Sri Pranab Dutta vs The State Of Assam And Anr
2021 Latest Caselaw 2633 Gua

                                                                    Page No.# 1/11

GAHC010184942018




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

                                 Case No. : Crl.A./284/2018

            SRI PRANAB DUTTA
            S/O SRI HEM DUTTA, R/O VILL. BAROPAIK GAON, P.O. HATIGORAH
            BALICHAPORI, P.S. JORHAT, DIST JORHAT, ASSAM, PIN 785101



            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY PP, ASSAM

            2:SRI DEBOJIT GOGOI
             S/O SRI RISHESWAR GOGOI
             R/O HATIGARH BURA GAON
             P.S. JORHAT
             DIST. JORHAT
             PIN 78510

Advocate for the Petitioner   : MR. B K MAHAJAN

Advocate for the Respondent : PP, ASSAM

Page No.# 2/11

Before Hon'ble Mr. Justice N. KOTISWAR SINGH HON'BLE MRS. JUSTICE MALASRI NANDI

Date of Hearing & Judgment : 01.11.2021

JUDGMENT AND ORDER (ORAL)

[N. Kotiswar Singh, J.]

Heard Mr. D. Borah, learned counsel appearing for the appellant. Also heard Mr. P.

Borthakur, learned Additional Public Prosecutor, Assam appearing for the respondents.

2. The present appeal has been preferred against the judgment and order dated

13.07.2018 passed in Sessions case no.46/2015 by the learned Additional Sessions Judge,

Jorhat by which the appellant, namely, Pranab Dutta, was convicted under Section 302 IPC

and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/-

(Rupees Ten thousand) in default of which to undergo further simple imprisonment for 6 (six)

months.

3. The case of the prosecution as unfolded is that a complaint was filed on 26.12.2013

alleging that at about 9 PM on 25.12.2013 the appellant Pranab Dutta had dealt blows to one

Jogen Gogoi (the deceased) with a sharp weapon at Borpaik village, as a result of which the

deceased died on the spot.

4. On receipt of the said complaint at Bhogdoi O.P., a General Diary Entry was made being

GDE No.591 dated 26.12.2013, which was forwarded to the Officer-in-Charge, Jorhat Police Page No.# 3/11

Station where a formal police case being Jorhat P.S. Case no.1846/2013 under Section 302

IPC was registered.

5. On completion of the investigation, the appellant was charge-sheeted for committing

an offence under Section 302 IPC for causing death of the deceased by assaulting him with a

sharp weapon with the intention of causing his death. The prosecution examined as many as

9 (nine) witnesses and adduced evidences in support of the prosecution case. The learned

Trial Court after considering the evidences on record convicted the appellant as mentioned

above.

6. Learned counsel for the appellant has assailed this judgment primarily on the ground

that the prosecution has failed to prove the case beyond reasonable doubt.

7. It has been submitted that there are discrepancies in the evidence of the eye

witnesses as regards the sufficiency of light at the site of the incident which occurred during

the night time at around 9 pm near the river side of the village and as such, in view of the

aforesaid discrepancies, the appellant will be entitled to get the benefit of doubt.

8. It has been also submitted that no credible reason or motive has been assigned and

proved for committing such a heinous crime.

9. Before we proceed to examine the submissions made by the learned counsel for the

appellant, we may briefly refer to the evidence on record, on the basis of which the learned

Trial Court had convicted the appellant.

10. P.W.1 Debojit Gogoi, is the complainant, who is the cousin of the deceased. P.W.1 is,

however, not an eye witness.

11. As regards the P.W.2 Amrit Das, he is one of the eye witnesses. He had deposed before Page No.# 4/11

the Trial Court that about 1½ years back, at about 9 PM he along with others, namely, Mohan

Das, Diganta Das and Jogen Gogoi (the deceased) were catching fish near the house of the

appellant. While catching fish, the appellant came there with a bowl of mutton curry and

offered the same to the deceased Jogen Gogoi who however refused to accept and threw

away the bowl due to which the appellant out of anger went to his house and came back with

a dao and hit the deceased for about 10 times with it, because of which Jogen Gogoi died

instantly on the spot. Thereafter, the P.W.2 along with Mohan Das and Diganta Das went to

Bhogdoi Police outpost to inform the police about the incident. He also deposed that at the

time of catching fish, the place was lighted as they had fitted an electric bulb near the road

and also lighted a lamp nearby.

