Gauhati High Court
Crl.A./179/2011 on 12 June, 2025
GAHC010108102011
2025:GAU-AS:8402
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL.A NO.169 OF 2011
1. Sri Bikash Changmai,
S/o- Sri Nabin Changmai.
2. Sri Jadumoni Konwar,
S/o- Sri Biren Konwar
3. Sri Babu Changmai alias
Chandan Changmai,
S/o- Sri Gajen Changmai.
All are residents of:-
Village- Konwarpur Karijan,
P.O.- Konwarpur,
P.S.- Sivasagar,
District- Sivasagar, Assam.
.......Appellants
-Versus-
The State of Assam.
.......Respondent
WITH
CRL.A NO.179 OF 2011
1. Shri Ananta Changmai
S/o- Shri Biren Changmai,
Page 1 of 31
R/o- Village Loraputa,
P.S.- Sivasagar,
P.O.- Chenimora,
PIN- 785640, Assam.
2. Shri Sanjit Changmai,
S/o- Sri Biren Changmai,
R/o- Village Loraputa,
P.S.- Sivasagar,
P.O.- Chenimora,
PIN- 785640, Assam.
3. Shri Latu Changmai,
S/o- Late Haren Changmai.
R/o- Karigaon,
P.S.- Sivasagar,
P.O.- Konwarpur,
PIN- 785557, Assam.
4. Sri Ranjan Changmai,
S/o- Late Haren Changmai.
R/o- Village Karigoan,
P.S.- Sivasagar,
P.O.- Konwarpur,
PIN- 785557, Assam.
5. Sri Tarun Changmai,
S/o- Late Hambhor Changmai.
R/o- Village Loraputa,
P.S.- Sivasagar,
P.O.- Chenimora,
PIN- 785640, Assam.
.......Appellants
-Versus-
The State of Assam.
.......Respondent
Page 2 of 31
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner(s) : Mr. M. K. Das, Legal Aid Counsel.
For the Respondent(s) : Mr. P. Borthakur, Additional Public
Prosecutor, Assam.
Date of Hearing : 12.06.2025.
Date of Judgment : 12.06.2025.
JUDGMENT & ORDER (ORAL)
Heard Mr. M. K. Das, learned Legal Aid Counsel
appearing for the appellants. Also heard Mr. P. Borthakur,
learned Additional Public Prosecutor for the State
respondent.
2. These criminal appeals are being presented
against the judgment & order dated 23.08.2011, passed
by the learned Sessions Judge, Sivasagar (hereinafter
referred to as the "trial Court"), in Sessions Case
No.115(S-S)/2006, whereby the appellants/accused
persons were convicted under Section 148 of the Indian
Penal Code, 1860 (hereinafter referred to as "IPC") with
simple imprisonment for 6(six) months each, and under
Section 304 Part-II of the IPC, read with Section 149 of
the IPC with rigorous imprisonment for 4(four) years, with
the direction to run both the sentences concurrently.
3. Both the criminal appeals having been arisen out
from the aforesaid judgment & order of the trial Court, is
being taken up together for disposal by this common
judgment.
4. The brief facts of the case are that PW-1 lodged
an F.I.R. on 08.03.2004, alleging, inter alia, that on
07.03.2004, the appellants/accused persons No. 1, 3 and 5
in Criminal Appeal No.179 of 2011, along with some
others, assaulted his brother Nathu Borgohain (hereinafter
referred to as the "deceased") on his head and various
parts of his body with dao, sticks, etc., and thus, caused
grievous injury to him, and that after being admitted to the
hospital, he expired on 08.03.2004. Accordingly, a case
was registered as Sivasagar P.S. Case No.75/2004, under
Section 147/148/149/302 of the IPC. Thereafter, PW-23
conducted the investigation, wherein the statement of the
informant and the other witnesses were recorded under
Section 161 of the Code of Criminal Procedure (hereinafter
referred to as "Cr.P.C."), and after completion of the
investigation, submitted a Charge-sheet against all the
appellants/accused persons under Section
147/148/149/341/342/302 of the IPC.
5. Upon appearance of the appellants/accused
persons before the trial Court, the trial Court framed
charges under Section 148/342 of the IPC and under
Section 302/149 of the IPC. The prosecution examined
24(twenty four) nos. of prosecution witnesses, who were
also cross-examined by the defence side. Thereafter,
incriminating evidence was put to the appellants/accused
persons under Section 313 of the Cr.P.C., wherein the
appellants/accused persons had generally denied all the
incriminating circumstances; however, they had adduced
the evidence of 3(three) nos. of defence witnesses. Upon
completion of trial and hearing both sides, the
appellants/accused persons were convicted and sentenced
thereof. Against the aforesaid conviction and sentencing
order, the present appeals have been filed.
