CRL.A(J)/93/2019
2021 Latest Caselaw 2204 Gua

                                                                                Page No.# 1/16

GAHC010278012019




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

                                    CRL.A.(J)/93/2019

                   NITUL DUARAH
                   SIVASAGAR, ASSAM
                                                                            .................Appellant

                       -Versus-


           1)      THE STATE OF ASSAM
                   REPRESENTED BY PP, ASSAM


           2)      SRI CHENI CHETIA
                   S/O- LATE DHOMESHWAR CHETIA
                   VILL.- CHUTIA KATANI MALIA GAON
                   PS- BAKATA NEMUGURI
                   DISTRICT- SIVASAGAR, ASSAM
                                                                     ...................Respondents

Advocates :

     For the Appellant            : Ms. Meghali Barman, Amicus Curiae

     For the Respondent           : Mr. P. Borthakur, Additional Public Prosecutor

     For the Respondent no. 2 : Mr. U. Choudhury, Legal Aid Counsel

     Date of Hearing              : 07.09.2021

     Date of Judgment             : 14.09.2021
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                                    BEFORE
                     HON'BLE MR. JUSTICE N. KOTISWAR SINGH
                    HON'BLE MR. JUSTICE MANISH CHOUDHURY

                             JUDGMENT AND ORDER (CAV)

(Manish Choudhury,J)

This Criminal Appeal from jail is preferred against a judgment and order dated 05.04.2019 passed by the trial court of learned Sessions Judge, Sivasagar in Sessions Case no. 03(S-S)/2019. By the said judgment and order dated 05.04.2019, the learned trial court has convicted the accused-appellant for the offence of murder under Section 302, Indian Penal Code [IPC] and he has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/-, in default of payment of fine, to undergo simple imprisonment for further 1 [one] month.

2. The case of the prosecution, in brief, is that on 26.09.2019, one First Information Report [FIR] was lodged before the Officer In-Charge, Bakata Nemuguri Police Station, District - Sivasagar by one Sri Cheni Chetiya [P.W.1] alleging, inter alia, that at around 10- 30 a.m. on that day, his younger brother, Akoni Chetiya had a quarrel with the accused, Sri Nitul Duara from the same village. In the course of quarrel, the accused assaulted Akoni Chetiya with a saw and as a result of the assault, Akoni Chetiya sustained grievous injury. He was immediately taken to and admitted at Bakata Konwarting Community Health Centre. Due to excessive loss of blood, Akoni Chetiya was thereafter, sent to Assam Medical College & Hospital [AMCH] at Dibrugarh. But, he was declared dead at the AMCH.

3. On receipt of the FIR [Ext-3], the Officer In-Charge, Bakata Nemuguri Police Station registered a case being Bakata Nemuguri Police Station Case no. 28/2018 [G.R. Case no. 1726/2018] under Section 302, IPC and taken up investigation of the case himself as the Investigating Officer [I.O.].

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4. After registration of the case, Sri Prabhat Saikia [P.W.8], the I.O. visited the place of occurrence and prepared a sketch map of the place of occurrence [Ext-4]. On the date of the incident itself i.e. on 26.09.2018, the accused was taken into custody. The statements of the witnesses were recorded by the I.O. One saw was seized by the I.O. on 26.09.2018 by a seizure list [Ext-2] in presence of witnesses and the same was stated to have been seized from the accused. An inquest report [Ext-5] was prepared by the I.O. at the Casualty Department, AMCH on 27.09.2018. Thereafter, the post-mortem examination on the deadbody of the deceased was conducted at the AMCH on 27.09.2018 and a post- mortem examination report [Ext-1] was prepared. After completion of investigation, the I.O. submitted a charge sheet under Section 173(2), Code of Criminal Procedure, 1973 [CrPC] vide Charge Sheet no. 19/2018 dated 29.11.2018 finding sufficient evidence against the accused in custody to put him on trial for the offence of murder under Section 302, IPC.

5. On submission of the charge sheet, the Court of learned Sub-Divisional Judicial Magistrate, Sivasagar after complying with the provisions of Section 207, CrPC by furnishing copies to the accused, committed the case record of G.R. Case no. 1726/2018 to the Court of Sessions, Sivasagar in terms of the provisions of Section 209, CrPC by the order of commitment dated 27.12.2018 as the offence under Section 302, IPC is exclusively triable by the Court of Sessions.

