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Judgment
M.R. Pathak, J
1) Heard Mr. T. R. Deuri, learned counsel for the accused appellants and Ms. S. Jahan, learned Additional Public Prosecutor, Assam for the Opposite
Party No. 1.
2) This appeal has been preferred by the accused appellants (i) Shri Balai Kshetriya, (ii) Shri Khusi Mohan Kshetriya, (iii) Shri Bidu Kshetriya and (iv)
Shri Sudev Kshetriya being aggrieved with the impugned judgment dated 26.02.2015 passed by learned Additional Sessions Judge (Fast Track Court),
Barpeta in Sessions Case No. 179/2011, arising out of Barpeta Police Station Case No. 27/2007 corresponding to G.R.Case No. 56/2007, whereby
they have been convicted under Sections 323/324/302/34 of the Indian Penal Code, sentenced with Rigorous Imprisonment for Life with fine of Rs.
5,000/- each, in default to undergo Rigorous Imprisonment for another one year under Section 302/34 IPC, sentenced to pay fine of Rs. 500/- each in
default to undergo Rigorous Imprisonment for one month under Section 323/34 IPC and further sentenced to undergo Rigorous Imprisonment for six
months each under Section 324/34 IPC for causing death of Subal Khatriya, where the sentences to run concurrently.
3) The case was set into motion on receipt of an written ejahar dated 09.01.2007 (Exhibit-1) lodged by Sri Bangkar Khatriya (PW.1) before the In-
Charge of Howly Out Post, stating that around 09:00 am on the previous day, i.e., 08.01.2007 the accused persons, namely, (i) Shri Bolai Khatriya, son
of late Jaladhar Khatriya, (ii) Shri Khusi Mohan Khatriya, son of Shri Bolai Khatriya, (iii) Shri Sukhdev Khatriya, son of late Jaladhar Khatriya and (iv)
Shri Bidu Khatriya, son of Shri Bolai Khatriya, all are resident of Village - Satbhanirtup, Police Station and District - Barpeta in a body trespassed in to
their house and asked its inmates to vacate it. When his father, Subal Khatriya asked the accused persons as to why they should vacate their own
house, the accused persons with iron crow bar assaulted his father in his head and caused grievous injury. Then he and his elder brother Sankar
Khatriya (PW.2) requested the accused persons to leave their premises, whereupon the accused persons assaulted him and his elder brother injuring
them severely. Hearing their hue and cry when the villagers came forward, the accused persons left their house. With the assistance of the villagers,
while his father was taken to the Gauhati Medical College Hospital in a critical condition, he expired on the midway at Nalbari. By the said ejaharar
the informant requested the authority concerned to take appropriate action.
4) The said ejahar was written by one Sahab Uddin Ahmed (PW.8) as told by the informant and it was read over to him and the informant duly
verified it. On receipt of said written ejahar the same was entered as Howly Out Post G.D. Entry No. 219 dated 09.01.2007 and forwarded the same
to the Barpeta Police Station, wherein it was received on 10.01.2007 and registered as Barpeta Police Station Case No. 27/2007 under Section
448/325/302/34 IPC (Exhibit-1), corresponding to G.R. No. 56/2007 (PRC No. 343/2010).
5) On being identified by the informant (PW.1), inquest on the dead body of Subal Khatriya was conducted on 09.01.2007 by the then In-Charge of
Howly Out Post (PW.10) in its compound itself and prepared the Inquest Report (Exhibit-2) in presence of witnesses (PWs. 3, 7 and 9) and by
preparing necessary challan, forwarded the said dead body to the Barpeta Civil Hospital, Barpeta for its post mortem examination, visited the place of
occurrence and drawn its sketch map (Exhibit-3), recorded the statements of the witnesses acquainted with the facts of the case and after collecting
the post mortem examination report of the deceased (Exhibit-5) from Barpeta Civil Hospital and the Injury Reports Subal Khatriya (deceased),
Shankar Khatriya (PW.2) and Bankar Khatriya, Informant (PW.1) and on completion of said investigation, finding prima facie materials regarding
their involvement in the case, the concerned Investigating Officer vide No. 65 dated 27.02.2007 submitted the Charge-Sheet in said Barpeta P.S. Case
No. 27/2007 under Sections 448/323/324/302/34 IPC (Exhibit-4) against the accused four accused persons, the appellants herein. It is to be noted
herein that the accused persons evaded arrest during investigation of the case and absconded. Their pre arrest bail was rejected and the accused
persons subsequently, on 13.02.2007 surrendered before the Chief Judicial Magistrate, Barpeta and were detained in Judicial Custody. Later they
were granted bail on 16.05.2007.
