Gauhati High Court
Page No.# 1/15 vs The State Of Assam on 17 February, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/15
GAHC010135322022
2025:GAU-AS:1615-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/68/2022
TOPESWAR RABHA
S/O. SRI MUNNA RABHA, VILL. CHOPAI BALIGAON, P.S. DHEKIAJULI,
DIST. SONITPUR, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MS S ROY (Amicus Curiae), MR. K SARMA,MR. S BORUAH
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
HONOURABLE MR. JUSTICE K. SEMA
Advocate for the Appellant : Shri K. Sarma, Advocate
Advocate for the respondents : Ms. B. Bhuyan, APP, Assam
Date of hearing : 27.01.2025
Date of Judgment : 17.02.2025
Page No.# 2/15
Judgment & Order
(S.K. Medhi, J.)
The instant appeal was initially preferred from jail against judgment
and order dated 06.05.2022 passed by the learned Sessions Judge,
Sonitpur in Sessions Case No. 04/2019 convicted the appellant under
Section 302 of the Indian Penal Code and sentenced him to undergo
imprisonment for life and to pay fine of Rs.5,000/- in default to undergo SI
for another 3 months. However, subsequently, learned counsel has been
engaged on behalf of the appellant.
2. The criminal law was set into motion by lodging of an Ejahar by
PW1, who is the brother of the deceased. The Ejahar which was lodged on
01.05.2018 had alleged that on the previous day i.e. 30.04.2018 at about
04:00 PM, his elder brother Raju Bhengra, who was aged about 75 years,
was assaulted by the accused persons with bamboo stick causing grievous
injury. As a result of the said assault, his elder brother had become
unconscious and fell on the ground. On hearing the news, the informant
had come and saw his elder brother on the ground in an unconscious state
and he was taken to the Dhekiajuli Monbor Nath Primary Health Centre.
However, for better treatment, he was referred to the Tezpur Medical
College Hospital (hereinafter, TMCH). Based on the aforesaid Ejahar, the
formal FIR was registered and investigation was done leading to laying of
the Charge Sheet. The charges were accordingly framed and on its denial,
the trial had begun in which the prosecution had adduced evidence through
11 nos. of witnesses. It may be mentioned that at the time of lodging of an
FIR, the elder brother of the informant was still alive. However, within 3
days, the elder brother passed away and accordingly, Section 302 of the
Page No.# 3/15
IPC was added.
3. PW1 is the informant, who is the brother of the victim. He had
stated that on the fateful day at about 04:00 PM, the deceased had gone to
bring cattle from the field. The appellant was chasing away two boys who
were there on the field and not succeeding, he had assaulted the back side
of the head of the deceased with slitted bamboo. The 2 boys informed him
about the incident when the PW1 was collecting betel nut. He along with
another person - Ujjal Sarkar (PW3) rushed to the field and found his elder
brother in a senseless condition and also found the accused sitting on the
field with a split bamboo. When he had asked the accused why he had
assaulted his brother, the accused attempted to attack him with a dao. He
accordingly, returned home and went to the Police Station. The deceased
was taken to the Hospital. The FIR has been proved as Ext. 1. He has also
deposed that after three days from shifting to the TMCH, his elder brother
had expired. In his cross-examination, though he had deposed that he did
not know the number of sons of Munna Rabha, it was not a fact that before
the Police or in the FIR, he did not mention the name of the accused.
4. PW2 is a person of the locality, who had deposed that on the fateful
afternoon, he had gone to the field to bring cattle and the deceased had
also gone to bring his cattle. At that time, two boys were chasing the cattle
and the accused, after chasing the boys with a lathi had assaulted the
deceased, over his head, as a result of which he had sustained injuries with
bleeding and fell on the ground. Thereafter, he along with the informant
and one son-in-law had taken the deceased home and then to the Hospital.
At the TMCH, the deceased had expired after 3-4 days. The lathi was seized
which was produced by the informant and PW2 is a witness in the Seizure
Page No.# 4/15
List. PW2 was subjected to cross-examination.