6. On receipt of the case records on 03.01.2019, pursuant to the order of commitment, the Court of Sessions, Sivasagar registered the case as Sessions Case no. 03(S-S)/2019. As the accused was in jail custody, his production was caused from jail custody. After hearing the learned Public Prosecutor and the learned defence counsel for the accused on the point of charge and upon consideration of the record of the case, the learned trial court framed a charge under Section 302, IPC against the accused on 03.01.2019. When the particulars of the charge was read over and explained to the accused, he pleaded not guilty and claimed to be tried.

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7. During the course of trial, the prosecution side examined as many as 8 [eight] prosecution witnesses [P.W.s] in order to bring home the charge against the accused apart from exhibiting a number of documents as evidence. The accused was, thereafter, examined as per the provisions of Section 313, CrPC by putting before him the circumstances appearing in the evidence against him. The defence did not adduce any evidence. The defence case was of denial. After completion of the trial, arguments were heard and after examination and evaluation of the evidence brought on record, the learned trial court finding the accused guilty of the offence of murder, had passed the afore-mentioned judgment and order of conviction and sentence. Hence the present appeal from jail.

8. Heard Ms. M. Barman, learned Amicus Curiae for the accused-appellant; Mr. P. Borthakur, learned Additional Public Prosecutor for the respondent State of Assam and Mr. U. Choudhury, learned Legal Aid Counsel for the respondent no. 2-informant.

9. Learned Amicus Curiae has submitted that other than the doctor and the I.O., the prosecution side examined 6 [six] other PWs. Out of these 6 [six] PWs, the prosecution side claimed that two were eye-witnesses. She has submitted that the versions of these two claimed eye-witnesses are full of embellishments, thus, making them unworthy of credit. She has further submitted that there is grave doubt about them seeing the incident. It is her further submission that the medical evidence has put the prosecution evidence into further doubt as to whether the injury sustained by the deceased was caused by a saw. It is submitted by her that it has not emerged from the evidence on record that the place of occurrence was visible from the Anganwadi Centre where the so called eye-witnesses were remaining busy with teaching and cooking a quite a number of children. According to her, the prosecution has failed to prove the case against the accused beyond all reasonable doubts.

10. Mr. Borthakur, learned Additional Public Prosecutor has supported the judgment Page No.# 5/16

and order of conviction and sentence. According to him, the eye-witness accounts were credible and it has been established that the deceased met a homicidal death as a result of the injury sustained by him. The evidence on record go to establish that the injury was caused by the accused with a saw. Recovery of the saw from the house of the accused had further strengthened the case of the prosecution. There is no inconsistency in the medical evidence, he submits. Submitting as such, Mr. Borthakur has submitted that no interference is called for in the case in hand.

11. Mr. Choudhury, learned Legal Aid Counsel appearing for the informant has also supported the judgment and order of conviction and sentence passed by the learned trial court. It is his submission that the defence side has failed to discredit the testimonies of the prosecution witnesses, more particularly, that of the eye-witnesses. He has submitted that the appeal has no merits and therefore, the same shall be dismissed.

12. We have duly considered the submissions of the learned counsel for the parties and have also perused the materials available in the case record of Sessions Case no. 03(S-S)/2019, in original.

13. In order to appreciate the rival submissions advanced by the parties, an examination of the testimonies of the witnesses would be necessary. As has been mentioned above, the prosecution side examined 8 [eight] nos. of witnesses and they were - [i] P.W.1- Sri Cheni Chetiya, [ii] P.W.2 - Smti. Himamani Chetiya, [iii] P.W.3 - Smti. Purnima Chetiya, [iv] P.W.4 - Sri Rajani Gogoi, [v] P.W.5 - Sri Baba Chetiya, [vi] P.W.6 - Dr. Debarshee Chakraborty, [vii] P.W.7 - Sri Santosh Gogoi, and [viii] P.W.8 - Sri Prabhat Saikia, Sub-Inspector of Police and the I.O. of the case. From their testimonies, it is found that P.W.1, the informant was the elder brother of the deceased whereas P.W.2 was the sister-in-law of the deceased and the wife of P.W.1. P.W.3 was a cousin sister of the deceased. P.W.4, P.W.5 and P.W.7 were co-villagers of the deceased and the accused. P.W.6 was working as a Demonstrator in the Department of Forensic Medicine, AMCH on 27.09.2018, when he conducted autopsy on the deadbody of the deceased. P.W.8, the Page No.# 6/16

I.O. of the case was the Officer In-Charge, Bakata Nemuguri Police Station at the relevant time.