6) As Section 302 IPC being exclusively triable by the Court of Sessions, the learned Additional Chief Judicial Magistrate, Barpeta by order dated
09.01.2011 committed the said G.R. No. 56/2007 (PRC No. 343/2010) to the Court of learned Sessions Judge, Barpeta which was accordingly
registered as Sessions Case No. 179/2011. Learned Sessions Judge, Barpeta by order dated 06.09.2011 transferred the said Sessions Case to the
Court of learned Additional Sessions Judge, Fast Track Court, Barpeta for its disposal. Learned Additional Sessions Judge, FTC, Barpeta on
23.09.2011 framed charge under sections 448/323/324/302/34 IPC against the accused appellants, which were read over and explained to them, to
which they pleaded not guilty and claimed to be tried. Accordingly, the trial of the case commenced.
7) To prove the guilt of the accused, the prosecution adduced evidence of eleven witnesses including the autopsy doctor, who conducted the post
mortem examination of the deceased and the Investigating Officer of the case and exhibited the relevant documents noted above. After completion of
recording of evidence of the prosecution witnesses, the learned Trial Judge on 26.04.2013 recorded the statements of the accused persons under
Section 313 Cr.P.C. wherein they denied all the accusation made against them by the prosecution witnesses. The defence adduced evidence by
examining the accused appellant No. 2 and another. The defence cross-examined the prosecution witnesses and the defence witnesses were cross-
examined by the prosecution. A Court Witness, i.e. the doctor of Barpeta Road Public Health Centre who examined the injured victims after the
incident and gave their Injury Report (Exhibit-6) was also examined.
8) Having found the accused persons guilty of the offences, under Sections 323/324/302/34 IPC, the learned Trial Court by the impugned Judgment
dated 26.02.2015 convicted them accordingly and passed sentence against them as noted above. Aggrieved by their conviction and the sentences that
has been passed against them, the accused persons have preferred this appeal.
9) Mr. Deuri, learned counsel for the accused appellants submitted that the prosecution failed to prove the guilt of the accused appellants beyond all
reasonable doubt and that the appellants have been convicted on mere suspicion and that the informant has falsely implicated the accused persons in
the case. Mr. Deuri also submitted that there was no explanation regarding the delay in lodging the FIR of the case by the informant, the prosecution
failed to disclose and identify the correct place of occurrence of the incident, alleged blood stained clothing of the injured and the deceased were not
seized, PW.1 and PW.2 being the sons of the deceased are interested witnesses and there are contradictions of the evidence of the prosecution
witnesses. Mr. Deuri further submitted that the prosecution could not lead any cogent, reliable and satisfactory evidence so as to hold the accused
persons guilty of the offences and they cannot be punished on mere assumption. As such it is submitted that the impugned judgment of conviction and
sentence should be set aside and quashed and the appellants should be acquitted from the charge in the case. Ms. Jahan, learned Additional Public
Prosecutor for the State on the other hand submitted that the Trial Court on proper appreciation of evidence passed the impugned judgement of
conviction and sentence, which does not call for any interference.
10) To ascertain the correctness of the impugned judgment let us briefly go through the evidence on record.
11) PW.1, Bankar Khatriya, younger son of the deceased, deposed before the Trial Court that the incident occurred around 09:00 am on 08.01.2007.
On that day while he was at home the accused persons came to their house, assaulted his father by an iron crowbar on his head and when he tried to
prevent his father from being assaulted, he too was beaten up by the accused persons. His elder brother Sankar (PW.2) was also beaten up by the
accused persons and said Sankar and his father sustained injuries on their head and even his father was beaten up by stick. Said PW.1 also deposed
that accused Sukev assaulted him with dao and his elder brother was assaulted by the accused Khusi Mohan with dao and accused Bolai assaulted
with the crow bar. He further deposed that all the accused persons assaulted them with lathi, dao and crow bar and subsequently he lodged the ejahar
with the police station pertaining to the said incident, Exhibit-1 and identified his signature on it. He deposed that police recorded his statement,
forwarded him his brother and father to the Barpeta Road Civil Hospital for their treatment and his father was taken to Nalbari for his treatment and
he died there.
During his cross-examination by the defence, PW.1 stated that accused Bolai is his paternal uncle and that blood that came out from the injuries
sustained by his father and elder brother stained their apparels. He also stated that the houses of Nripen Das, accused persons, Barun Khatriya are
adjacent to his house and that Nripen Das and Barun Khatriya (PW.6) were not present at the place of occurrence when the incident took place and
it is he who told them about it. He denied the suggestion that by an unregistered sale deed his father sold 13 Lechas of land to Bolai, Bidu, Sridam and
Rakhal and that they took its possession and later his father claimed the said land for which there were three bichars in their village, the decision of
which was not accepted by his father and his elder brother Sankar trespassed over the said land and constructed to house over it, due to which there
is a dispute between them and the accused persons. He also denied the suggestion that the accused persons did not assault him, his father and elder
brother Sankar trespassing into their land and that because of the said land dispute a false case was lodged against them.