12. P.W.3 is Diganta Das who is another eye witness and was present at that time at the

place of occurrence. P.W.3 also deposed in the similar line as P.W.2.

13. P.W.4 is one Dadu Das and also an eye witness. He was present along with other

witnesses at the place of occurrence and testified in similar lines as that of P.W.2 and P.W.3.

14. P.W.5, though not an eye witness was a neighbor who knew both the deceased and

appellant. He stated that it was near his house that the deceased had given a portion of

fishery in lease to some persons to catch fish. He came to know about the incident after he

came back from his duty. He, however, witnessed the dead body of the deceased lying at the

place of occurrence.

15. P.W.6, Bhuban Ch. Das, testified that he along with 3 persons, namely, Dadu Das,

Diganta Das and Amrit Das had obtained the fishing right in respect of certain portion of

Gorkhawai river situated at Buragaon from the deceased. He also deposed about the incident Page No.# 5/11

similarly as P.W. 2, 3 & 4. He deposed that the appellant had offered a bowl of mutton curry

to the deceased, who threw the same into the water and thereupon, the appellant assaulted

the deceased with a sharp dao on his neck. Thus, he is also an eye witness to the incident.

16. P.W.7 is not an eye witness and his evidence is hearsay and as such, may not be relevant

for our purpose.

17. P.W.8 is one Dr. Nitu Kr. Gogoi, Asstt. Professor Department of Forensic Medicine, JMCH,

Jorhat, who performed the autopsy on the dead body of the deceased on 26.12.2013 and

found the following injuries:

"Injuries:

(1) Chop wound of size 11 cm X 3 cm X cranial cavity deep over the right side of forehead.

(2) Chop wound of size 14 cm X 3 cm X cranial cavity deep over the right temporal occipital region.

(3) Chop wound of size 5 cm X 1 cm X muscle deep behind right ear.

(4) Chop wound of size 10 cm X 3 cm X muscle deep over the left side of cheek middle part.

(5) Chop wound of size 3 cm X 2 cm X muscle deep over right shoulder joint.

Above mentioned injuries contained adherent blood clots over wound margins which resists washing by

running water.

Cranium and Spinal Canal, Members were found lacerated and subdural haemorrhage over both

hemispheres of the brain. Brain was lacerated over right frontal and temporal lobe."

The cause of death of the deceased as per the doctor was due to comma as a result of

injuries sustained by the deceased over the head and all the injuries were ante-mortem in

nature and caused by moderately heavy to heavy sharp cutting weapon, which was homicidal

in nature, and the aforesaid P.W. 8 proved the post mortem report.

Page No.# 6/11

18. P.W.9 is the Investigating Officer who stated that on 25.12.2013, he was posted as an

Attached Officer at Bhogdoi Outpost and on that day at about 9 PM one Bhuban Ch. Das

(P.W.6) came to the outpost and informed that one Jogen Gogoi had been murdered by one

Pranab Dutta at Borpike Gaon by assaulting him with a sharp weapon and that Jogen Gogoi

died on the spot. On receipt of the said information by one I/C of the Bhogdoi Outpost, it was

entered in the General Diary vide GDE No.580 dated 25.12.2013 which was exhibited as

Exhibit-7.

After receipt of the said information at about 11.45 PM, he (P.W.9) was instructed by the

I/C, Bhogdoi Outpost to visit the place of occurrence to make a preliminary investigation. He

stated that on the next day, at about 7 AM he went to the place of occurrence and conducted

the inquest over the dead body. He also mentioned about the registration of the FIR.