6. Mr. M. K. Das, learned Legal Aid Counsel
appearing for the appellants, submits that the prosecution
has miserably failed to establish the charged offences
beyond any reasonable doubt, and hence, the impugned
judgment & order of the trial Court is totally erroneous and
perverse. He further submits that there is no evidence
whatsoever indicating that the appellants/accused persons
had any role to play in the alleged murder of the deceased.
He further submits that it has clearly come out from the
prosecution evidence itself that one of the
appellants/accused persons is a friend of the deceased and
after the deceased misbehaved at a wedding in the
neighbourhood, he was taken by the appellants/accused
persons, including his friend, from there. He further
submits that the defence has also, by adducing defence
witnesses probabilized the aforesaid defence and the
standard of proof, as far as the defence is concerned,
being the standard of preponderance of probability, the
trial Court ought to have given the benefit of the doubt to
the appellants/accused persons.
7. Per contra, Mr. P. Borthakur, learned Additional
Public Prosecutor for the State respondent, submits that
PW-9 having recognized one of the appellants/accused
persons, the conviction needs no interference from this
court. He further submits it has clearly come out from the
evidence of the prosecution witnesses that the deceased
was last seen in the company of the appellants/accused
persons, who were taking the deceased towards the place
from where the body of the deceased was found in an
injured state. He further submits that the deceased having
informed PW-1 while he was being treated at the hospital
that the appellants/accused persons had assaulted him,
which having been corroborated by PW-12 and PW-20, the
offences have been clearly established against the
appellants/accused persons. He further submits that PW-9
has also recognized the appellant/accused No.1 in Criminal
Appeal No.179/2011, being one of the persons who had
assaulted the deceased; the guilt of the appellant/accused
persons has been clearly established.
8. I have given my prudent consideration to the
arguments advanced by the learned counsels for both the
contending parties, and also perused the material available
on record.
9. These appeals being against conviction, let me
first analyze and examine the evidence adduced before the
trial Court.
10. PW-1 is the brother of the deceased, who lodged
the F.I.R. He deposed that on the date of occurrence,
when he returned home, his mother told him that the
appellants/accused persons No.1 and 2 in Criminal Appeal
No. 179/2011 tied the deceased and took him to Karigaon.
He further deposed that he accordingly went looking for
the deceased, and upon reaching Karigaon, he was told by
one person that one boy was arrested from there by the
police. He further deposed that he accordingly went to the
Police Station, where he came to know that the deceased
was taken to Civil Hospital and upon reaching the Civil
Hospital, he saw his brother bleeding from his head, and
upon asking the deceased, he told him that the
appellants/accused person Nos. 1, 2, 4 & 5 in Criminal
Appeal No.179/2011, appellants/accused person Nos.1, 2
and 3 in Criminal Appeal No.169/2011, with few other
persons assaulted him with rods and sticks. Thereafter, he
became speechless at about 7 pm, and later on died at the
hospital. He further deposed that he has accordingly
lodged the F.I.R., and exhibited the same along with his
signature. He further stated that police seized the bamboo
stick from the place of occurrence and that he does not
know why the appellants/accused persons killed his
brother.
11. During cross-examination, he clarified that his
mother is alive. He further clarified that he saw only one
blood injury on the head of the deceased. He further
clarified that he mentioned only the names of the
appellants/accused persons No.1, 3 & 5 in Criminal Appeal
No.179/2011, and that he knew the names of the
appellants/accused persons from the deceased before the
F.I.R., was lodged. He further clarified that PW-20 was
with him when he went to the hospital and talked to the
deceased. He further denied the suggestion that he did not
tell police that the deceased had told him the names of the
appellants/accused persons who assaulted him. He further
denied the suggestion that he told the police that the
appellants/accused persons had taken the deceased to
Karigaon and admitted him into the hospital for his
treatment. He further denied the suggestion that the
deceased did not tell him the names of the
appellants/accused persons prior to his death. He further
denied the suggestion that the deceased forcibly used to
enter the houses of the people in the neighbourhood, and
when the women of the neighbourhood saw him, they shut
their doors. He further denied the suggestion that when
the deceased had committed the untoward incident at the
wedding of Nalia's daughter, the people present at the
wedding kept him tied and assaulted him, and he was
released the next day morning.
12. PW-2, who is a salesman in the locality, deposed
that the deceased died after he was tied and taken away
by some boys. She further deposed that when she went to
attend a Sakam at one Suraj Saikia's house, she heard
from the women there that the deceased was caught and
taken away. She further deposed that she saw the
appellants/accused person Nos. 3 and 5 in Criminal Appeal
No.179/2011 catching the deceased and taking him away.