14. Before having a look at the testimonies of the witnesses, the injuries sustained by the deceased, as reported in the post-mortem examination report [Ext-1], can be noticed. As per the post-mortem examination report, there was an incised wound of size 8 cm x 3 cm x 2.5 cm found present over the left side of neck, from 4 cm below the left ear lobule and running downwards & anteriorly & obliquely. The margins of the wound were found regular and clean cut. The underlying soft tissues, muscles, the carotid artery and the jugular veins were completely sliced. Blood clots were found adherent to the margins of the wound and were found to be resistant to the washing out with running water. The tailing of the wound was found present downward and anteriorly. It was opined that the death was due to hemorrhagic shock as a result of the injury sustained over neck. The injury was ante-mortem in nature and caused by moderately heavy sharp cutting weapon and was homicidal in nature. Admittedly, the death of the deceased was homicidal in nature and no contest has been made on that aspect by any of the parties. In such obtaining fact situation, the issue would be whether it was the accused, as claimed by the prosecution, who had caused the injury leading to the death of the deceased and whether the prosecution side has been able to bring the case against the accused beyond all reasonable doubts, with the evidence led by it during the trial.

15. Before examining the evidence of P.W.2 and P.W.3, the testimonies of the co- villagers like P.W.4, P.W.5 and P.W.7 who had no blood relations either with the deceased or with the accused can be examined. In his testimony, P.W.4 stated that both the deceased and the accused, being co-villagers, were known to him. At the time of the incident, he was at a boiler farm. On hearing hue and cry from the road in front of his house, he rushed to that place and saw Purnima Chetiya [P.W.3] carrying the deceased, Akoni Chetiya who was bleeding at that time. Sensing that Akoni Chetiya needed to be taken for treatment, P.W.4 took out his motorcycle and carried Akoni Chetiya in the Page No.# 7/16

motorcycle with Sri Baba Chetiya [P.W.5]. Akoni Chetiya was taken to the Public Health Centre [PHC] at Bakata for treatment. P.W.4 noticed that blood was oozing out from the neck of Akoni Chetiya. From Bakata PHC, Akoni Chetiya was referred to the AMCH. P.W.4 then, along with the hospital staff, accompanied Akoni Chetiya to the AMCH in a hospital ambulance. At the AMCH, Akoni Chetiya was declared brought dead. The family members of Akoni Chetiya reached the AMCH subsequently. In his cross-examination, P.W.4 testified that he did not see the incident of cutting Akoni Chetiya by the accused. He came to know later on that during a quarrel with Akoni Chetiya the accused made a blow on the neck of Akoni Chetiya with a handsaw. He further admitted that he did not tell the police that he saw Purnima Chetiya [P.W.3] carrying Akoni Chetiya and he took Akoni Chetiya in his motorcycle with Sri Baba Chetiya [P.W.5] to the nearby Bakata PHC for treatment. The above admission was confirmed also through the I.O. [P.W.8].

16. P.W.5, also a co-villager of both the deceased and the accused, stated that at the time of the incident, 10-30 a.m. he was at his house and hearing hue and cry from the road, he rushed to that place. Going there, he saw Purnima Chetiya [P.W.3] and Rajani Gogoi [P.W.4] trying to get Akoni Chetiya on a motorcycle. He noticed blood oozing out from the neck of Akoni Chetiya and a gamocha wrapped around his neck. He along with P.W.4 took Akoni Chetiya to the nearby Bakata PHC for treatment. He also deposed that on being referred, Akoni Chetiya was taken to the AMCH in a hospital ambulance and P.W.4 also went in that ambulance. Later on, he came to know that Akoni Chetiya expired at the AMCH. He also later on heard from the villagers about the accused inflicting cut blow on the neck of Akoni Chetiya with a handsaw. In his cross-examination, P.W.4 stated that he did not see the incident of cutting Akoni Chetiya by the accused. He also expressed ignorance from whom he heard about the accused inflicting the cut blow. P.W.5 admitted that he reached the place of occurrence after about 10 minutes of hearing hue and cry.

