram Surve -Vs- State of Maharashtra, (2002) 10 SCC 28 the
Apex Court has held as under:-
"6. As rightly observed by the High Court, the trial court was not
justified in discarding the evidence of injured eyewitnesses (excepting
PW 7) in toto on the ground of inimical disposition towards the
accused or the improbability of narrating the details of actual attack.
True, their evidence has to be scrutinized with caution taking into
account the factum of previous enmity and the tendency to
exaggerate and to implicate as many as possible. But on a perusal of
the evidence tested in the light of the broad probabilities, the High
Court was justified in reaching the conclusion that the prosecution
witnesses are natural witnesses and they could not have concocted
the case against the accused without any basis. The fact that the FIR
was lodged almost immediately after the occurrence naming the
appellant as the main assailant lends positive assurance to the
Page No.# 20/22
credibility of the prosecution case as unfolded by the eyewitnesses,
most of whom were injured. Both the trial court and the High Court
found that there was sufficient light emitted by the tubelight in front of
the house to identify the accused who were known persons. The fact
that the incident occurred outside and inside the house cannot be
doubted as there was blood both at the steps where the dead body lay
and inside the house and weapons stained with human blood were
found lying in the adjoining narrow lane and the injuries were found
on almost all the inmates of the house. It is highly unlikely that
within a short time of the occurrence the prosecution party
could have come forward with a false version implicating the
persons who were not at all scene (sic), while leaving out the
real culprits. The eyewitnesses' account of the attack by the
appellant is quite consistent. Though certain doubts are sought to
be created as to the genesis of the incident and the manner of attack
by taking us through the topography of the scene of offence, we are
not at all convinced that the prosecution case is belied on account of
such factors. The argument that the injuries on the appellant were not
explained by the prosecution and therefore the prosecution case of the
appellant being an aggressor is open to doubt has no substance at all.
In the course of examination of PW 5 under Section 313 CrPC, the
appellant while denying his presence in the course of the incident had
stated that while returning home from his vegetable shop, he was
assaulted by a crowd in a passage but he could not recognize them on
account of darkness. Thus, he does not attribute the injury to the
deceased or the prosecution party nor does he suggest that he acted
in self-defence. While on this aspect, the High Court also observed
that the possibility of the accused being injured when the deceased or
the prosecution witnesses tried to resist the attack cannot be ruled
out. Considering the facts and evidence on record, we affirm the
finding of the High Court that the appellant in the company of others
did attack the deceased with a dangerous weapon, namely, gupti and
the prosecution case in this regard cannot be thrown out on the
tenuous grounds made out by the trial court."
(Emphasis supplied)
44. The evidences adduced by the witnesses are required to be scrutinized independently.
Any defect in the prosecution case cannot whittle down the importance of evidences adduced
Page No.# 21/22
by witnesses, more particularly, evidences pertaining to the eye-account of the incident by
injured witnesses.
45. In view of the ocular evidences rendered by the witnesses P.W.2, P.W.3, P.W.4 and
P.W.5 and duly supported by the medical evidence adduced by the medical expert P.W.8 as
well as taking into account the weapons used, namely, spear which was duly produced by the
Police during the trial, it is evident that the guilt of accused No. 1- Adalat Prasad as held by
the trial Court is proved beyond the reasonable doubt. We have carefully scrutinized the
Judgment under Appeal by the Trial Court. The Trial Court has correctly appreciated the
evidences adduced in the Trial in so far as the offence alleged with regard to accused no.1 is
concerned. We, therefore, find no infirmity in the conclusion arrived at by the Trial Court
below in convicting the accused no.1 of the offences alleged. We accordingly uphold the
conviction of the appellant no.1 as imposed by the Trial Court.
46. However, in respect of the accused persons no.2 and 3 we disagree with the findings of
the Trial Court below as regards the conviction of the accused persons no. 2 and 3 under
Section 302 of Indian Penal Code. In the absence of any medical reports being presented
during the trial and proved by the prosecution in respect of the injuries sustained by the
P.W.2 and P.W.5, the allegations made against the accused No. 2 and accused No. 3 do not
support conviction under Section 302 IPC.
46.1. There is no cogent evidence to fasten joint liability to the two remaining appellants
along with the appellant, Adalat Prasad, for their conviction under Section 302 of Indian Penal
Code. There is no evidence to show that there was any prior conspiracy or coming together in
their minds to convict the offence under Section 302 of Indian Penal Code. The violent acts of
the appellants are separable caused to different persons with varying degrees. There is no
evidence to show that the two appellants, Baliram Prasad and Buddhi Ram Prasad had acted
conjointly with Adalat Prasad to cause the fatal injury to the deceased Lasia Devi. We
therefore interfere with the conviction under Section 302 of the Indian Penal Code in respect
of Appellant No.2, Sri Baliram Prasad and Appellant No.3 Sri Buddhi Ram Prasad by the
Sessions Court below.
Page No.# 22/22
47. Further, since the injuries caused to P.W.2 and P.W.5 are not proved, conviction of the
appellant nos. 2 and 3 under Section 323/324 of Indian Penal Code is set aside. However, the
convictions under Section 447 of Indian Penal Code in respect of all the Appellants are
sustained.
48. Accordingly, the appellant No. 2 and 3 are directed to undergo the imprisonment as
imposed by the Sessions Court for conviction under Section 447 of the Indian Penal Code.
They will surrender before the Sessions Judge, Diphu, Karbi Anglong upon which they will be
taken into custody. The period already undergone shall be adjusted accordingly. Bail granted
by this Court stands cancelled.
49. In view of the above discussions, this Criminal Appeal (Jail) is partly allowed to the
extent indicated above.
50. Registry is to send back the LCR.
JUDGE JUDGE
Compairing Assistant