13. During cross-examination, she clarified that she
did not see from where the deceased was caught and
taken away. She further clarified that about 10 to 12
persons were present in the house where the Sakam was
organized. She further clarified that the deceased used to
carry two daos and roam around in their locality. She
further clarified that Nalia's house can be reached after
crossing the river Darika and that there was a marriage in
his house before the day of occurrence. She further
clarified that it takes about two hours to reach Karigaon
from their village and that between the field and the
village, there is a forest.
14. PW-3, who is a co-villager, deposed that there
was a Sakam going on at his house and that upon hearing
a commotion outside, when he reached the gateway, he
saw the appellants/accused persons No. 1, 2, 3 and 4 in
Criminal Appeal No.179/2011, and appellant/accused No.2
in Criminal Appeal No.169/2011, and a few others taking
the deceased away.
15. During cross-examination, he clarified that he saw
the deceased being carried to the embankment but did not
see him being taken to Karigaon. He further deposed that
a day before the incident there was a marriage ritual being
performed at Nalia's house. He further deposed that the
embankment to which the deceased was taken is 200 feet
away from their house. He further denied the suggestion
that the people assaulted the deceased for creating a
nuisance at the marriage in Nalia's house, and owing to
that, the deceased was lying in the field, and some people
took him to the hospital, and later he died therein. He
further clarified that the deceased was a friend of the
appellant/accused No.1 in Criminal Appeal No.179/2011,
and that the deceased lived in the house of Nijara, the
mother of the appellant/accused No.1
16. PW-4, who is a co-villager, deposed that at the
time of occurrence, her father-in-law's Sakam was going
on. She further deposed that later on she heard that the
deceased was assaulted.
17. During cross-examination she clarified that
subsequent to the death of the deceased, people of his
village i.e., Panbecha Luraputa Gaon were called to the
Police Station and some of them were released from the
Police Station, and some of them were sent to jail. She
further denied the suggestion that the deceased was
assaulted and tied up at the wedding at Nalia's house.
18. PW-5, who is another co-villager, deposed that
she came to know that the appellants/accused person
Nos.1, 2 and 5 in Criminal Appeal No.179/2011 caught the
deceased and took him away.
19. During cross-examination she clarified that she
heard that the deceased was assaulted at the marriage at
Nalia's house and that the deceased died in the hospital.
20. PW-6 similarly deposed that he heard from
children outside that the deceased was caught, and when
he came outside, he saw the appellant/accused person
Nos.1, 2 and 5 in Criminal Appeal No.179/2011 taking the
deceased towards Karigaon.
21. During cross-examination he clarified that when
he came outside upon hearing the shouting of the children,
no one else came with him, leaving the Sakam and except
for him, no one had witnessed what had happened. He
further clarified that he saw the backside of the accused
persons and the deceased and that he said that the
appellant/accused person Nos.1 and 2 in Criminal Appeal
No.179/2011 took the deceased because the children said
so. He further clarified that the children who told him were
5-7 years old. He further clarified that after he returned
back to the Sakam, he did not say anything to anyone. He
further clarified that he did not see who went in which
direction after crossing the embankment. He further
clarified that he heard that the deceased was assaulted at
the marriage in Nalia's house as he had created a nuisance
there. He further clarified that the deceased had a
friendship with the appellant/accused No.1 in Criminal
Appeal No.179/2011.
22. PW-7, who is also a co-villager, deposed that
while he was at the Sakam, upon hearing hue and cry
outside when he reached there, he saw that
appellant/accused person Nos.1, 2, 3 and 4 in Criminal
Appeal No.179/2011 and appellant/accused No.1 in
Criminal Appeal No.169/2011 were taking the deceased
away by dragging and pushing him.
23. During cross-examination he clarified that he saw
the appellant/accused persons and the deceased from
behind near the embankment and that he did not see the
accused persons assaulting the deceased when they were
taking him away.
24. PW-8, who is also a co-villager, deposed that
while he was at Sakam, upon hearing hue and cry, he went
out, and he was told by the children that the deceased had
been caught and taken away. He further deposed that
thereafter he saw the appellant/accused person Nos.1, 2, 3
and 4 in Criminal Appeal No.179/2011 and
appellant/accused No.1 in Criminal Appeal No.169/2011
dragging the deceased away. He further deposed that he
saw them reaching the road by crossing the embankment,
and taking the deceased towards Karigaon. He further
deposed that thereafter he came back to the Sakam.
25. During cross-examination, he clarified that he saw
around 10-15 people surrounding the deceased and
dragging him; however, he only saw the faces of a few and
the backs of the others. He further clarified that he did not
see the appellants/accused persons assaulting the
deceased. He further clarified that he does not recognize
all the persons who were taking the deceased away, as
some of them were from another village. He further
clarified that the women present in the Sakam came to
know from the children that the deceased was taken away.
