Page No.# 1/ vs The State Of Assam
2021 Latest Caselaw 2017 Gua

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GAHC010196362009




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

                                Case No. : Crl.A./4/2009

            SUBRATA GHOSH
            S/O LT. SATYENDRA CH. GHOSH, R/O REHABARI, BILPAR,
            PS.PALTANBAZAR, GUWAHATI, DIST. KAMRUP, ASSAM.

            2: MONO MAHANTA

             S/O LT. CHANDRA MAHANTA
             R/O REHABARI
             BILPAR
             PS.PALTANBAZAR
             GUWAHATI
             DIST. KAMRUP
             ASSAM.

            3: DILIP ROY
             S/O LT. MADHAB ROY
             R/O REHABARI
             BILPAR
             PS.PALTANBAZAR
             GUWAHATI
             DIST. KAMRUP
            ASSAM

            VERSUS

            THE STATE OF ASSAM
            -

Advocate for the Petitioner : MR.A GANGULY

Advocate for the Respondent :

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER(ORAL)

Date : 01-09-2021

Heard Mr. A Ganguly, learned counsel appearing for the appellant. Also heard Mr. RJ Baruah, learned Additional Public Prosecutor, Assam.

2. An ejahar was lodged on 13.01.1989 by one Mrigen Das, son of Late Prasad Das of Rihabari, inter alia, alleging that at about 10P.M., on 13.01.1989, some 15/20 miscreants armed with deadly weapons like stick, rod chain etc., attacked Ratul Malla Bujar Barua, Ranjit Das and Rabin Patowari on the road at Madhabdevpur and caused grievous injuries to them and thereafter fled away from the place of occurrence. The injured were immediately taken to the Gauhati Medical College and Hospital at Guwahati and were given treatment, but in doing so Rabin Patowary died in the hospital. The ejahar also stated that Ratul Malla Bujar Barua had recognized one Atul, who worked as a peon in Statefed, Bhangagarh and Gopal who worked at Orient Motor Garage and he would be able to identify the other four persons if he sees them. Accordingly Paltan Bazar PS Case No.24/89 was registered under Sections 147/148/302/325 of the IPC. Upon investigation being completed, the charge sheet was submitted, based upon which charges were framed against the following persons namely, Kajal Deb, Subrata Ghose, Atul Ao, Mono Mahanta, Dilip Roy, Kamakhya Mondal, Parimal Mandal and Sankar Saha.

3. It is stated that out of the eight persons against whom the charges were framed, two of them namely, Atul Ao and Sankar Saha died during the trial itself. The first three charges were respectively under Sections 147, 148 and 149 of the IPC on the ground of unlawful assembly being formed by the accused person for prosecution of a common object. The fourth charge was under Section 325 of the IPC for having voluntarily caused grievous hurt to Page No.# 3/10

Ratul Malla Bujar Barua and Ranjit Das by lathi, iron rod and chain and the fifth charge was under Section 302 of the IPC for having intentionally committing murder of Rabin Patowary.

4. The prosecution examined 13 witnesses. PW1 Raju Verma clearly stated that he was watching TV inside his house and upon hearing commotion he came out, but could not recognize any of the persons as it was a foggy night. But upon reaching the place of occurrence, he saw the deceased Rabin Patowary was lying on the road with his mouth swollen with injuries. The said witness is apparently not an eye witness to the occurrence in any manner as he was not present when the incident had occurred.

5. PW2, Ratul Malla Bujor Barua in his evidence has stated that he could recognize seven accused persons by seeing their faces. The witness also deposed that the accused person came to uproot the bamboo fencing in the house of Rabin Patowary as it was on the eve of Magh Bihu, a festival, during which at the relevant point of time, it was not uncommon to remove any fencing etc. for the purpose of having a bonfire. The witness states that when the deceased Rabin Patowary resisted the accused persons from removing the bamboo fence, an alteration had taken place. The witness arrived at the place of occurrence at that point of time when the altercation was going on. The witness states that by the expression 'these accused persons' he means the seven persons named by him who had attacked Rabin Patowary and the witness himself. As a result of the assault, the witness suffered severe head injury and to save himself he entered the house of one Prabhat Das which is located nearby. The witness also stated that the deceased Rabin Patowary fell down at the place of occurrence as a result of the assault. Apart from the above, no other relevance is discernible from the evidence of PW2.

