Kurkuru Garh vs State of Assam

HK Sarma, J.

1.This Criminal Appeal has been preferred from jail by appellant, Sri Kurkuru Garh, against the judgment, dated 24.06.2016, passed by learned

Additional Sessions Judge No. 1, (FTC) in Sessions Case No. 171(T)/2012 convicting the appellant for offence under Section 302 of Indian Penal

Code and sentencing him to undergo rigorous imprisonment for life with payment of fine of Rs 30,000/-, in default, to suffer further rigorous

imprisonment for 6 (six) months.

[2] We have heard Mr. J Islam, learned Amicus Curiae appearing for the appellant. Also heard Mr. HRA Choudhury, learned senior counsel assisted

by learned counsel, Mr. A Ahmed, appearing for the appellant as well as Mr. BJ Dutta, learned Additional Public Prosecutor, appearing for the State

respondent No. 1.

[3] The deceased was suspected to have stolen a goat belonging to the accused-appellant, and therefore, the accused-appellant and some others were

in search of the deceased to nab him in connection with the commission of the theft of the goat. The villagers held a meeting in connection with the

theft of the goat on being convened by the appellant. In the meeting itself, the accused-appellant assaulted the deceased with a knife causing grievous

injuries resulting in his ultimate death. The offence took place on 11.05.2012, at about 7/8 am.

[4] On the basis of such facts, the PW1 lodged an FIR. The Baghjan Police Station registered a case, investigated into it, collected evidence, caused

inquest as well as post- mortem examination of the dead body done and, on completion of investigation, finally, laid charge-sheet against the accused-

appellant and another under Section 302 of the IPC. The other accused person has already been acquitted, vide the impugned judgment, and as such

he is not before this court in this appeal.

[5] The prosecution examined as many as 14 (fourteen) witnesses in this case, including the Investigating Police Officer and the Autopsy Doctor.

After closure of the prosecution evidence, the statement of the accused-appellant was recorded under Section 313 of the Cr.PC. In his such

statement, he denied the accusations made against him. The defence declined to adduce any evidence.

[6] We have scanned the evidence on record, including the impugned judgment of the learned trial court.

[7] Out of the witnesses examined by the prosecution, the PW1 is the informant, who lodged the FIR, vide Ext-1. He has narrated the facts leading to

the occurrence in his examination-in-chief. Although in his cross-examination, he has expressed total ignorance as to how the occurrence took place

as well as the alleged role played by the accused-appellant in inflicting injuries upon the deceased resulting in his death. He is very specific in his

cross-examination that he did not see as to who assaulted the deceased and also that he did not witness the incident. Therefore, such evidence of the

PW1 appears to be not implicating the accused-appellant.

[8] The PW2 is the Autopsy Doctor who deposed that, on 12.05.2012, he performed the post-mortem examination of the dead body of the deceased

and found the following:-

“External Appearance:-

One male dead body of about 40 years of age with average built dark complexion, short black hairs, eyes closed, mouth closed, blood clot present on

the forehead, bloody discharge from the nostrils and mouth, Riguor mortis present all over the body. PM hypostasis at the back of chest.

Injury No. 1:-

One cut injury over the right side of the forehead of sixe 2†X 1†and depth up to skull bone with fracture of right temporoparietal bone. Subdural

haematoma present underneath the fracture site.

Injury No. 2:-

Contusion over the right cheek with fracture of the right mandible.

Injury No. 3:-

Multiple incised looking laceration over the right upper arm and elbow size ranging from ½â€​ to 2â€​ with skin depth.

Injury No. 4:-

One cut injury over the left upper arm of size 5â€​ X 3â€​ involving skin arm muscles and vessels.

CRANIUM AND SPINAL CANAL

Scalp, Skull, Vertebrae : As described.

Membrane:- Rupture, duramater on right temporopareital region.

BRAIN AND SPINAL CORD

Brain:- Congested, haemorrhages on the right temporoparietal region. Blood stained CSF present in the lateral venticles.

Spinal Cord:- Healthy.

THORAX

Laryax and Trachere:-Congested and other organs healthy.

