Gauhati High Court
Dukeswar Rabha vs The State Of Assam on 26 May, 2023
Page No.# 1/3
GAHC010137912020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/61/2020
DUKESWAR RABHA
S/O. SOBI RAM RABHA, VILL. NAMDANI MODATI, P.S. KAZIGAON, DIST.
KOKRAJHAR.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MS. M BARMAN, AMICUS CURIAE
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR
HON'BLE MR. JUSTICE KARDAK ETE
26.05.2023 ORDER
(Lanusungkum Jamir, J.)
Heard Ms. M. Barman, learned amicus curiae. Also heard Ms. B. Bhuyan,
learned Additional Public Prosecutor, Assam.
2. This appeal is directed against the judgment dated 04.10.2019 passed by
the learned Additional Sessions Judge (FTC), Kokrajhar in Sessions Case
No.216/2017 under Sections 302/201 IPC whereby the appellant was convicted
and sentenced to undergo rigorous imprisonment for life with fine of
Rs.10,000/- and in default to suffer further imprisonment for 1 (one) year under
Section 302 IPC and also to undergo seven years imprisonment with fine of
Page No.# 2/3
Rs.5,000/- and in default to suffer further imprisonment for 6 (six) months
under Section 201 IPC.
3. During the course of argument and while appreciating the evidences, we
find that PW1, Trinath Rabha, who is the informant, stated that the
accused/appellant himself led the police team to the place where the dead body
was buried. Further, he stated that a village meeting was called in which the
accused/appellant admitted that he suspected the deceased Suresh Chandra
Rabha of practicing witchcraft and accordingly he had murdered him in the
mountain.
4. PW2 also stated that the accused/appellant admitted in front of the
villagers that he killed Suresh Chandra Rabha because of previous enmity and
he had buried the body near the mountain. Same is the deposition of PW3, PW4
and PW5.
5. Surprisingly, we find that the I/O of the case was not examined by the
prosecution.
6. Consideration of the evidence of PW1 would clearly indicate that the
accused/appellant had led the police to the place where the dead body was
buried. Thereafter, on recovery, inquest was performed by the Executive
Magistrate, Parbotjhora, Kazigaon. Post mortem was also conducted and
chemical analysis was sent to the Director of Forensic Science Laboratory,
Kahilipara.
7. We find that the Medical Officer, who conducted the post mortem, the
person, who conducted the FSL test as well as the Magistrate, who performed
the inquest, were not examined.
8. Accordingly, we find that additional evidence is required for coming to a
just conclusion to see that justice is done between the prosecutor and also the
Page No.# 3/3
person prosecuted against.
9. In that view of the matter, we direct the learned Additional Sessions Judge
(FTC), Kokrajhar to take further evidence of the I/O concerned, the Medical
Officer, the Executive Magistrate, who performed the inquest and also the
officer, who performed the FSL test for coming to a just conclusion in the
matter.
The accused/appellant may also be permitted to adduce evidence, if he so
desires.
10. Let such examination of witnesses as directed here-in-above be completed
within a period of three months from the date of receipt of the LCRs and
thereafter pronounce a fresh judgment.
11. Consequently, the judgment dated 04.10.2019 passed by the learned
Additional Sessions Judge (FTC), Kokrajhar in Sessions Case No.216/2017 under
Sections 302/201 IPC is set aside. However, we make it clear that by setting
aside the judgment dated 04.10.2019 the trial Court should not assume that the
judgment is wrong.
12. Registry is directed to send back the LCRs forthwith to the Court of
learned Additional Sessions Judge (FTC), Kokrajhar.
13. We record our appreciation to the learned amicus curiae for ably assisting
the Court and she shall be entitled to remuneration, which shall be determined
by the Assam State Legal Services Authority.
14. The appeal is, accordingly, disposed of.
JUDGE JUDGE
Comparing Assistant