6. PW2 was again recalled for further examination on 21.04.2004 in a situation where his earlier evidence was rendered on 29.04.1998. In course of further evidence, PW2 stated that when he was subjected to a Test Identification Parade, he identified the accused Atul Aao who had killed the deceased Rabin Patowary. The witness also stated that Atul Aao had Page No.# 4/10

assaulted Rabin Patowary. He further deposed that after the Test Identification Parade, the Magistrate wrote down the name of people whom the witness had identified and Exhibit 7 is the document where the Magistrate had recorded the names.

7. Although the PW2 on his reexamination was declared to be hostile, we required the learned Public Prosecutor to explain as to why it was done.

8. The submission made is that the witness in his deposition had stated that he did not remember the persons whom he had identified in the Test Identification Parade and therefore, he was declared hostile.

9. We have noticed that during his statement under Section 161 Cr.PC the witness had clearly stated the name of the persons he had identified and in his deposition on reexamination which was done after a period of almost fifteen years, what is stated is that he could not remember the names as such on that day but the names he had earlier stated were recorded by the Magistrate in Exhibit 7 which is available.

10. Such conduct on the part of the PW2 on its own cannot be a sufficient reason to declare him to be a hostile witness.

11. Be that as it may, what is discernable from the evidence of PW2 who is presented as the only eye witness of the occurrence, on reexamination, that he had seen the accused Atul Aao assaulting the deceased Rabin Patowary. No evidence is rendered by PW.2, although he was the eye witness as to in what manner the assault had taken place and if Atul Aao had assaulted Rabin Patowary by what means the assault was inflicted by Atul Aao on Rabin Patowary.

12. The other witness being PW3 Satich Verma also stated that the incident took place after Page No.# 5/10

10:00 pm when he was at home.

13. PW4 Bhola Sarkar stated that although police went to his house to enquire about the incident but his reply was that he was unaware of any such happenings.

14. PW5 Tulshidhar Deka had deposed about some prior incident of one of the injured person namely Ranjit Das having punched two boys, who were unrelated and whose complicity in the incident has not been established in any manner. But this witness further stated that the two boys who were punched by Ranjit Das later came back with 6/7 other boys and enquired from him as to where Ranjit Das had gone and upon being indicated the direction in which Ranjit Das had gone, the boys went away looking for him, in the direction as was indicated by the witnesses. Thereafter, the PW5 stated that the deceased Rabin Patowary came out of his house and asked him as to what had happened. The witness thereafter deposed that after some time, someone told him that Rabin Patowary was killed and he was lying in a road.

15. The evidence of PW5 also does not in any manner establish as to in what manner the death was caused to Rabin Patowary or in what manner the alleged incident had taken place.

16. On being reexamined on 22.09.2003, PW5 stated that he could not recognize any of the accused persons in the Test Identification Parade and was ultimately declared hostile.

17. PW6 Ranjit Kumar Das in his deposition deposed about the incident earlier narrated by PW5 as regards the two boys coming from a particular direction and when an objection was raised as regards the playing of some loud music the witness and others had given punches to the boys who came for raising the objection. The witness stated that later on, a gang of 40/50 boys armed with rod and piece of wood came back to attack them and on seeing them he fled away.

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18. This witness is also of no help to establish as to in what manner the occurrence of causing injury/death to the deceased Rabin Patowary and PW2 Ratul Malla Bujar Baruah had taken place.

19. PW7 Mrigen Das who was the informant of the Ejahar dated 13.01.1989 significantly stated that the incident took place on 13.01.1989 but he was informed by Ranjit Das and Ratul Malla Bujar Barua on the following morning about the death of the deceased Rabin Patowary. If it is so, it is not understood how this witness had lodged the FIR on 13.01.1989 stating that death was caused to Rabin Patowary in the manner it was stated in the Ejahar.

20. PW8 Lankeswar Kakoti also deposed that he arrived at the place of occurrence after the event had taken place.

21. PW9 Hari Sarma who was the Investigating Officer had deposed that he took over the investigation at a subsequent stage and in the meantime, the Sub-Inspector Durga Prasad Borah had completed the investigation.