5. PW3 is a co-villager and on that day, he had gone to the house of
the informant to collect betel nut and when he was sitting along with the
informant, they heard a hue and cry that the deceased was killed. Then the
informant had rushed to the place of occurrence followed by him and they
found the deceased lying on the field in a senseless position and froth was
coming out from his mouth and the appellant was having a stick in his hand
and quarreling with the informant. He had also alleged that the appellant
had also attempted to attack him with the lathi and thereafter threw the
lathi and attacked him with a dao for which, he had sustained cut injuries
on his leg. He had stated about taking the deceased to the Hospital and
after two days, he had died at the TMCH. In cross-examination, he had
clarified that the distance from the place of occurrence to the house of the
informant was about 150 meters.
6. PW4 and PW5 had narrated the incident of assault and death of the
deceased. PW4 had stated that on hearing about the incident, he had
rushed to the place of occurrence and saw the deceased lying on the field
whereafter, he was taken to the Hospital and he had accompanied. He is
also a seizure witness regarding the seizure list Ext. 2. PW 5 appear to be
hearsay witness.
7. PW6 is the brother-in-law of the informant and is an eyewitness. He
had deposed that on the date of the incident, at about 03:00 PM, the
deceased had gone to the field to bring the cow and then the appellant had
inflicted blow to the deceased with bamboo piece. At that time, he had also
gone to the field to bring his cow and he saw the incident. After that, he
had immediately informed regarding the incident to the informant and two
Page No.# 5/15
other persons (PW3 and PW4) and along with them had come to the field
again to bring the injured deceased when the appellant had chased them
with a dao. After the appellant had left the field, the deceased was at first
brought home and thereafter to the Hospital and he had died after about
two days. In the cross-examination, he had reiterated that he had seen the
incident.
8. PW7 is the cousin of the informant, who however was declared
hostile. In his cross-examination by the prosecution, he had denied stating
before the Police that he had seen the appellant assaulting the deceased on
the field. PW8 is another co-villager, who had deposed that on the fateful
day at about 03:30 PM, when he was working at his home, he had seen
some persons running towards the field and on coming out, he saw the
deceased lying senseless on the ground and the appellant was also there.
At that time, the mother of the appellant gave him a dao and with the said
dao, the appellant had chased the villagers, who had come there to take
the deceased. He heard from the villagers that the appellant had inflicted
blows to the deceased with a bamboo piece and the deceased was
hospitalized. He deposed of witnessing injuries on the back side of the head
of the deceased. The said PW8 was subjected to cross-examination.
9. PW9 is the I.O., who had conducted the investigation. He had
proved his signature in the FIR as Exhibit 1(2). He had also stated
regarding the steps taken for getting the inquest done and adding of
Section 302 IPC on the death of the victim. The Charge Sheet has been
proved as Ext. 4. In the cross-examination, however, he had admitted that
the FIR did not disclose the name of the appellant as such. He had also
admitted that at the time of inquest, he was not present.
Page No.# 6/15
10. PW10 is the Doctor, who had conducted the post-mortem on the
deceased. As per his opinion, the death was due to coma, as a result of
head injury and all the injuries present were ante mortem and caused by a
blunt force impact. As regards the injuries noted, he had come to a finding
in the following manner:
"Cranium and Spinal Canal:
(1) Scalp -
(i) a contusion of size 2cm x 3 cm is seen over occipital
region in the midline 4cm above the base of the neck.
(ii) a contusion of size 2cm x 4cm is seen over the left
temporal region.
(2) Skull-
(i) a linear fracture of size 2cm x 4cm is seen under
scalp injury No.(i).
(ii) a linear fracture of size 2cm x 6cm is seen over the
left temporal bone 3cm above the left ear.
(3) Vertebrae - all healthy.
(4) Membrane - congested, and extradural haemorrhage of
size 5cm x 6cm is seen over the left tempero parietal lobe.
(5) Brain - congested, intera-cerebral haemorrhage is seen in
both cerebral hemispheres.
(6) Spinal cord not examined."