12) PW.2, Sankar Khatriya, elder son of the deceased deposed before the Trial Court that the accused persons are his uncle and brothers and that
PW.1 is his brother. The incident occurred on 08.01.2007 during the day time around nine o’ clock, while he was at home. On the previous day of
the incident he was not at home and neither his father was there nor were any other members of their family available in the house. Taking advantage
of that the accused persons pulled down their dwelling house and when he turned around 10/11 at night he saw the accused persons demolishing the
house and though he informed his father, he came only on the morning of the next day and told him that he will file a case. At that time while they
were sitting in the varanda of the house, uncle Bolai Khatriya the other three accused came to their house and started assaulting him his father and
brother. At first he was assaulted by a bamboo stick, his brother PW.1 was assaulted by dao in his father was assaulted on his head by an iron road
and that his father was taken to the hospital on the same day. PW.2 also deposed that his father sustained injuries on his head and leg, he sustained
injury on his head and his brother Bankar was injured on his hand and all of them were treated at Barpeta Road Hospital. PW.2 further deposed that
for better treatment of his father, while he was taken to Guwahati, he died at Nalbari, his brother Bankar lodged the ejahar and police recorded his
statement.
During his cross-examination by the defence, PW.1 stated that regarding the demolition of their house on the previous day of the incident an ejahar
was filed by them and police investigated the matter. He denied that by an unregistered sale deed his father sold thirteen Lechas of land to the
accused Bidu, Bolai and couple of others and he re-claimed that land the accused persons and other purchasers after taking possession of the said
land, he constructed a house over it and that even on the date of the incident he was preparing to construct another bamboo house over the said land
and while constructing the said house, when the accused persons objected to it than he, his is brother and father when fled away from the place of
occurrence, they fell down what a bamboo strips due to which, he, his brother and father sustained injuries. He also denied the suggestion that the
accused persons did not trespass to their land and did not assaulted and that the accused persons did not made any unauthorised entry into their house.
13) PW.3, Phanindra Das, hearsay witness to the incident and a signatory to the Inquest Report of the dead body of Subal Khatriya Exihibit-2 and
proved his signature on it. During his cross-examination said PW.3 stated that a land dispute existed between Subal Khatriya, his sons Banker and
Sankar in one hand and the accused persons on the other and late Subal by an unregistered sale deed sold thirteen Lechas of land the accused persons
and later said land was reclaimed by Subal from the accused persons for which three village Mel and he was present in those meetings. PW.3 further
stated that said thirteen Lechas of land was in possession of the accused persons, but Sankar, son of Subal, encroached the said land and forcefully
constructed a house over it. He stated that Exhibit-2 is a carbon copy and his signature is also there in that carbon copy.
14) PW.4, Smti. Maya Khatriya, another hearsay witness to the incident, deposed before the Trial Court that on the date of the incident she was at
her house and heard above the death of Subal Khatriya from the villagers, but she does not know as to how he died and that she did not even go to
see him. During her cross-examination said PW.4 stated that she was aware that Subal sold a parcel of land to the accused persons and even after
such sale, selling the said land Subal took over its possession and the PW.2 Sankar while tried to raise a house over it, quarrel took place between the
accused persons and the complainant side.
15) PW.5, Smti. Rongmala Khatriya, a hearsay witness to the incident, deposed before the Trial Court that on the date of the incident she was at her
house and that she did not know as to how Subal died and that she did not go to see him. During her cross-examination said PW.5 stated that a she
was aware that there was a land dispute between the accused persons and the complainant.
16) PW.6, Barun Khatriya, deposed before the Trial Court that he did not know as to how Subal died. He deposed that the incident occurred around
09:00 in the morning and at that time he was in a shop in the Highway at Satbhanir Tup. Hearing a commotion from the land of the accused persons,
he proceeded towards that place and saw Subal lying on the land of the accused persons in injured condition. He deposed that then Subal was taken to
the hospital in a push cart and that Sankar, Bankar and others were present in the place of occurrence and they took Subal to the Barpeta Road
Hospital and when Subal was taken to Nalbari, he died on the way. PW.6 also deposed that Subal sustained cut injury on the right side of his neck and
that he does not know as to who assaulted Subal and he did not ask anyone about it.
During his cross-examination by the defence, PW.6 stated that police recorded his statement on the date of the incident itself and that he did not state
before police that he saw Subal lying on the land of the accused persons.
17) PW.7, Arun Khatriya, deposed before the Trial Court that Subal died in the first half on the date of the incident and he did not remember from
whom he heard about the said incident. He deposed that he had a tea stall and while he was that stall he heard that Subal and the accused persons
had a quarrel over land and he doesn’t know as to who assaulted whom and that he was present at the time of conducting the inquest on the dead
body of Subal. He proved the Inquest Report, Exihibit-2 and his signature on it. PW.7 deposed that he does not know as to who assaulted Subal and as
to how he was assaulted and after the incident he closed his stall and came to enquire about Subal. Then Subal was taken to the Barpeta Civil
Hospital and Subal died while he was taken to Nalbari.