26. PW-9, who is also a co-villager, deposed that she
came to know that some people caught a boy and tied him
under a Shimolu tree and then took him towards Karigaon.
She further deposed that she recognizes the
appellant/accused No.1 in Criminal Appeal No.179/2011 as
one of them. She further deposed that some persons dealt
a couple of blows to the boy; however, she did not tell
anyone.
27. During cross-examination, she clarified that she
could not recognize the boys who chased the deceased
and that about 9 people were chasing the deceased and
tied him up. She further clarified that she did not see who
among them killed the deceased. She further clarified that
she stated before the police that a boy chased the
deceased and fell him on the ground by dealing repeated
blows on his head by means of a lathi. She further clarified
that she did not see the deceased being tied near the
Shimolu tree. She further clarified that she did not see the
deceased being assaulted at that time. She clarified that
she did not see the appellant/accused No.1 in Criminal
Appeal No.179/2011 assaulting the deceased. She clarified
that the appellant/accused was a friend of the deceased.
28. PW-10, who is an uncle of the deceased,
deposed that he came to know that someone had tied the
deceased to a bamboo tree in front of their house.
29. PW-11, who is a passerby, deposed that at about
9.30 pm on the date of occurrence, when he was carrying
milk, he saw the appellant/accused Nos. 1 and 2 in
Criminal Appeal No.179/2011 and some 10-12 boys
dragging the deceased towards Karigaon.
30. During cross-examination he clarified that the
deceased is a friend of the appellant/accused No.1 in
Criminal Appeal No.179/2011 and that he saw the
deceased walking with the aforesaid appellants/accused
persons along with a few others.
31. PW-12, who is the elder brother of the deceased
of the informant, deposed that his mother told him that
PW-1 had told her that someone had apprehended and
tied the deceased and that thereafter he had been taken
away. He further deposed that PW-1 told him after coming
back that the deceased had been taken away by a few
people, and accordingly, he accompanied PW-1 to search
for their brother, and later on they found the deceased in
Civil Hospital. He further deposed that he saw blood over
the deceased's body and his finger cut. He further deposed
that he came to know after questioning the deceased that
the appellant/accused No.1, 2, 3 and 4 in Criminal Appeal
No.179/2011 had assaulted the deceased. He further
deposed that thereafter, he felt dizzy and fell down.
32. During cross-examination he clarified that when
the deceased was telling his brother PW-1 the names of
the people who had assaulted him, he was standing at a
distance of 12 feet. He denied the suggestion that he did
not tell the same to the police while giving his statement
under Section 161 of Cr.P.C.
33. PW-13, who is the Gaonburha, deposed that he
saw the deceased kept tied to a bamboo tree in front of
Hari Mandir of their village at Karigaon. He further clarified
that on the day of the incident, Holi was being celebrated
and there were people running in the field. He further
deposed that after seeing the deceased being tied to a
bamboo tree, he called the police. He further deposed that
he saw the appellant/accused No. 2 in Criminal Appeal
No.179/2011 and a few others standing near him at that
time.
34. During cross-examination he clarified that about
100 to 150 persons were there in the field at that time. He
further clarified that the police randomly arrested some
people in connection with the incident, and he also was
arrested but later on released on bail. He further clarified
that upon being enlarged on bail, he showed the police the
house of the appellants/accused persons.
35. PW-14 is the doctor, who conducted the post-
mortem deposed that upon examination, the following
were found:-
"External wounds-
1. Lacerated wound under the middle of the
joint of scalp 2" long and stitched.
2. Black eye left eye.
3. Abrasion over chest.
4. Abrasion right middle finger and great toe
of right foot.
Cranium and spinal canal:
Haematoma over the joint of scalp. Skull is
fracture of skull bone which was linear
fracture extending from the joint up to right
parietal bone.
Subdural haematoma below the fracture
site.
All other organs are healthy."
He further deposed that in his opinion the cause
of death was due to syncope as a result of head injury. He
further opined that the fracture injury may have been
caused by a lathi.
36. During cross-examination he clarified that injury
No.3 & 4 are superficial and simple, while the injury No.1 is
a lacerated wound under the middle of the joint of the
scalp, being fatal.
37. PW-15, who is a co-villager, similarly deposed
that he came to know that police had picked up a boy from
his village. His cross-examination was declined.
38. PW-16, who is another co-villager, deposed that
upon hearing commotion when he came out, he saw some
people. He further deposed that later he came to know
that the deceased died at Karigaon and that the
appellant/accused person Nos. 1, 2 and 3 in Criminal
Appeal No.179/2011 along with some other people, had
taken the deceased.
39. During cross-examination he clarified that he was
present at Nalia's house on the occasion of the marriage
ceremony. He further clarified that the people who were
present at Nalia's house had assaulted the deceased and
kept him tied there.