22. PW10 Dr. Pratap Chandra Sarma deposed that on 14.01.1989, he was working as an Associate Professor of Forensic Medicine in the Gauhati Medical College Hospital and had performed the post mortem on the dead body of deceased Ranjit Patowary. The witness had deposed that the following injuries were found in the body of the deceased Ranjit Patowary:

"(B) Injuries - I found the following injuries:

                i)          One contusion 4cm x 1cm. on the back 5 cm. left from the
                midline and 2cm. above iliac chest.
                ii)        Contusion 2cm. x 1 cm on the left shoulder.
                iii)      Right eye-black eye.
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                iv)       Lacerated wound 4cm. x 1cm. x 1.5cm. deep on the right cheek

3cm. below the right angle of the mouth with fracture of mandible bone at the root of right canine tooth.

v) Lacerated wound 2cm. x 0.5cm x 0.5cm (deep) on the right side of face 0.5cm. below the right angle of mouth.

vi) Contusion of scalp 16cm. x 0.8cm. size of six cm. above the upper eye ridge on left side and 4cm. left to the mid lie with depress communited (multiple) fracture of under line left partial bone involving 8cm. x 6cm. area.

vii) Contusion of scalp 8cm. x 5cm. in size at 4cm. above the tip of mastoid process of right side.

viii) Contusion 8cm. x 6cm. size of the scalp of 0.5cm. above the occipute and one cm. right to the mid line.

ix) Bose skull- multiple tissue fractures along the crivriform plate involving both sides and tissue fracture 10cm. long along th posterior boarder of anterior carnial tossae."

x)

23. Amongst the injuries described by the doctor performing the post mortem examination, the injury no. 9 is that there were multiple tissue fractures and further the contusion was found in the left partial and temporal lobes of brain with multiple contusions on brain stem and lacerated injury was found on the cover membranes.

24. The opinion given by the doctor was that the injuries were ante-mortem and were caused by blunt weapons and were homicidal in nature.

25. The evidence rendered by the prosecution is limited to the extent the accused person had assaulted the deceased Ranjit Patowary and PW2 Ratul Malla Bujar Barua. There is no evidence that any weapon or of any kind were used in the event at all.

26. The seizure list MR-46/89 shows, amongst others, one piece of 7'' long blood-stained Page No.# 8/10

firewood was seized. Another seizure list MR-47/89 shows two burnt wooden pieces 1'' x 2'' x 4'9'' long 1'' x 2'' x 3'2'' long were also seized.

27. But what is taken note that the seizure list being MR-47/89 was seized from the premises of Pravat Das and not from the place of occurrence and the occasion being the eve of Magh Bihu, a judicial notice can be taken that it was not unusual to have a bonfire in the premises of Pravat Das.

28. So what left is that as a weapon used in the assault, one 7'' long blood-stained firewood was seized.

29. A reading of the injuries found on the deceased Rabin Patowary shows that only the injury no. 9 on the scalp could have been caused by a blunt or a sharp weapon and from the seizure, it has to be understood that it was caused by the 7'' long piece of wooden log.

30. The evidence of PW2 Ratul Malla Bujar Barua shows that although the accused person had assaulted Ranjit Patowary, but there is no mention of any weapon being used and it has to be understood from the evidence that the assault had taken place by means other than the means of using any sharp or blunt weapon.

31. Further as already opined, other than, the injury no. 9, the other injuries could also have been caused in any other manner.

32. Considering the evidence-on-record in its entirety, the case that the prosecution could prove through the evidence would be that the accused persons had assaulted the deceased Ranjit Patowary without establishing that in such assault the accused had used a blunt or sharp weapon.

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33. As regards the other charges in respect of the injuries on PW2 Ratul Malla Bujor Bara, we do not find any injury report in the evidence-on-record. From the said point of view, we have to ignore the charges of assault on the PW2 Ratul Malla Bujor Barua. Accordingly, on the basis of the evidence available on record, we are of the view that such evidence can point to an act having been committed by the accused persons under Section 323 of the Indian Penal Code.

34. Considering the nature of the evidence available, we retain conviction under Section 147/149 by acquitting the accused person under the Charges of Section 148 to the extent that there is no evidence available on record that any rioting had taken place with a weapon.

35. Accordingly, the accused appellant stands convicted under Sections 323/147/149 of the Indian Penal Code.

36. Considering the nature of the offence committed, we are of the view that a sentence equivalent to the imprisonment, the accused had already undergone would be a sufficient sentence in the circumstance.

37. The appeal stands partly allowed as indicated above.

38. Send back the LCR.

JUDGE Page No.# 10/10

Comparing Assistant