During his cross-examination by the defence, PW.7 stated that police recorded his statement on the date of the incident itself and that he did not state
before police that that Subal and the accused persons had a quarrel over land. He stated that Exhibit-2 is a carbon copy and his signature is also there
in that carbon copy, but it is not his original signature.
18) PW.8, Sahabuddin Ahmed, deposed before the Trial Court that on 09.01.2007, while he was sitting in a tea stall near Howly Out Post, the
informant Bankar Khatriya requested him to right an ejahar and he accordingly wrote the same as per the version of the said informant, read over the
same to him and then he gave his signature over it. PW.8 admitted that said ejahar Exihibit-1 was written by him and as its scriptwriter, he proved his
signature on it.
During his cross-examination by the defence, PW.8 stated that he did not know as to how the incident occurred and that he had written the ejahar as
on the version of the informant.
19) PW.9, Mahadev Nath, deposed before the Trial Court that the incident was of January 2008 and after getting the information over phone, he went
to Barpeta Road Hospital and found Subal Khatriya undergoing treatment in injured condition and discussed with the doctors therein regarding the
treatment of the injured. Said PW.9 deposed that he came to know that on the next day when Subal Khatriya was taken to Guwahati he died on the
way. PW.9 also deposed that when he enquired as to how Subal Khatriya sustained injuries, he came to know that during a quarrel between the
brothers, he sustained injury and that when the dead body of Subal Khatriya was brought back, inquest was done over it, in his presence. PW. 9
proved the said Inquest Report, Exhibit-2 and his signature on it.
During his cross-examination by the defence, PW.9 stated that police did not record his statement and that he heard from people that Subal Khatriya
sustained injuries in a quarrel amongst the brothers and he did not remember from whom he heard about it.
20) PW.10, Subal Chandra Talukdar, Investigating Officer of the case, deposed before the Trial Court that Bankar Khatriya lodged the ejahar of the
case on 09.01.2007 stating about the incident that took place on 08.01.2007 around 09:00 am and he forwarded the same to the Barpeta Police Station
for registration of the case. As was given its charge he investigated the case and submitted the Charge Sheet in the case (Exihibit-4) against the
accused persons under sections 323/324/302/34 IPC and proved his signature on it.
During his cross-examination by the defence, PW.10 stated that as shown in the Sketch Map of he did not record the statements of Nripen Khatriya
and Sukur Ali, who resided near the place of occurrence (Exihibi-3) and that in that Sketch Map he had shown the place of occurrence as ‘P’.
But in said sketch map he did not give the details of that place. He admitted that Exhibit-2, Inquest Report of the deceased was a carbon copy and
before conducting the inquest on the said dead body he did not give any requisition before the Magistrate.
PW.10 in his cross-examination also stated that PW.1, Bankar Khatriya, did not state before him that the accused persons assaulted his father with an
iron crow bar and that he did not see any blood stained cloth of Sankar (PW.2) nor he seized any blood stained cloth of the deceased.
Said PW.10 in his cross-examination further stated that PW.2, Sankar Khatriya during his statement before him did not state that the accused persons
assaulted his brother Bankar (PW.1) by dao and he did not show him any blood stained genji (vest).
21) PW.11, Dr. Kandarpa Choudhury, the autopsy doctor at the relevant time at Barpeta Civil Hospital, deposed before the Trial Court that on
09.01.2007 post mortem examination on the dead body of Subal Khatriya was conducted by him with reference to the Howly Out Post G.D. Entry
No. 219 dated 09.01.2007 and on such examination, he found the following:
External Appearance:- A male dead body of average built, dark brown complexion, wearing a white sweater and white dhoti, with a rubber catheter
present in the urethra. Eyes and mouth closed, rigor mortis present all over the body, anus healthy.
Injuries:-
i) Contusion of size 5 x 5 cm present in left front parital region of scalp 7 cm above to left eyebrow 5 cm above to left mastoid bone.
ii) A depressed fracture of size 5 x 2 cm present in junction of frontal and left parital bone 5 cm above to left mastoid.
Cranium and Spinal Cord:- Scalp and Skull - injury as described. Vertebrae healthy. Membrane congested, massive subdural hemorrhage present.
Brain congested. All the Thoraxic organs are healthy. All the abdominal organs are healthy.
PW.11 proved the Post Mortem Examination Report of the deceased Subal Khatriya, Exhibit-5 and his signature on it and from the said report he
opined that the death of the deceased was due to shock and haemorrhage resulting from the head injury and that all the injuries were ante-mortem in
nature caused by blunt object.
In his cross-examination by the defence, PW.11 stated that the Post Mortem Report, Exhibit-5 is a carbon copy along with his signature.