40. PW-17, who is another co-villager, deposed that
when he was attending a Sakam, he saw the deceased
being taken away by the appellant/accused person Nos.1 &
2 in Criminal Appeal No.179/2011, along with some other
people.
41. During cross-examination he clarified that the
deceased went on foot with the aforesaid
appellant/accused persons. He further clarified that the
deceased was a friend of the appellant/accused No.1 in
Criminal Appeal No.179/2011.
42. PW-18, who is a seizure witness, who testified
the seizing of the lathi as material exhibit-3.
43. PW-19 is a co-villager, who did not depose
anything substantial.
44. PW-20, who is a co-villager, deposed that when
he had gone to the hospital, he found the deceased there
in an injured condition and the deceased told him that the
appellant/accused person Nos.1 & 2 in Criminal Appeal
No.179/2011 had beaten him.
45. During cross-examination he clarified that after
the deceased told him about being beaten by the
appellant/accused Nos.1 & 2 in Criminal Appeal
No.179/2011, he went to bring clothes. He further clarified
that when the deceased told PW-1, a nurse was present
there. He further clarified that he never made a statement
before the police.
46. PW-21, who is a co-villager, who also did not
depose anything substantial.
47. PW-22 is the police officer, deposed that he
submitted the Charge-sheet after the investigation being
completed by his predecessor.
48. PW-23 is the Investigating Officer, who deposed
that upon receiving and registering the case, he went to
the hospital, whereafter, he prepared the Inquest Report in
the presence of witnesses. He further deposed that after
reaching the place of occurrence and inspecting the same,
he prepared a sketch map. He further deposed that he
seized one bamboo stick/lathi from the place of
occurrence. He further deposed that he came to know from
the witnesses that some 10 to 12 youths had assaulted the
deceased and taken him to Karigaon from village Loraputa.
He further deposed that he recorded the statement of the
witnesses, including the informant. He further deposed that
he handed the case diary to the Officer-in-Charge of the
Police Station as he was transferred.
49. During cross-examination he clarified that there
was no specific evidence to suggest that the seized lathi
was used in the offence. He denied the suggestion that he
arrested people randomly in connection with the incident
without having any incriminating material against them. He
further clarified that he did not get to know the names of
the people who had tied the deceased to a bamboo tree at
Karigaon. He further clarified that while making a
statement before him, PW-1 did not disclose that the
deceased had told him the names of the people who had
assaulted him and that the appellant/accused Nos. 1, 2 & 3
in Criminal Appeal No.179/2011, along with a few others,
apprehended the deceased and took him to Karigaon and
that the deceased was admitted to a hospital for
treatment. He further clarified that PW-12, while giving his
statement under Section 161 of the Cr.P.C., did not tell him
that the deceased told PW-1 the names of the
appellant/accused persons who had assaulted him.
50. PW-24 is the Judicial Magistrate, who recorded
the statement of the PW-3, PW-6, PW-7 and PW-8 under
Section 164 of the Cr.P.C.
51. After closure of the prosecution witnesses and
recording of the statement of the appellant/accused
persons under Section 313 of the Cr.P.C., the defence
adduced 3(three) defence witnesses, who are all co-
villagers i.e., (i) DW-1 Lakhi Gohain, (ii) DW-2 Rina Neog,
& (iii) DW-3 Kumud Bairagi.
52. DW-1 deposed that the deceased was an
alcoholic person and used to roam here and there after
consuming liquor. He further deposed that on the day of
the occurrence, it was Holi, and the night before, there
was a ritual being celebrated in the house of Nalia, which
he attended. He further deposed that many people
gathered in the ceremony, and the deceased came drunk
and misbehaved with the women there. He further
deposed that the villager assaulted him with whatever they
got, and the deceased ran away.
53. During cross-examination he clarified that he is
not aware of any extrajudicial trial conducted in the village
against the deceased in connection with creating a
nuisance in the house of Nalia. He further clarified that he
only heard that the deceased used to torture after drinking
alcohol in the absence of the male members of the
families, but he did not see it.
54. DW-2 similarly deposed that on the wedding
night at Nalia's house, the deceased misbehaved with the
women present there, and the people present there
assaulted him. He further deposed that the women of the
village used to run away upon seeing the deceased, as his
behavior was not good.
55. During cross-examination he further clarified that
a meeting was held in the village regarding the deceased
misbehaving with other women.