17. P.W.7 like P.W.4 and P.W.5, was a co-villager of the deceased and the accused.

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Having learnt about the incident of assault on Akoni Chetiya, he went to Bakata Nemuguri Police Station. On the way, he saw that Akoni Chetiya was brought to Bakata PHC. He saw a cut injury on Akoni Chetiya's neck and one gamocha wrapped around the neck. He learnt there that the accused inflicted the cut on Akoni Chetiya. Thereafter, he and one Rajib Malia went to Bakata Nemuguri Police Station and after some time, P.W.1 also reached there. After a discussion amongst them, they prepared to lodge the FIR. While they were at the police station, they came to know that Akoni Chetiya had expired. In that connection, P.W.1 lodged the FIR. Later on, police came to the village and went to the residence of the accused. On being handed over by the parents of the accused, the police officer seized one handsaw from the house of the accused vide a seizure list [Ext-2] where he signed as a witness. He stated that Mat.Ext-1 was the seized handsaw. He further deposed that the FIR [Ext-3] was written by him. In his cross-examination, he deposed that he did not see the incident of cutting Akoni Chetiya by the accused and the I.O. did not record his statement.

18. From the testimonies of P.W.4, P.W.5 and P.W.7, it is evident that none of these witnesses had seen the incident of assault on Akoni Chetiya. These witnesses admitted that they were not present at the place of occurrence at the time of the incident. It transpires that P.W.4 with the assistance of P.W.5 had taken Akoni Chetiya in an injured condition to the PHC at Bakata on his motorcycle. Neither P.W.4 nor P.W.5 had deposed that during the journey to the PHC at Bakata Akoni Chetiya had disclosed anything to them about the incident of assault and who had assaulted. P.W.4 and P.W.5 had stated that they came to learn from others later on that the accused had inflicted the blow on Akoni Chetiya. From the testimony of P.W.7 also, nothing has emerged about the incident of assault as he was also a hearsay witness in that respect. It has further emerged that P.W.7 wrote the FIR for P.W.1 after a discussion between them along with one Rajib Malia, who was not examined, after they came to learn about the death of Akoni Chetiya. Thus, the FIR was lodged by the informant [P.W.1] in consultation with P.W.7 and none of the two had seen the incident. The FIR was, thus, based on hearsay. P.W.7 deposed about the Page No.# 9/16

seizure of a handsaw [Mat.Ext-1] by a seizure list [Ext-2]. From his testimony, it has emerged that Mat.Ext-1 was handed over to the I.O. by the parents of the accused.

19. P.W.1 who was the elder brother of the deceased, also knew the accused, a co- villager. Though in his examination-in-chief, he made a description of the incident of assault on the deceased by the accused, he admitted that he did not made such statements before the I.O. and as such, no credence can be given to the description he gave about the incident of assault. In his cross-examination, P.W.1 admitted that he did not see the accused cutting the deceased. He deposed that the deceased was a bachelor and used to reside separately from him, with their mother. P.W.3 is his relative. He stated that the place of occurrence was on the road in front of the house of one Jadu Nath. The residence of one Uma Nath and then a grocery shop and the Anganwadi Centre were next to the residence of Jadu Nath. He stated that the entry gate to the house of Jadu Nath was visible from the Anganwadi Centre and there was a ditch opposite to the house of Jadu Nath. He stated that he could not say about the contents of the FIR and denied that he filed the FIR falsely implicating the accused. He feigned ignorance about existence of any enmity between the deceased and the accused. Thus, his evidence about the incident of assault was also hearsay. He was not even aware about the contents of the FIR filed under his signature.