22) DW.1, Khusi Mohan Khatriya, one of the accused, deposed before the Trial Court that house of Subal Khatriya was at Balabhita, which is about
one Km away from their village and that he heard that said Subal Khatriya died due to public beating. He also deposed that at time of the incident he
along with his father Bolai Khatriya and brother Sukdev Khatriya went to work in the paddy field of Khalilur Rahman and his other brother Bidu
Khatriya, because of his poor eyesight cannot work and stays at home. He further deposed that on the said date they went to work in the house
Khalilur Rahman and around 06:00 in the evening while returning home from work, they could come to know about the incident. DW.1 deposed that
late Subal after selling thirteen Lechas of land to them, he encroached the same and constructed a house over it, for which there were three village
meetings with the help of Gaon Burha (Village Headman). But Subal did not abide by the decisions arrived at those meetings for which the villagers
did not like Subal and others.
During his cross examination by the prosecution, DW.1 stated that the disputed land was purchased by them and at the time of the incident Subal and
others raised a new house over it and Sankar was staying there. It was stated by DW.1 that he heard that on the date of the incident Subal had a fight
with the public and that they did not submit any document regarding purchase of the said land and is also not aware about the case that was filed
against them.
23) DW.2, Khalilur Rahnan, deposed before the Trial Court that the accused persons had been working over his land for about ten years and he heard
that Subal was beaten up by public. He also deposed that on the date of the incident the accused persons, namely, Khusi Mohan, Bidu and Bolai were
working in the paddy field and that he had no knowledge about the incident excepting the same.
During his cross examination by the prosecution, DW.2 stated that distance between his house and that of the informant was about 10 to 12 meters
and that he did not know whose land was encroached by whom. He denied that the land belongs to the accused persons and they use to cultivate the
said land. He also stated that neither he visited the place of occurrence nor it was visited by the labourers (accused persons) who worked in his house.
He stated that neither he knows the owner of the land nor the person who was in its possession.
24) CW.1, Dr. Sanatan Das, the Medical Officer at the relevant time at Barpeta Road Public Health Centre, deposed before the Trial Court that on
08.01.2007 he examined (i) Subal Chandra Khatriya, (ii) Sankar Chandra Khatriya and (iii) Bankar Chandra Khatriya and found the following injuries
on them:
(a) Subal Chandra Khatriya
(i) One lacerated injury over left parietal region of the scalp. Size â€" 1†x ½†x ½â€.
(ii) One haematoma over the left side of the forehead. Size â€" 1†x 1â€.
(iii) One haematoma over the occipital region. Size â€" 1†x 1â€. Vomiting and loss of consciousness, no relation to light on pupils, suffering from
head injury and was referred to GMCH at 02:30 pm on 08.01.2007.
Nature of Injury:-
Grievous in nature, caused by blunt weapon and injuries were recent.
(b) Sankar Chandra Khatriya
(i) One lacerated injury over the scalp on right parietal region. Size â€" 1†x ½†x ½â€.
(ii) Pain and tenderness on the right shoulder joint with limitation of movement and he was advised X-Ray examination to exclude any fracture.
Opinion:-
Injury was simple in nature, caused by blunt weapon and was recent.
(b) Bankar Chandra Khatriya
(i) One cut injury on left middle finger. Size â€" ½†x ½†x ½â€. Opinion:-
Injury was simple in nature, caused by sharp cutting weapon and was recent.
Said CW.1 proved the Medical Report of those injured persons, Exhibit-6 and his signature on it.
During his cross examination by the defence, CW.1 stated that in the said Medical Report not mention reference case number of states and that those
injured were not escorted by any police constable or any home guard and that did not brought the Injury Register that is maintained in the hospital.
25) We have carefully perused the evidence adduced by the prosecution, the defence and the Court witness; the exhibits as well as the records of the
case. From the evidence on record it is proved that the incident occurred around 09:00 am on 08.01.2007 and except the PWs. 1 and 2, the
prosecution could not adduce evidence of any other witnesses present at the time of occurrence or acquainted with the occurrence. It is also in
evidence that the deceased Subal Khatriya was the own brother of the accused persons Bolai Khatriya and Bidu Khatriya and all the accused persons
are own uncles and brothers of the injured witnesses PWs. 1 and 2. Further, it is also in evidence that with regard to a parcel of land there was a
dispute between the accused persons in one side and the deceased Subal with his sons PWs. 1 and 2 on the other.
26) The appellants amongst others raised three issues that (i) there is delay in lodging the FIR of the case, (ii) PWs. 1 and 2 are interested witnesses
and that the prosecution by adducing the evidence of other independent witnesses failed to prove the guilt of the accused persons beyond reasonable
doubt and (iii) there was a land dispute between the informant side and the accused persons.