56. DW-3 deposed that the distance between
Karigaon and Loraputa by road is about 8 to 10 miles, and
it is about 7 to 8 kilometers across the field. He further
deposed that people come to Karigaon from Loraputa on
foot during the dry season and by boat during the
monsoon. He further deposed that on the date of the
incident, it was Holi. He further deposed that he saw
around 100 people gathering in the agricultural field, and
the police caught a boy from the village Loraputa, and the
boy himself came and got into the vehicle. He further
deposed that the village headman sent Pintu Changmai
and his brother-in-law to the hospital with the boy and that
he heard that later on the boy died.
57. What transpires from the above is that PW-1 had
deposed that the deceased had made a dying declaration
to him before his death in the hospital to the effect that
the appellants/accused persons had assaulted him with a
rod and stick. There is no bar to convicting an accused on
the basis of a solitary dying declaration without seeking
corroboration; however, before acting on such a sole dying
declaration, the court must be fully convinced of its
truthfulness and voluntariness. In other words, such a
dying declaration can be the sole basis of conviction if it
inspires the court's full confidence.
58. Turning back to the testimony of PW-1, it appears
that though PW-1 deposed during his testimony in the
court that the deceased told him that all the
appellants/accused persons had assaulted him, however,
while lodging the F.I.R., he had only mentioned the names
of appellant/accused Nos. 1, 3 & 5 in Criminal Appeal No.
179/2011. It further appears that PW-1 has not mentioned
in the F.I.R., as regards the said dying declaration allegedly
to have been made by the deceased to PW-1 at the
hospital bed. It further appears that PW-1 also did not tell
the police, while his statement was recorded under Section
161 of the Cr.P.C., that the deceased had told him the
names of the accused persons who had assaulted him. It
further appears that the Investigating Officer/PW-23,
corroborates the said fact that PW-1 did not disclose the
alleged dying declaration. In fact, it appears from the
cross-examination of the Investigating Officer/PW-23 that
PW-1 while making his statement before him under Section
161 of the Cr.P.C., said that the appellants/accused
persons No. 1, 3 & 5 in Criminal Appeal No.179/2011 along
with some other persons, apprehended the deceased and
took him to Karigaon and that the deceased was admitted
to the hospital for treatment. Thus, a doubt arises in the
mind of this court as regards the truthfulness of the
testimony of PW-1 in relation to the alleged dying
declaration. It appears that PW-1, during his cross-
examination, clarified that PW-20 was with him when he
had gone to the hospital and talked to the deceased. It
appears that PW-20 in his evidence-in-chief deposed that
when he went to the hospital, the deceased told him that
the appellants/accused persons No. 1 & 2 had beaten him
up and that he only heard this much. During cross-
examination it appears that he clarified that after the
deceased told him the names of the two accused persons,
he went to bring clothes. It appears that he further
clarified that the deceased told PW-1 in the presence of the
nurse; however, the said nurse was never examined. It
further appears that PW-20 admitted that he never made
any statement before the police. It further appears that the
PW-1 had disclosed the fact that PW-20 was with him
when he went to the hospital and talked to the deceased
for the first time during his cross-examination. It further
appears that PW-12, who is another brother of PW-1 and
the deceased, deposed that upon visiting the hospital with
PW-1, they found the deceased in an injured state, and
when he questioned the deceased, he came to know that
the appellants/accused person Nos.1, 2, 3, and 4 in
Criminal Appeal No.179/2011 had assaulted him. It further
appears that during cross-examination he clarified that he
did not tell the police, while his statement was recorded
under Section 161 of the Cr.P.C., that the deceased had
told PW-1 the names of the persons who assaulted him
and that he heard the same. It further appears that the
Investigating Officer/PW-23 during his cross-examination,
clarified that PW-12, while making his statement under
Section 161 of the Cr.P.C., did not disclose the factum of
the dying declaration being made by the deceased either to
him or to PW-1. In view of what has been discussed above
and especially the fact that PW-1 neither mentioned all the
names of the accused persons nor disclosed the alleged
dying declaration prior to his deposition in the court, the
existence of such a dying declaration is highly doubtful.
59. Apparent thus, that the factum of the dying
declaration being made by the deceased to PW-1 or to PW-
12 and PW-20 appears to be an afterthought and therefore
does not inspire the confidence of this court.
60. Upon viewing the remaining prosecution
witnesses, it appears that there is no evidence whatsoever
to indicate or remotely suggest that the appellants/accused
persons are the perpetrators of the offences alleged. In
fact, what appears from the testimony of the prosecution
witnesses is that on the night before the date of
occurrence, there was a pre-marriage ritual ceremony
being held at the house of one of the co-villagers, where
the deceased had gone and created a nuisance. In fact, it
appears that the deceased may have been kept the whole
night tied in the said house by the people who had
attended the ceremony. It further appears from the
testimonies of PW-5 & PW-6 that the deceased was also
assaulted at the house of the co-villager where the pre-
marriage ritual ceremony was conducted. It further
appears from the testimony of PW-4 that there was a
quarrel with the deceased at the pre-marriage ritual
ceremony. It further appears that none of the prosecution
witnesses, especially the ones who claimed to have been
present at the pre-marriage ritual ceremony and had
witnessed the deceased being assaulted by the people
present out there, deposed that the appellants/accused
persons were present at that time in the house of the said
co-villager where the pre-marriage ritual ceremony was
going on. Similarly, none of the prosecution witnesses
present out there has seen any of the appellants/accused
persons having quarreled with the deceased, and in fact it
was some other people with whom the deceased was
having a quarrel. In fact, what is evident from the
testimony of the prosecution witnesses is that one of the
appellants/accused persons is a friend of the deceased.