20. P.W.2 is the wife of P.W.1 and is an Anganwadi Worker. She stated that at about 10-30 a.m. on the date of incident, she was at the Anganwadi Centre. At that time, she heard loud talks between Balaram Duarah and Akoni Chetiya on the road. She peeped through the window of the Anganwadi Centre and was following the talk. She saw that suddenly the accused came there with a saw in his hand and inflicted a saw wound on the neck of Akoni Chetiya. After the incident, the accused left the place. Balaram Duarah then, going towards her house made hue and cry and thereafter, went towards his house. Purnima Chetiya [P.W.3], her co-Anganwadi Worker was with her at that time and also saw the incident. P.W.3 then went to the place of occurrence and holding Akoni Chetiya, Page No.# 10/16

she wrapped one cloth around the neck of Akoni Chetiya. P.W.4 also came there and took Akoni Chetiya on his motorcycle to the nearby PHC at Bakata wherefrom the injured was taken to the AMCH, Dibrugarh. But, Akoni Chetiya died on way to Dibrugarh. In her cross- examination, P.W.2 was confronted by the defence to the effect that she did not state before the I.O. that she had heard loud talks between Balaram Duarah and Akoni Chetiya; that hearing such loud talks, she peeped through the window of the Anganwadi Centre and was following their talks; and that she saw the accused coming there with a saw in his hand and inflicting the saw wound on the neck of Akoni Chetiya. P.W.2 admitted that she did not make such statements before the I.O. P.W.2 was also confronted by the defence that she did not state before the I.O. to the effect that after the incident, the accused left the place or P.W.3 was also with her and saw the incident; that P.W.3 went to the place of occurrence and by holding Akoni Chetiya, wrapped one cloth around his neck. P.W.2 admitted that she did not also make any of the above statements before the I.O. The above contradictions had been confirmed by the defence through the I.O. by putting them before the I.O. [P.W.8] during his cross-examination. P.W.2 deposed that she could not say about the kind of talks going on between Balaram Duarah and Akoni Chetiya, but confirmed that Balaram Duarah at the time of incident did not make any quarrel with Akoni Chetiya. Balaram Duarah used to talk in a loud voice. P.W.3 further stated that the place of occurrence was not visible from the Anganwadi Centre. At the time of incident, P.W.2 and P.W.3 were at the Anganwadi Centre with 30 pupils and they remained busy with teaching and cooking for the pupils. At the time of taking Akoni Chetiya for treatment, she was stated to be in the Centre to look after the pupils.

21. P.W.3 stated that she is an Anganwadi Helper and knew both the deceased, her cousin, and the accused who is a neighbour and co-villager. She testified that at the time of the incident at about 10-30 a.m., she was at the Anganwadi Centre. At that time, she heard loud talks of Balaram Duarah and peeped through the window of Anganwadi Centre. She saw Balaram Duarah, the accused and Akoni Chetiya talking on the road near to the Anganwadi Centre. She had heard Balaram Duarah saying to the accused i.e. his Page No.# 11/16

son to go back to his place of work. She saw that after going for some steps, the accused took a turn and by coming back to the place of talking, inflicted a cut injury on the neck of Akoni Chetiya with a handsaw. After the incident, Balaram Duarah made hue and cry by calling P.W.1 and saying that his brother was cut by his son. On seeing the incident, P.W.3 stated to have come out of the Anganwadi Centre and at the entry gate, met the accused who confessed before her about him cutting Akoni Chetiya. She rushed towards Akoni Chetiya and by taking a gamocha from the waist of Akoni Chetiya, put it on his neck. She then called P.W.4. Thereafter, P.W.4 and P.W.5 came there and they took him to the nearby PHC at Bakata on the motorcycle of P.W.4. The defence confronted this witness by stating that she did not make the above statements before the I.O. when the I.O. recorded her statement earlier and this witness denied the same. However, the defence while cross-examining the I.O. [P.W.8] put the same before him and the I.O. confirmed that P.W.3 did not make such statements, mentioned above, before him. The defence has been able to bring the same as a contradiction during the trial. P.W.3 like P.W.2, also deposed that at the time of the incident they were at the Anganwadi Centre along with 30 pupils, remaining busy with teaching and cooking. She denied the defence suggestion that she had deposed falsely as the deceased was her cousin. She stated that the place of occurrence was near the house of Jadu Nath. She further stated that in between the Anganwadi Centre and the residence of Jadu Nath, the residence of Uma Nath and one grocery shop are located. She denied a suggestion that the place of occurrence was not visible from the Anganwadi Centre.