27) Regarding delay in lodging FIR in a criminal case, the Hon’ble Supreme Court in the case ofT ara Singh -Vs- State of Punjab, reported in
1991 Supp (1) SCC 536 have observed as follows:
It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are
we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have
witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-
stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances
for them to take some time to go to the police station for giving the report. Of course the Supreme Court as well as the High Courts have pointed out
that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger
of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and
separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised
carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later
substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances
of each case.
28) We have noticed from the records of the case that after the incident on 08.01.2007 the injured victims PWs. 1 and 2 and their father Subal
Khatriya were taken to Barpeta Road Public Health Centre for their treatment and they were examined by CW.1 who submitted the relevant Medical
Report Exihibit-6. Said CW.1 in the afternoon on 08.01.2007 itself referred and forwarded said Subal Khatriya to the Gauhati Medical College
Hospital for his better treatment and on his way; said Subal Khatriya expired at Nalbari. On the next day, i.e. on 09.01.2007, the informant (PW.1)
came to the Howly Police Out Post along with the dead body of said Subal Khatriya and lodged the ejahar, which was entered as Howly Out Post
G.D. Entry No. 219 dated 09.01.2007. The In-Charge of said Out Post conducted the inquest on the dead body of said deceased the premises of the
said Out Post in presence of witnesses and forwarded the said dead body to the Barpeta Civil Hospital for its post-mortem examination. The In-
Charge of said Out Post also forwarded the said ejahar submitted by the informant (PW.1) to the Barpeta Police Station wherein it was registered on
10.01.2007 as Barpeta P.S. Case No. 27/2007 (Exhibit-1). Considering the above and normal human conduct, therefore we are unable to say that
there was any inordinate and unexplained delay between the occurrence and lodging of the FIR in the case and hence, with regard to the case in hand,
the same cannot be a factor for discrediting the prosecution case.
29) It is well settled that because the witnesses are related to the deceased, their evidence cannot be discarded just on that ground. Law is fairly well
settled that conviction can be recorded if the evidence of the witnesses, who are related, is found cogent, credible and truthful and the mere fact that
the witnesses are related or were related to the deceased, cannot be a ground to discard their evidence.
30) When the eyewitnesses are stated to be related and/or interested and/or inimically disposed towards the accused, it has to be noted that it would
not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be
weighed pragmatically. The court would be required to analyse the evidence of related or interested witnesses and those witnesses who are inimically
disposed towards the accused. But if after meticulous and careful analysis, examination and scrutiny of their evidence, the version given by the
witnesses appears to be clear, cogent and credible, there is no reason to discard the same, conviction can be made on the basis of such evidence. In
law, testimony of an injured witness is given importance and the Hon’ble Apex Court in catena of decisions have held that related witnesses do
not normally spare the guilty and implicate innocent persons.
31) A three Judges Bench of the Hon’ble Supreme Court in the case of State of Rajasthan -Vs- Kalki, reported in (1981) 2 SCC 752 have held
â€
“7. As mentioned above the High Court has declined to rely on the evidence of PW 1 on two grounds: (1) she was a “highly interestedâ€
witness because she “is the wife of the deceasedâ€, and (2) there were discrepancies in her evidence. With respect, in our opinion, both the
grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with
the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is, she is the wife of the deceased; but she cannot
be called an “interested†witness. She is related to the deceased. “Related†is not equivalent to “interestedâ€. A witness may be called
“interested†only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person
punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be “interestedâ€. In
the instant case PW 1 had no interest in protecting the real culprit, and falsely implicating the respondents.â€
32) Relying the above decision, the Hon’ble Supreme Court in the case of State of U.P. -Vs- Kishanpal, reported in (2008) 16 SCC 73 have held
that â€" “……. that “related†is not equivalent to “interestedâ€. The witness may be called “interested†only when he or she has
derived some benefit from the result of a litigation, in the decree in a civil case, or in seeing an accused person punished. A witness, who is a natural
one and is the only possible eyewitness in the circumstances of a case cannot be said to be “interestedâ€.
33) In Krishan -Vs- State of Haryana, reported in (2006) 12 SCC 459, the Hon’ble Supreme Court have observed that â€" “If the prosecution
case is supported by two injured eyewitnesses and if their (injured eyewitnesses) testimony is consistent before the police and the court and
corroborated by the medical evidence, their testimony cannot be discarded.†In the case of Surender Singh -Vs- State of Haryana, reported in (2006)
9 SCC 247 the Hon’ble Apex Court have opined that â€" “The testimony of an injured witness has its own relevancy and efficacy. The fact
that the witness is injured at the time and in the same occurrence, lends support to the testimony that the witness was present during occurrence and
he saw the happening with his own eyes.†Again in the case of State of M.P. -Vs- Mansingh, reported in (2003) 10 SCC 414 the Hon’ble
Supreme Court have viewed that â€" “The evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their
statements are not to be discarded lightly.â€
34) In the case of Ganapathi -Vs- State of Tamil Nadu, reported in (2018) 5 SCC 549, the Hon’ble Supreme Court observed that â€
“15. Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness,
the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground
to discard the evidence which is otherwise cogent and credible. Relationship is not a factor to affect credibility of a witness. It is more often than not
that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is
made [Maranadu -Vs- State, (2008) 16 SCC 529].â€
35) The appellants also raised an issue regarding land dispute between the informant side and the accused persons. In the case of Annaporna Dutt -
Vs- State of U.P., reported in 1993 Supp (2) SCC 246, the Hon’ble Apex Court have held that â€
The existence of a dispute over landed property appears to be the cause for bad relations between the parties but simply because there is a dispute in
respect of a landed property, the prosecution story is not required to be discarded outright on the footing that the witnesses for the prosecution were all
partisan witnesses and had deposed falsely to implicate the accused persons.