11. PW11 is the I.O. in whose presence the inquest was done and the
Page No.# 7/15
Inquest Report was proved as Ext. 3. He had also proved the Sketch Map
as Ext. 6 and the splitted bamboo lathi was proved as Material Ext. 1. The
said PW11 was also subjected to cross-examination.
12. After conclusion of the prosecution witness, the incriminating
materials were placed before the appellant in his examination under Section
313 of the CrPC. It may be mentioned that in response to question No. 2,
the appellant had tried to project a defence of alibi by stating that on the
date of the incident, he had gone to the forest at 06:00 AM to collect
firewood and had returned home at 12:00 noon. Thereafter, he was busy in
making pandal in the house of one Deba. So far as the other incriminating
materials against him are concerned, the appellant had responded that the
same were false. Against the question No. 4, which is on the aspect as to
whether any defence witness would be adduced, though the answer was in
the affirmative, no defence witness was adduced.
13. On the basis of the materials, including the response of the appellant
in his examination under Section 313 of the CrPC, the learned Trial Court
had passed the impugned judgment of conviction, which is the subject
matter of this appeal.
14. We have heard Shri K. Sarma, learned counsel for the appellant. We
have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor,
Assam.
15. Shri Sharma, the learned counsel for the appellant has submitted
that the Ejahar which is the foundation of the case does not specifically
name the appellant. He has submitted that a vague description has been
given regarding the accused appellant as being son of Munna Rabha and
Page No.# 8/15
another accused as wife of Munna Rabha. It is submitted that though, the
name of the father of the appellant is Munna Rabha, there can be other
sons of Munna Rabha whose description is also not properly given. As
regards the accused No. 2, no charges were framed against her and
therefore, the trial had proceeded against the sole appellant, who has
preferred this present appeal. He submits that the identity of the appellant
being in doubt, the trial could not have proceeded.
16. As regards the evidence, the learned counsel has submitted that
none of the witnesses has specifically stated regarding witnessing the
incident of assault by his client upon the deceased. He submits that the
witnesses are hearsay and there is no direct evidence. At the same time, he
submits that the chain of circumstances are not complete so as to come to
a definite conclusion of involvement of the appellant with the commission
of the offence and none else. He has submitted that PW1 had stated in his
evidence that there were 2 boys on the field, who were, at first chased by
the appellant. However, the said 2 boys who were of the same village were
not named or examined. He has submitted that the deposition of PW1
would not lead to infer any motive behind such an act.
17. As regards PW2, the learned counsel has submitted that he had
stated that the lathi was seized by the police on being produced by the
informant and not from the hands of the appellant. He submits that though
PW3 had alleged of he himself being assaulted with a dao by the appellant,
the same was not substantiated by any medical evidence. As regards the
evidence of PW4 and PW5, the learned counsel has submitted that the said
witnesses are merely hearsay and their versions cannot be relied upon. As
regards the deposition of PW6, the learned counsel has submitted that
Page No.# 9/15
though the PW6 had claimed to be an eyewitness, his version is not clear.
He has also submitted that the said PW6 is interested witness as he is the
brother-in-law of the informant.
18. The learned counsel has laid immense stress on the description of
the weapon used for commission of the offence. He has submitted that the
injury found by the Doctor conducting the post-mortem is blunt injury. He
submits that on the other hand, as per the ocular evidence, a split bamboo
was used. He submits that a split bamboo cannot cause a blunt injury. He
has highlighted the aspect that from the deposition on record, no intention
or motive can be inferred which can implicate the appellant. He has also
submitted that the conviction appears to be on the basis of suspicion which
cannot be the foundation in a criminal case. He has also submitted that
there are inconsistencies with regard to the description of the weapon used
in the assault.