22. From the trend of cross-examination and the submission of the learned Amicus Curiae, it transpires that one of the defence pleas is that the place of occurrence is not visible from the Anganwadi Centre and the Centre was not located at a distance wherefrom one could see any incident occurring and hear any talks happening at the place of incident. It has, thus, emerged as a vital aspect requiring us to go through the evidence on record on that aspect. It may be reiterated that according to P.W.1, the place of occurrence was on the road just in front of the house of Jadu Nath. The residence of Page No.# 12/16

Uma Nath and one grocery shop are located in between the residence of Jadu Nath and the Anganwadi Centre. P.W.2 stated that the place of occurrence was not visible from the Anganwadi Centre. P.W.3 like P.W.1, deposed that the residence of Uma Nath and one grocery shop are located between the residence of Jadu Nath and the Anganwadi Centre. P.W.5 also testified that the residence of Uma Nath is next to the residence of Jadu Nath and thereafter, a grocery shop is located in between the residence of Uma Nath and the Anganwadi Centre. All these witnesses - P.W.1, P.W.2, P.W.3 and P.W.5 - are permanent residents of the said village and are well aware of the topography of the village. The I.O. [P.W.8] on receipt of the FIR, visited the place of occurrence at village Chutiya Katoni Molia Gaon. According to him, the place of occurrence was on the road near Nemuguri L.P. School and accordingly, he drew a sketch map [Ext-4] of the place of occurrence and also recorded the statements of the witnesses at the place of occurrence. In the sketch map, the I.O. did not mention the location of the Anganwadi Centre. Though he stated that one L.P.School and one Anganwadi Centre were located near place of occurrence he did not draw the location of the Anganwadi Centre in the sketch map as it was not visible from the place of occurrence. Thus, from the above evidence on record it has clearly emerged that in between the place of occurrence which was on a public road in front of the entry gate of the residence of Jadu Nath, and the Anganwadi Centre the residence of one Uma Nath and one grocery shop are located. If such is the topography of the area, it appears quite implausible to accept a version that P.W.2 and P.W.3 by peeping through the window of the Anganwadi Centre where they were busy with teaching and cooking along with 30 pupils, to hear talks between Balaram Duarah and Akoni Chetiya even if Balaram Duarah used to be a loud talking person. It also appears quite implausible to accept the version of these two witnesses unhesitantly that they had seen the incident of assault when according to the I.O. as well as P.W.2, the place of occurrence was not visible from the Anganwadi Centre.

23. The alleged occurrence stated to have taken place at around 10-30 a.m. which is a time when people are usually available on the road. Yet, no other person from the village Page No.# 13/16

who had seen the occurrence, other than P.W.2 and P.W.3, was examined by the prosecution. It can be noticed that the above two prosecution witnesses are related to the deceased and therefore, can be termed as interested witnesses. It is true that the evidence of an interested witness is not to be lightly overlooked. It is also settled that if it is consistent, it can be relied upon and a conviction can be based on it on the premise that an interested witness is not likely to leave out the real culprit. It is noticeable that P.W.2 in spite of the fact that her younger brother-in-law sustained an injury caused by a saw which she had claimed to have witnessed, did not come out of the Anganwadi Centre to assist in taking her brother-in-law to a health facility and remained busy even thereafter, with teaching and cooking for the pupils at the Centre. The testimonies of P.W.2 and P.W.3 as regards visibility of the place of occurrence from the Anganwadi Centre are found at variance with each other when they stated to have seen the same incident at the same time from the same place. Thus, in the case in hand, the veracity of the testimonies of these two witnesses have come under a cloud on the said aspect. Over and above that, the embellishments they have made in their evidence before the court have further weakened their versions on the reliability aspect.

24. From a scrutiny of the evidence on record, the alleged weapon of assault has also become a matter of dispute. The I.O. [P.W.8] in his testimony, had stated that at around 03-00 p.m. on the date of incident, the accused arrived at the Police Station and informed that he came there, after cutting the deceased with a handsaw. He stated to have entered the information in the entry book maintained at Bakata Nemuguri Police Station and interrogated the accused. In his re-examination, P.W.8 exhibited the relevant G.D. Entry 381 dated 26.09.2018 as Ext-7(iv) [proved in original] and Ext-7(v) [true certified copy]. On perusal of Ext-7(iv) and Ext-7(v), entered at 03-00 p.m., it can be seen that the entry recorded was only to the effect that the accused appeared at the Police Station and necessary steps would be taken. The said entry was silent about the handsaw with which the accused stated to have arrived at the Police Station, as per the version of the I.O. [P.W.8]. At the same point, the I.O. in his examination-in-chief, also stated that he took Page No.# 14/16

the accused to the place of occurrence and as shown by him, he seized one handsaw from the house of the accused vide Ext-2 and exhibited the seized handsaw as Mat.Ext-1. As per Ext-2, the seizure was made at 10-30 p.m. on 26.09.2018. On the other hand, P.W.7 who was a seizure witness to Ext-2, deposed to the effect that police came to their village at around 02-00/03-00 p.m. and went to the residence of the accused. The police officer seized one handsaw on being handed over by the parents of the accused, vide Ext-