Therefore, what is clearly established is that following the
night of the pre-ritual ceremony, in the morning the
deceased was seen going with the appellants/accused
persons from the house of the co-villager where the pre-
marriage ritual ceremony took place. However, none of the
prosecution witnesses, who were present at the pre-
marriage ritual ceremony, deposed that they had seen any
of the appellants/accused persons assaulting the deceased.
There is also no evidence that the appellants/accused
persons had any quarrel or had forcefully taken away the
deceased.
61. In order to bring home the offence of Section 148
of the IPC, it is a condition precedent to establish that
there was a nexus between the common object and the
offence committed before holding every member of the
assembly liable for the same. In other words, firstly,
unlawful assembly must be established, and secondly, the
common object of such unlawful assembly, i.e., to cause
death in the facts of the instant case, must be established.
In the present case, the prosecution has not been able to
establish that there is an unlawful assembly and that the
appellants/accused persons are the members of such
unlawful assembly. Undoubtedly, there has been a death;
however, there is no evidence whatsoever to indicate that
the appellants/accused persons have done any act to cause
death of the deceased; hence, the charge of murder is
insufficient and unacceptable. Thus, the prosecution having
failed to establish that the appellants/accused persons are
members of an unlawful assembly to cause the death in
question and that any of the appellants/accused persons
had done any act to cause such death, the
appellants/accused persons cannot be held guilty for the
alleged murder of the deceased.
62. Turning now to the impugned judgment & order
of the trial Court, it appears that the trial Court has
rendered the impugned judgment & order of conviction
merely relying upon the prosecution witness No.9 as the
eyewitness to the event. Relevant paragraph of the
judgment of the trial Court reads as hereunder: -
"47. Considering the prosecution evidence as
discussed above, it is found that on the date
of occurrence morning at about 9:30/10:00
a.m., Nathu Borgohain was caught by the
accused persons and he was taken towards
Kari Gaon on foot by pushing him. P.W.9
Smti. Sunmoni Barua, the direct eye witness
to the occurrence stated that Nathu
Borgohain was caused hurt by Bamboo Lathi
and she was able to identify only accused
Sasow @ Ananta Changmai. The
doctor(P.W.14) who conducted post-mortem
on the dead body of Nathu Borgohain found
lacerated wound on the middle of the vault
of the scalp and other injuries. There was
fracture of skull bone. In the opinion of the
doctor, the cause of death was due to head
injury caused by Mat. Ext.3 Lathi.
48. I have gone through the citations referred
above by learned defence counsel on
common object U/S.149 of I.P.C. and the law
is well settled.
49. In Dharindhar Vs. State of U.P. reported
in (2010) 7 SCC 759, it was held by Hon'ble
Appex Court in Para 44 that-
'In Pandurang Chandrakant Mhatre V.
State of Maharashtra, (2009, 10 SCC 773)
this court enumerated the principle that
under Section 149, two ingredients are
required to be satisfied. Firstly, there has to
be commission of an offence by any member
of an unlawful assembly. Secondly, such
offence must have been committed in
prosecution of the common object of that
assembly or must be such that the members
of that assembly knew it to be likely that the
offence would be committed.'
50. As discussed above, it is found that
prosecution has been able to prove that all
the accused persons being the members of
unlawful assembly committed the offence
and the offence committed by them was in
prosecution of the common object of that
assembly. It is found that Nathu Borgohain
was assaulted and caused hurt by the
accused persons and he was caused head
injury by Mat. Ext.3 Lathi(deadly weapon)
with fracture of skull bone. The accused
persons took Nathu Borgohain on foot
towards Kari Gaon by pushing him as
witnessed by the prosecution witnesses on
the date of occurrence morning on
07.03.2004. On the information given by
P.W.13 Sri Bipul Kumar Saikia (Gaonburah),
police came and rescued injured Nathu
Borgohain from Kari Gaon who was tied
with a Bamboo Plant in front of Konwerpur
Kari Gaon Harimandir. The injured Nathu
Borgohain was taken to Sivasagar Civil
Hospital by police for treatment, but on the
next day morning, i.e., on 08.03.2004 he
died in the hospital.