36) From the evidence of the Court Witness, Dr. Sanatan Das, the concerned Medical Officer of Barpeta Road Public Health Centre, we have seen
that on 08.01.2007 he examined Subal Khatriya and found head injuries on his person, the said injured was found vomiting, he lost consciousness, he
had no relation to light on his pupils, his injuries were recent and grievous in nature, caused by blunt weapon and the said injured was referred to
Gauhati Medical College Hospital in the afternoon on 08.01.2007 itself.
37) From the evidence of said CW.1, we have also noticed that on 08.01.2007 itself, said doctor had also examined Bankar Khatriya (PW.1) and
Sankar Khatriya (PW.2) he found a recent cut injury on left middle finger of PW.1, caused by sharp cutting weapon that was simple in nature. CW.1
found that PW.2 had lacerated injury over his scalp on right parietal region, pain and tenderness on his right shoulder joint with limitation of movement
and that the injuries caused to PW.2 was by blunt weapon which were recent and simple in nature. The said Court Witness proved the Medical
Report of those three injured persons, Exhibit-6 as well as his signature on it.
38) We have also noticed that in his cross examination by the defence said doctor CW.1 stated that the injured persons were not escorted by police or
home guard. But from the evidence of the PWs. 1, 2, 6 and 7 it can be seen that on the date of the incident those injured were taken to Barpeta Road
Public Health Centre for their treatment and from there, the grievously injured Subal Khatriya was referred to GMCH in the afternoon at 02:300 on
08.01.2007 itself and on his way, the injured died at Nalbari. From the deposition of PW.6 it can be seen that injured Subal was taken to the hospital in
a push cart.
39) Similarly from the evidence of PW.11, the autopsy doctor it is seen that on 09.01.2007 he conducted the post mortem examination of the deceased
Subal Khatriya with reference to the Howly Out Post G.D. Entry No. 219 dated 09.01.2007 and as per his opinion the death of the said deceased was
due to shock and haemorrhage resulting from the head injuries â€" contusion in left fronto parital region of scalp and a depressed fracture in the
junction of frontal and left parital bone, described in the PM Report, Exhibit-5. As reflected in the PM report (Exhibit-5) the opinion as to the cause of
death of the deceased was due to coma resulting from head injury described in it, where all the injuries of the deceased were ante-mortem, caused by
blunt force impact and homicidal in nature. The said doctor, PW.11 proved the Post Mortem Examination Report of the deceased, Exhibit-5 and also
his signature on it.
40) From the above it is seen that the findings and opinions of both the doctors, the CW.1 as well as the PW.11, regarding the injuries sustained by the
deceased, cause of his death and also the injuries sustained by the two witnesses PWs. 1 and 2, were not in dispute at the trial. As such the
prosecution could prove that the death of the deceased Subal Khatriya to be homicidal in nature and PWs. 1 and 2 also sustained injury on their
person.
41) We have seen that the PW.10, Investigating Officer of the case did not corroborate the statement of PW.1, Bankar Khatrya, son of the deceased
that the accused persons assaulted his father with an iron crow bar. Said PW.11 also did not corroborate the statement of PW.2, Sankar Khatrya,
another son of the deceased that the accused persons assaulted his brother Bankar (PW.1) with dao.
42) From the evidence of DW.1, Khusi Mohan Khatriya it is seen that the said accused in his examination-in-chief stated that at the time of the
incident he along with his father Bolai and brother Sukdev went to work in the paddy field of Khalilur Rahman (DW.2). Later, in his examination-in-
chief itself, said DW.1 stated that on that day they went to work in the house of said Khalilur Rahman. The DW.2 in his examination-in-chief also
stated that the accused persons had been working in his paddy field for about last ten years prior to the incident and on the day during the time of
incident, accused Khusi Mohan, Bidu, Bolai worked in his paddy field. However, during his cross examination by the defence said DW.2 stated that
the distance between his house and that of the informant is about 10 to 12 meters and that on the date of the incident the accused persons were
working in his house. By adducing evidence of DWs, 1 and 2 the defence tried to establish that the accused persons were not present at the time of
incident in the place of occurrence. But from the above, the evidences of those two defence witnesses found to be unreliable.