ABDOMEN

Stomach contains 50 ml of gastric juice. Small intestine contains digested food materials and gases. Large intestine contains faical matter and gases.â€

He opined that the death was due to coma as a result of head injuries as described. All injuries are antemortem and caused by sharp edged dangerous

weapon and homicidal in nature. Approx. time since death 24-36 hours. Injury No. 1 is individually sufficient to cause death of a person in the ordinary

course of nature. So from the evidence of PW2, it appears that the cause of death of the deceased is the injuries sustained by him. In such a situation,

this court is required to find out as to who was the assailant, and therefore, as we did not find any materials in the evidence of the PW1/informant to

relate the accused-appellant with the commission of the alleged offence, let us look into the evidence of the remaining witnesses.

[9] PW3, PW5, PW6, PW8, PW9, PW10, PW11, PW12 and PW13 are all witnesses who were declared hostile by the prosecution. On evaluation of

the evidence of these hostile witnesses, it is found that they have not implicated the accused-appellant with the commission of the alleged offence. The

prosecution appears to have relied upon the statement of PW4 and PW7. The PW4 made statement under Section 164 of the Cr.PC before the

learned Magistrate implicating the accused-appellant with the commission of the alleged offence. But, in his evidence before the learned trial court, on

oath, he is found to have retracted from his such statement. Otherwise also, statement made under Section 164 of the Cr.PC is not a substantive piece

of evidence. On the other hand, the statement made under Section 164 of the Cr.PC by the other witness, i.e., PW3, PW5, PW6 and PW7 also

appears to be same in nature so far implication of the accused-appellant is concerned. In their evidence, adduced before the learned court, they are

heard contradicting their such statements, made under Section 164 of the Cr.PC, and in effect, absolved the accused-appellant saying that they did not

either see the occurrence and even not remotely stated that the accused-appellant was involved with the commission of the alleged offence in this

case.

[10] The Investigating Police Officer, as PW14, deposed in respect of the investigation of the case and also with respect to the fact that the statement

of the aforesaid witnesses were recorded under Section 164 of the Cr.PC by the learned court and those statements have also been exhibited through

him by the prosecution. But, this court has not believed to such statements in view of their contradictory evidence, on oath, before the learned court.

So, such evidence of the Investigating Police Officer that the said witnesses made statement under Section 164 of the Cr.PC cannot improve the

case. On the other hand, the statement under Section 164 of the Cr.PC is not a substantive piece of evidence.

[11] On perusal of the impugned judgment also, it appears that the learned court relied upon the evidence of PW4 and PW7 mostly. It deserves

mention here that the PW4 and PW7 were an accused named in the FIR. But, there is no instance in the investigation of the case to indicate that they

were made witnesses in this case as no materials against them showing their involvement with the commission of the alleged offence were found. To

a pointed query to the Investigating Police Officer, he made a statement in his evidence that he did not know as to what for no statement as to the

involvement or otherwise of the PW4 and PW7 has been referred to in the charge-sheet. But, whatever it may be, all the witness, except PW2 and

PW14, who are the official witnesses, all other witnesses were declared hostile because they did not support the prosecution story. Even those, whose

statements under Section 164 of the Cr.PC were recorded, have made contradictory statement, on oath, before the learned trial court. But, inspite of

that, the learned trial court referred to such evidence to be reliable and considering such evidence as well as the sequence of events convicted the

appellant although the sequence of events are not found mentioned in the judgment specifically. On perusal of the evidence, no such sequence of

events is found which rope the appellant with the commission of the alleged offence.

[12] That being so, it appears to be a case of absence of evidence, and therefore, the judgment of the learned trial court does not appear to have been

based on evidence on record. Had the evidence been properly appreciated, as discussed above, the accused-appellant could not have been convicted

and sentenced and rather he would have been acquitted. Therefore, this court is of the view that the judgment of the learned trial court needs to be

interfered with. Accordingly, interfered and this jail appeal is allowed. The appellant be released forthwith, if not required in any other case.

[13] Send down the LCR with a copy of this judgment.

[14] This Court appreciates the assistance rendered by the learned Amicus Curiae and directs that an amount of Rs 7,500/- be paid to the learned

Amicus Curiae as honorarium for the assistance rendered by him.