51. Coming to the motive of the crime, it is
not always necessary for the prosecution to
establish a definite motive for commission of
the crime by the accused. It is always
related to the facts and circumstances of a
given case. In the instant case, defence has
brought it to the light that Nathu Borgohain
had bad character and he created
disturbance to the ladies in the marriage
ceremony of the house of Nalia and for that
reason he was assaulted by public there and
caused him injuries. It is found from the
prosecution evidence on record and
discussions made above that accused
persons forming unlawful assembly in
prosecution of common object of that
assembly caused hurt on the person of
Nathu Borgohain on the date of occurrence
morning and even he was caused hurt by
Bamboo Lathi, which was affirmed by
P.W.14 Dr. Akhil Hazarika after going
through the head injury of the deceased in
the post-mortem examination. It is evident
that, it was the motive of the accused
persons to cause him hurt.
52. In view of the discussions made above, it
is found that prosecution has been able to
prove the charge U/S.148 of I.P.C. against
all the accused persons beyond all
reasonable doubt and as such, they are
convicted U/S.148 of I.P.C. In my considered
opinion, prosecution has failed to prove the
charge U/S.342 of I.P.C. against the accused
persons beyond all reasonable doubt and as
such, the accused persons are acquitted from
the charge U/S.342 of I.P.C. and they are set
at liberty under that section of law.
53. In respect of charge U/S.302/149 of
I.P.C., it is found that, in consideration of the
totality of the evidence on record and
keeping in view the medical evidence in
respect of head injury of deceased Nathu
Borgohain, and in the facts and
circumstances of the present case, I am of
the opinion that the accused persons had the
knowledge that the head injury causing
fracture of skull bone by inflicting Bamboo
Lathi blow was likely to cause the death of
Nathu Borgohain, even though there was no
intention of the accused persons to cause
death of Nathu Borgohain. Prosecution has
failed to establish that the accused persons
had their intention to cause death of Nathu
Borgohain. The offence would therefore,
squarely fall U/S.304 Part II of I.P.C. read
with section 149 of I.P.C. and not
U/S.302/149 of I.P.C. Accordingly, all the
accused persons are found guilty U/S.304
Part II of I.P.C. read with Section 149 of
I.P.C. and as such, they are convicted
U/S.304 Part II of I.P.C. read with Section
149 of I.P.C."
63. Reading the aforesaid judgment, it appears that
the trial Court erroneously has assumed PW-9 as the direct
eyewitness to the occurrence despite that PW-9 had only
deposed to the effect that the appellant/accused No.1 in
Criminal Appeal No.179/2011 is one amongst the people
who were taking one boy away and that during cross-
examination she clarified that though she saw some boys
taking the deceased away from the front of her door, she
did not see them assaulting the deceased. Hence, it is
clearly established that PW-9 is not an eyewitness to the
alleged assault and murder. Thus, there being no evidence
whatsoever indicating the involvement of the
appellants/accused persons in the alleged assault and
murder of the deceased, merely because the deceased was
seen being taken away by the appellants/accused persons
is not sufficient enough to sustain the impugned conviction
and sentence. In fact, it is the cardinal principle of criminal
jurisprudence that the prosecution must establish the guilt
of the accused beyond all reasonable doubt, and in case of
doubt, the benefit of the same must go in favour of the
accused. In the present case, it is clearly discernible from
the prosecution evidence that the possibility of the
appellants/accused persons, one of whom is the friend of
the deceased, after the deceased misbehaved in the pre-
marriage ritual ceremony and upon being assaulted by the
people gathered therein and having been kept tied, was
taken away by them from there cannot be ruled out.
Moreover, the defence by adducing defence witnesses and
during cross-examination of the prosecution witnesses has
also probabilized the aforesaid possibility. There cannot be
any quarrel that when there are two views, the view
favourable to the accused is taken. Hence, doubt having
been arisen, the benefit of such doubt must go to the
appellants/accused persons.
64. That being so, I am of the unhesitant view that
the prosecution has failed to prove the charge beyond
reasonable doubt. Therefore, the impugned conviction and
sentence of the trial Court is totally perverse and palpably
erroneous, and hence is liable to be interfered with.
Accordingly, the judgment & order dated 23.08.2011,
passed in Sessions Case No.115(S-S)/2006, by the learned
Sessions Judge, Sivasagar, is hereby set aside and
quashed.
65. As such, the appellants/accused persons are
acquitted of the charges. The bail bonds furnished by the
appellants/accused persons accordingly stand cancelled,
and sureties discharged.
66. Resultantly, both the criminal appeals stands
allowed and disposed of.
67. Return the Trial Court Record (TCR).
JUDGE
Comparing Assistant