2. He did not speak about the presence of the accused with the I.O. He proved the seizure list [Ext-2] and also the seized handsaw [Mat.Ext-1]. Thus, there is discrepancy between the testimony of I.O. [P.W.8] and the testimony of P.W.7, a seizure witness, as regards the time of seizure of the alleged handsaw [Mat.Ext-1] and about the presence of the accused at the time of seizure. There is also discrepancy between their testimonies as regards the person from whom the same was seized. P.W.2 who claimed to be the eye- witness had, in her cross-examination, deposed that the saw shown to her in the court was not the saw used by the accused in assaulting the deceased.

25. The saw which was seized vide Ext-2, was a small saw which was about 17" long. Its handle of 7" long was made of plastic. The sharp portion of the saw of 10" long was made of tin. The small saw was not sent for serological test. The doctor [P.W.6] who conducted the autopsy, was not shown the seized handsaw. In his testimony, P.W.6 had deposed that in sharp cut injuries, the wound is clean on both the sides and on the depth. He further stated that on getting the injury as mentioned in the post-mortem examination report [Ext-2], the patient might be in a position to talk. When asked by the defence, he categorically stated that in the event of use of a handsaw, there should have been some irregularity in the cut portion and the underlying muscles. If one looks at the injury at Ext- 1, sustained by the deceased, it can be seen that the margins of the wound were regular and clean cut. From the above inconsistencies between the medical evidence and the ocular evidence, it has created a further doubt as to whether the injury sustained by the deceased was caused by a handsaw or by any other sharp cutting weapon. As a corollary, it has also created a doubt as regards the veracity of the testimonies of P.W.2 and P.W.3, Page No.# 15/16

claimed to be the eye-witnesses by the prosecution. In the above fact situation obtaining in the case, the medical evidence and the ocular evidence cannot be said to be consistent with each other. Though ocular testimony of the witnesses has greater evidentiary value vis-à-vis medical evidence, but when medical evidence improbabilises the ocular testimony it becomes a relevant factor in the process of evaluation of evidence. In the case in hand, the medical evidence has improbabilised the version regarding the weapon on assault to a great extent. Coupled with the embellishments made by the two eye- witnesses, the inconsistencies have further weakened the case of the prosecution.

26. The primary duty of the prosecution is to establish the charge against the accused by cogent and reliable evidence and to prove the charge beyond all reasonable doubts. If upon evaluation of the evidence it gives rise to a doubt as to whether the accused was really the perpetrator of the crime or not then the benefit of doubt, as per the principles of criminal jurisprudence, should go to the accused. If discrepancies on material aspects are found in the case of the prosecution, thereby, probabilising a situation that the accused who has been charged of committing the crime might or might not be the perpetrator then the accused is to be given the benefit of doubt. In the light of the discussions made above with regard to the evidence led by the prosecution in the case in hand, we are of the considered view that the prosecution has failed to bring home the charge of murder under Section 302, IPC beyond all reasonable doubts against the accused-appellant. In such view of the matter, the criminal appeal succeeds. Consequently, the accused-appellant is acquitted of the charge of murder on benefit of doubt. Accordingly, the accused-appellant is to be set at liberty forthwith, if his custody is not required in connection with any other case.

27. Appreciating the assistance rendered by Ms. M. Barman, learned Amicus Curiae, we hereby provide that she will be entitled to Rs. 7,500/- as professional fee, which shall be paid to her by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment.

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28. This Court acknowledging the services rendered by Mr. U. Choudhury, as a Legal Aid Counsel in the case expects that the Secretary, High Court Legal Services Committee shall ensure an expeditious disbursement of his professional fees in terms of the prescribed act/rules/regulations.

29. The LCR be sent back forthwith.

                                    JUDGE                            JUDGE




Comparing Assistant