19. Per contra, Ms. Bhuyan, learned Additional Public Prosecutor has
submitted that there is a direct evidence in the form of PW6. It is submitted
that PW6 is an eyewitness and merely because he is the brother-in-law of
the informant, it would not be justified at all to discard his evidence. She
submits that his evidence is trustworthy and inspires confidence and
without there being any allegation of previous enmity with the appellant or
the apprehension of any false implication, such evidence can be taken into
consideration. It is submitted that the said PW6 had, in very clear terms
deposed of witnessing the assault of the deceased by the appellant. She
has also highlighted the aspect that PW1 and PW3, who may not be a
direct eyewitness to the assault, had reached the place of occurrence within
a very short span of time and they were also attacked by the appellant in
Page No.# 10/15
which the PW3 had also suffered injuries on the leg caused by the appellant
with a dao. It is on record that when the informant was arguing with the
appellant after finding his elder brother in a precarious state after being
assaulted by the appellant, the appellant had also assaulted and attacked
the informant as well as PW3. It is also on record that the mother of the
appellant had handed over him a dao with which he had caused injuries to
the PW3. She has also submitted that the medical evidence is consistent
with the evidence of the other witnesses as the description of the injuries
found, matches with those as per the deposition of the other witnesses.
20. The learned APP accordingly submits that the impugned judgment
does not suffer from any infirmity and accordingly the appeal should be
dismissed.
21. The rival submissions made by the learned counsel appearing for the
parties have been duly considered and the materials placed before this
Court, including the LCRs have been carefully examined.
22. In the instant case, there are 11 nos. of PWs out of which 3 are
official witnesses. From the remaining 8 nos. of PWs, there is one eye
witness in the form of PW6. A close examination of the deposition of PW6
would show that he had made a categorical statement of witnessing the
incident in the following manner:
"At that time, I also went to the field to bring my cow and saw the
incident. Seeing the incident, I immediately informed Anthoni
Bhengra, Ujal and Pintush. Thereafter, I along with them again
came to the field to bring the injured Raju Bhengra but then the
accused chased us with a dao".
Page No.# 11/15
In his cross-examination, he had negated the suggestion that he had
not seen the incident.
23. The aforesaid deposition of PW6 is to be tested side by side with the
depositions of Anthoni Bhengra, Ujal and Pintush, who were examined as
PW1, PW3 and PW4 respectively. The versions of the aforesaid three PWs,
apart from being consistent with each other also matches with the version
of the eye witness. In fact, the evidence of PW1, PW3 and PW4 are so
proximate to the time of occurrence which is coupled with the fact they
were also attacked by the appellant on reaching the place of occurrence
would bring in the application of res gestae. Their reaching the place of
occurrence within moments of the assault appears to be a part of the same
transaction which was in close proximity. Their evidence therefore is
required to be given credence.
24. The evidence of the Doctor, who had deposed as PW10 would also
be material and relevant. The description of the injuries made by PW10, in
the considered view of this Court matches with the description of the
allegation made by the PW1, PW2, PW3 and PW6. The allegation of use of
a split bamboo which itself was proved as Material Ext. 1 also matches with
the description of the injuries. This Court is unable to accept the contention
made on behalf of the appellant that a split bamboo cannot cause blunt
injuries. In the considered opinion of this Court, if the blunt side of a split
bamboo is used for assaulting, the injuries would be such that only a blunt
object would cause.
25. There is another aspect which is liable to be taken into consideration
which is with regard to the part of the body where the assault was made
vis-à-vis the age of the deceased and the record would show that the
Page No.# 12/15
deceased was an aged person of about 75 years and the assault was made
on his head by a split bamboo. When such an assault is made over a
person aged about 75 years on the head by a split bamboo, it cannot be
said that the assailant did not have the knowledge that such an assault, in
all likelihood is liable to cause death.
26. As regards the submission that the description of the appellant was
not clear and there is vagueness in the FIR, we are unable to accept the
said submission as the FIR had clearly stated that it was the son of Munna
Rabha who was involved and even the wife of Munna Rabha was made an
accused. The FIR being lodged at the heat of the moment, it would be
natural not to give the name of the appellant. However, when the name of
the father was specifically given along with the residential address, there is
no scope of any ambiguity.