In the cross-examination he stated that he did not mention about the presence of any

light post near the place of occurrence. He also stated that P.W.1 did not state before him

that he got the information about killing of the deceased from the Gaon Bura. He also stated

that while recording the statement of P.W.2, he did not state before him that while catching

fish they had fitted a bulb and lighted a lamp nearby. He also stated that P.W.3 did not state

before him that the accused initially hit the deceased with a dao due to which the deceased

fell down and died instantly on the spot. He also stated that the P.W.6 did not state before

him that the deceased after taking the bowl of mutton curry from the accused threw it in the

water. He also admitted that he did not seize any wearing apparel of the deceased and also

did not make seizure of any article.

19. After recording of evidence of the prosecution, the accused was examined under Page No.# 7/11

Section 313 Code of Criminal Procedure. He, however, denied all the incriminating evidences

which were brought on record as false. He also did not adduce any evidence in his own

defence. He, however, stated that he was innocent and on the day of occurrence he had

returned home and had no knowledge about what had happened on that day amongst the

deceased and witnesses, P.W.2, 3 & 4 and was also not aware how the deceased Jogen Gogoi

was killed on that night and that he had been falsely implicated in the present case. He also

stated that the deceased killed his brother about 6 to 7 years before the said occurrence but

the case was mutually settled between the families.

20. The learned Trial Court for convicting the appellant relied on the eye witness accounts

of the prosecution of witnesses, which according to the learned Trial Court was fully

corroborated by the medical report. The learned Trial Court also noted that the defence did

not deny that the residence of the accused is near the place of occurrence. As per the sketch

map (Exhibit-8), prepared by the Investigating Officer, there were only 2 (two) houses near

the place of occurrence, one was appellant's house and another of Prosanna Kumar Dutta

(P.W.5). P.W.5 in his evidence has also stated that the place of occurrence was situated near

his house. Thus, the learned Trial Court came to the conclusion that the house of the

appellant was near the place of occurrence and accordingly, was satisfied that after the

aforesaid incident of throwing away of the mutton curry by the deceased which was offered

to him by the appellant, the appellant went to his house, came back with a dao and assaulted

him. The learned Trial Court also noted that the incident happened in the presence of eye

witnesses who were sitting near the fire.

21. The learned Trial Court dispelled the contention of the defence that no intention had

been proved by the prosecution by referring to the decision of the Hon'ble Supreme Court in Page No.# 8/11

Pulicherla Nagaraju @ Nagaraja Reddy vs. State of Andhra Pradesh reported in

(2006) 11 SCC 444 by holding that the appellant had hit the deceased with a dao and

there was several blows on the head which is a vital part of the body, and it was fully

corroborated by the medical report and as such, this act of assaulting on the vital part of the

body would clearly indicate that the appellant had the intention to commit murder.

22. As regards identification of the appellant who was accused of committing the crime in

the night time is concerned, the learned Trial Court after referring to the evidence was

satisfied that though the incident happened in the night time, there was a bulb fitted in the

temporary arrangement near the place of occurrence where the prosecution witnesses i.e.

PW 3, PW 4 and PW 5 were sitting. The learned Trial Court further observed that though the

Investigating Officer did not seize any lamp which was temporarily used by the witnesses, the

witnesses were sitting near the fire when the incident took place. Further, it was also

observed that the appellant was well known to all the eye witnesses and they were well

acquainted with him. It was observed that in absence of any question put by the defence as

to whether the eye witnesses referred to above knew the accused personally or not, it can be

considered that the eye witnesses were known to the appellant, and as such, it was not

difficult on their part to identify the appellant. Thus, the learned Trial Court observed that as

firewood was burning at the place of occurrence and since the appellant was well known to

the eye witnesses, the identity of the appellant who had caused the aforesaid assault can be

said to be well established.

23. As regards the contention raised by the defence that non seizure of the weapon of crime

would cast a doubt on the veracity of the prosecution case, the learned Trial Court rejected

the same by holding that since the injuries had been fully corroborated by the medical report Page No.# 9/11

and since the act of assault was witnessed by eye witnesses, who were familiar with the

appellant, non-recovery of the weapon of crime would not vitiate the prosecution case.

