Mohan Rabidas vs State Of Assam

Ajit Singh, C.J.

The appellant Mohan Robidas has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of

Rs.1,000/- with default stipulation.

The victim of the incident was Bogai Robidas, aged about 45 years. He was thebrother and neighbour of appellant.

According to the prosecution case, on 31.05.2011 the appellant entered into the houseof Bogai Robidas at about 8 PM and after having an

altercation with Bogai Robidas without any reason, hacked him with an axe. Bogai Robidas sustained grievous injuries on his head. He was

immediately taken to Golaghat Civil Hospital from where he was shifted to Assam Medical College and Hospital at Dibrugarh.

Smti Dhanbai Rajowar (PW-1)-sister of Bogai Robidas-coming to know about theincident lodged Exhibit-4 First Information Report in the

Numaligarh Police Out-Post which was subsequently registered at Golaghat Police Station as case no. 313/11 under Section 448/326 of the Indian

Penal Code.

Prior to lodging of the First Information report, she telephonically intimated the policestation about the incident and on being so informed, Sub-

Inspector Konokeswar Das (PW-10) visited the place of occurrence and arrested the appellant. He drew sketch map-Exhibit-5, recorded statements

of witnesses, seized the axe vide Exhibit-1 seizure list. As he was transferred, the later part of investigation was carried by Sub-Inspector B.K.Chetry

(PW-8).

On 04.06.2011, Bogai Robidas succumbed to his injuries at Assam Medical College andHospital, Dibrugarh and Assistant Sub-Inspector Nareswar

Gohai (PW-11) conducted inquest over his dead body. Thereafter, he sent the dead body for conducting post mortem examination.

Dr. Manoj Kumar Singha (PW-9) conducted post mortem examination on the deadbody of Bogai Robidas. He found the following injuries:-

a. Contusion behind the left ear -8 cm x 7 cm,

b. One abrasion on the neck side of the neck(mid-part)-2 cm x 1 cm,

c. Contusion on the occipital and left temporal area of the scalp,

d. Depressed fracture over left temporal and occipital bone of the skull,

e. Fracture over mastoid part of left temporal bone extended to Foramina megna.

According to him, death was due to comma as a result of head injuries. All the injuries were ante-mortem and caused by blunt force impact. His post

mortem examination report is Exhibit-3.

Sub-Inspector B.K.Chetry, after completing the investigation, submitted Exhibit-2charge-sheet against the appellant for offences under Sections

326, 457 and 302 of the Indian Penal Code.

During trial, the appellant abjured his guilt. But the trial court relying upon theevidence adduced by the prosecution, convicted and sentenced the him

as aforesaid.

Most of the witnesses are relatives of both the victim and appellant. Dhanbai Rajuarand Geeta Robidas (PW-2) are sisters of the victim, Purobi

Robidas @ Pullobi Robidas (PW-3) is his daughter, Maniram Robidas (PW-5) and Rameswar Robidas (PW-6) are his cousin and Kalpana Mahatu

(PW-7) is the wife of the appellant. Dhanbai Rajuar deposed that Bogai Robidas was sitting in the house of one Budul Robidas where the appellant

came and assaulted him. She has admitted during her cross-examination that she did not herself witness the occurrence and went to the place of

occurrence after the incident took place. She also did not find the appellant at the place of occurrence.

Geeta Robidas though deposed that she found the appellant fleeing with the axe in his hand from the house of Budul alias Sayaram, immediately after

the occurrence, she did not state as such during her statement recorded under section 161 of the Code of Criminal Procedure. Besides, the axe was

seized from the house of Budul Robidas and not from the possession of the appellant. Seizure witness Rameswar Robidas has categorically deposed

that the axe was seized from the house of Sayaram which was the place of occurrence where Bogai Robidas was lying. Rameswar Robidas reached

the place of occurrence immediately after the occurrence and in the seizure list too, it has been mentioned that the axe was seized from the place of

occurrence.

Therefore, Geeta Robidas could not have seen the appellant running away with the axe in his hand. So, her testimony is doubtful and seems to be

developed one. Besides, Purobi Robidas has also deposed that the appellant fled leaving behind his sandal and axe when she along with Geeta Robidas

reached the place of occurrence. Thus, this witness has also contradicted the testimony of Geeta Robidas. At the same time, though Purobi Robidas

deposed that she saw the appellant assaulting her father and Geeta Robidas, too, saw the occurrence, the same is not corroborated by Geeta Robidas.

Besides, in her statement recorded under section 161 of the Code of Criminal Procedure, Purobi Robidas did not say that she saw the appellant

causing the injuries to her father and as such her subsequent testimony in the court is apparently developed one making it not reliable.

Bharati Talukdar (PW-4) did not see the occurrence, Maniram Robidas came to theplace of occurrence after the incident took place and Kalpana

Mahatu also deposed that she was told by the daughter of Bogai Robidas that it is appellant who assaulted Bogai Robidas making it a hearsay

evidence. Although, it has been testified by Geeta Robidas, Purobi Robidas and Rameswar Robidas that they saw the appellant coming out of the

house of Budul Robidas, neither of them had stated as such before police immediately after the occurrence and the police even did not record the

statement of Budul Robidas or any of his family members to substantiate that the appellant was involved in the occurrence. Since, the occurrence took

place in the house of Budul Robidas, it was incumbent upon the investigating officer to record his statement and also the statements of his family

members since they were material witnesses and could have thrown sufficient light into the prosecution story as to how Bogai Robidas died within

their compound. But the same was not done. Hence, the appellant coming out of the house of Budul Robidas also remains not substantiated.

We, therefore, disagree with the findings of the trial court and hold the appellant notguilty of the charge. The impugned judgment is, accordingly,

set aside. The appellant is in jail and as such, he is directed to be released forthwith.

The appeal is, accordingly, allowed.