27. As discussed above, in the examination of the appellant under
Section 313 of the CrPC, a defence of alibi was indicated. For ready
reference, the answer given to question no. 2 is extracted hereinbelow-
"Answer - It is false. I am innocent. On the day of incident, I went
to forest at 06:00 AM to collect fire wood and returned home at 12
noon. Thereafter, I was busy in making pandal in the house of one
Deba. I did not mind about the time I came in the house of Deba."
28. It may however be noted that though the appellant had responded
in the affirmative with regard to adducing of defence evidence, no such
defence evidence was adduced.
29. A plea of alibi is not a defence under Chapter IV of the IPC, namely,
"General Exceptions". It is a rule of evidence which is required to be
Page No.# 13/15
proved in accordance with law. On the aspect of alibi, the Hon'ble
Supreme Court in the case of Binay Kumar Singh Vs. State of Bihar
reported in (1997) 1 SSC 283, has been the following observations:
"21. The trial court and the High Court concurrently repelled,
in toto, the plea of alibi put forth by the above appellants
after dealing, in extenso, with the materials produced by
them in the Court in support of the plea. Learned counsel
who argued for the appellants in this Court submitted first
that the strict view adopted by the two courts below that
unless the plea of alibi is conclusively established no benefit
would enure to the accused, is not a sound proposition in
criminal cases. Learned counsel further contended that if an
accused succeeded in creating a reasonable doubt regarding
the possibility of himself being elsewhere then the plea of
alibi needs acceptance."
Though the appellant had answered that he was doing pandal work
in the house of one Deba, neither the said person Deba or anyone else
had adduced any evidence in that line.
30. It was argued on behalf of the appellant that there is no evidence
and the conviction is on suspicion. We are however, unable to accept the
said submission. We have noted that there are sufficient materials which
leads to a conclusion beyond all reasonable doubt regarding the
involvement of the appellant.
31. In the case of State of Punjab Vs. Karnail Singh reported in
(2003) 11 SCC 271, the following has been observed by Hon'ble
Page No.# 14/15
Supreme Court-
"12. Exaggerated devotion to the rule of benefit of doubt must
not nurture fanciful doubts or lingering suspicion and thereby
destroy social defence. Justice cannot be made sterile on the
plea that it is better to let hundred guilty escape than punish
an innocent. Letting guilty escape is not doing justice
according to law. (See : Gurbachan Singh v. Satpal Singh and
others, (AIR 1990 SC 209)). Prosecution is not required to
meet any and every hypothesis put forward by the accused.
(See State of U.P. v. Ashok Kumar Srivastava, (AIR 1992 SC
840)). A reasonable doubt is not an imaginary, trivial or merely
possible doubt, but a fair doubt based upon reason and
common sense. It must grow out of the evidence in the case.
If a case is proved perfectly, it is argued that it is artificial; if a
case has some flaws inevitable because human beings are
prone to err, it is argued that it is too imperfect. One wonders
whether in the meticulous hypersensitivity to eliminate a rare
innocent from being punished, many guilty persons must be
allowed to escape. Proof beyond reasonable doubt is a
guideline, not a fetish. (See Inder Singh and another v. State
Delhi Admn.), (AIR 1978 SC 1091). Vague hunches cannot
take place of judicial evaluation. "A judge does not preside
over a criminal trial, merely to see that no innocent man is
punished. A judge also presides to see that a guilty man does
not escape. Both are public duties." (Per Viscount Simon in
Stirland v. Director of Public Prosecution (1944 AC (PC) 315))
Page No.# 15/15
quoted in State of U.P. v. Anil Singh, (AIR 1988 SC 1998).
Doubts would be called reasonable if they are free from a zest
for abstract speculation. Law cannot afford any favourite other
than truth."
32. In conspectus of the aforesaid discussion and the materials on
record, we are of the view that the conclusion arrived at by the learned
Sessions Judge, Sonitpur in convicting and sentencing the appellant under
Section 302 of the IPC vide the judgment and order dated 06.05.2022 in
Sessions Case No. 04/2019 does not warrant any interference.
33. The appeal is accordingly dismissed.
34. Send back the LCRs.
JUDGE JUDGE
Comparing Assistant