24. The learned Trial Court also noted that the appellant had not made any explanation in

spite of being confronted with the incriminating evidences which came out during the

proceeding and accordingly, the learned Trial Court held that the prosecution had been able

to prove the case against the appellant beyond all reasonable doubts. The Trial Court, thus,

concluded that it was the appellant who inflicted dao blows on the head of the deceased

several times, due to which the deceased died on the spot and the same was done with a

clear intention to cause the death of the deceased and accordingly, convicted him under

Section 302 IPC.

25. Learned counsel for the appellant has submitted before us that there were

inconsistencies in the eye witness accounts. Further, the fact that the weapon of crime was

not recovered would cast doubt on the prosecution case. It has been also submitted the

motive for causing death of the deceased has not been proved.

26. As we consider the submissions made by the learned counsel for the appellant, this fact

cannot be overlooked that the incident was witnessed by PW 2, PW 3 and PW 4, who were

also familiar with the appellant and the appellant was present at the time and place of

occurrence, but no question was raised during the course of trial. The fact that the appellant

was present at the time and place of occurrence was fully established. We see no reason to

doubt the statements of the aforesaid witnesses that it was the appellant who struck the

deceased with a dao. The fact of receiving the fatal injury by the deceased caused by a sharp

weapon has been fully corroborated by the medical evidences.

Page No.# 10/11

27. What has been sought to be contradicted in course of the cross examination was that the

place was not properly lighted and that the appellant did not offer a bowl of mutton curry to

the deceased which was thrown away by the deceased. As regards the existence of sufficient

light, we are of the view that even if the existence of electric bulb is doubted, the fact

remains that there was some fire lighted by the PW 2, PW 3, PW4 and PW 6, who were

involved in the act of fishing during that night. Further, the witnesses could not have engaged

in the act of fishing without some visibility, whether it was due to moon light or some fire

nearby, which may be lit by them.

28. Further, it is on record that the appellant was well known to the aforesaid prosecution

witnesses. Moreover, the aforesaid act was not committed by a number of persons who had

assaulted the deceased which could cast a doubt on the identity of the person(s) who had

assaulted the deceased. It was a singular act of the appellant who was responsible for the

death of the deceased and no one else was involved and hence, identifying the assaulter

could not be difficult.

29. Under the circumstances, we are satisfied that the eye witnesses i.e. PW 2, PW 3, PW 4

and PW 6 who were well acquainted with the appellant, had identified the appellant at the

time of assault. As regards the nature of assault, there are sufficient corroborating medical

evidences in terms of the post-mortem report, which was duly proved by the Doctor i.e. P.W.8

who performed the autopsy and prepared the postmortem report.

30. As regards non-recovery of the weapon of crime or any article related to the crime from

the place of occurrence is concerned, we are satisfied that non-recovery of such materials as

well as weapon of crime will not make any difference in the present case, inasmuch as, there Page No.# 11/11

is clear ocular evidence of the P.W. 2, PW 3, PW 4 & PW 6 who had witnessed the assault of

the deceased by the appellant.

31. Further, as regards the existence of motive, which has been questioned by the

appellant, on perusal of the nature of injuries received by the deceased as testified by the

Doctor, it is clearly evident that the deceased had received as many as 5(five) chop wounds

on the forehead, occipital region, behind right ear, left side of the middle of the chick part and

the right shoulder joint. Out of the aforesaid 5(five) injuries, 4(four) injuries were received on

the head of the deceased which is a vital organ of the body and any such injury caused on

the head would normally lead to death. Accordingly, we are of the opinion that by the nature

of the numerous injuries inflicted by the appellant on the vital organ of the body, it cannot be

said that he did not have any intention to cause death of the deceased. Under such

circumstances, establishment of motive becomes hardly relevant.

32. For the reasons discussed above, we do not find any reason to interfere with the well

reasoned judgment rendered by the learned Additional Session Judge, Jorhat.

Accordingly, the appeal is dismissed as devoid of any merit and we uphold the order of

conviction and sentence of the appellant passed by the learned Additional Session Judge,

Jorhat on 13.07.2018 in Sessions Case No.46/2015.

33. LCR be remitted to the learned Additional Sessions Judge immediately.

                                          JUDGE                                     JUDGE


Comparing Assistant