43) On proper scrutiny of evidence of the parties and the records of the case, we found that that the accused persons came to the place of
occurrence at the time of incident and assaulted Subal Khatriya and PWs. 1 and 2, due to which, father of those two prosecution witness, Subal
Khatriya sustained grievous injuries on his head and died later on the same day because of said injuries and PW.1 sustained injury on his finger,
whereas PW.2 sustained injury on his head. These evidence of the prosecution could not be demolished by the defence and it remained intact.
44) From the records we have observed that there is no material to doubt the presence of the PWs. 1 and 2 at the scene of occurrence, who are the
sons of the deceased and not only the eye-witnesses to the incident but also injured witnesses in the same incident. We have perused their evidence
and they have withstood the cross-examination and there are no material contradictions or omissions which in any manner throw a doubt on their
veracity. We have already noted that the accused persons are close relatives of those two witnesses. The doctor (CW.1) of Barpeta Road PHC who
examined the injured persons immediately after the occurrence of the incident, i.e. PW.1, PW.2 and Subal Khatriya (deceased) described the nature
of the injuries sustained by them in the Injury Report (Exhibit-6) and that is fully in conformity with the oral evidence given by the witnesses PWs 1
and 2. Similarly the evidence of the autopsy doctor, PW.11 regarding cause of death of the deceased Subal Khatriya and the PM Report (Exhibit-5) is
also in conformity with the oral evidence given by those two witnesses. PWs. 1 and 2 are natural and injured witnesses. The defence failed to
establish the allegation that PWs. 1 and 2 are interested witness. Moreover, though there was a dispute in respect of a parcel of land, from the
materials on record it cannot be said that PWs. 1 and 2 are partisan witnesses and they deposed falsely to implicate the accused persons/appellants
and their evidence cannot be discarded.
45) As noted above, the accused persons surrendered on 13.02.2007 and sent to judicial custody, whereas Charge Sheet in the case was filed on
27.02.2007. But the prosecution did not take any steps to recover the weapon of assault involved in the case, even after surrendering of those accused
persons.
46) From the materials on record it is found that there is strong and consistent evidence to the effect that the accused persons/appellants had assaulted
the deceased Subal Khatriya and his sons, PWs. 1 and 2 who were with the former at the place of occurrence at the time of incident. Their acts were
described even in the ejahar and the eyewitnesses PWs. 1 and 2 deposed that the appellants assaulted them and their father thereby caused injuries to
the deceased Subal Khatriya and also to them. We have noticed that prosecution has failed to establish of using any dangerous weapons or means by
the accused appellants, while assaulting the deceased Subal Khatriya (the deceased) and PW.2, Sankar Khatriya on their head and PW.1 on his hand.
Evidence discloses that the deceased had two head injuries and the PW.2 had one head injury, both caused by blunt objects, where as the PW.1 was
injured on his hand by sharp object.
47) On perusal of the records, despite the death of Subal Khatriya, in our considered view, the accused persons of the case, i.e. the appellants herein
had no intention to cause murder of said Subal Khatriya and the PWs. 1 and 2. But as noticed from the above and the evidence is clear that the
appellants had assaulted Subal Khatriya and his sons during which said Subal Khatriay and his son Shankar Khatriya sustained injuries on their head
whereas the other son of Subal Khatriya, Sri Bankar Khatriya sustained injuries in his and. It is also in evidence that because of the injuries sustained
in his head due to assault made by the appellants, said Subal Khatriya died on his way to Guwahati for his better treatment.
48) Considering the entire aspect of the matter and for the reasons above, this appeal is partly allowed. We modify the impugned conviction and
sentences dated 26.02.2015 passed by the learned Additional Sessions Judge (Fast Track Court), Barpeta in Sessions Case No. 179/2011, arising out
of G.R. Case No. 56/2007 corresponding to Barpeta Police Station Case No. 27/2007 and convict the accused appellants (i) Shri Balai Khatriya, (ii)
Shri Khusi Mohan Khatriya, (iii) Shri Bidu Khatriya and (iv) Shri Sudev Khatriya for the offence under Sections 304 Part II of the IPC read with
Section 323 IPC and sentence them to undergo Rigorous Imprisonment for 7 (seven) years with fine of Rs. 5,000/- each, in default to undergo
Rigorous Imprisonment for another 6 (six) months under Sections 304 Part II and also sentence them to pay fine of Rs. 500/- each in default to
undergo Rigorous Imprisonment for one month under Section 323/34 IPC and both the sentences shall run concurrently.
49) Registry shall furnish a free copy of this Judgment to each of the accused appellants through the Superintendent of District Jail, Barpeta, Assam
for their necessary use.
50) Registry shall return the records of the Trial Court to the Court of learned Sessions Judge, Tinsukia with a copy of this Judgment.