Sri Fazal Gogoi & Anr. vs State of Assam

This is an appeal against the judgment and order, dated 19.11.2008, passed by the learned Sessions Judge, Sivasagar in Sessions Case No.

137(SS)/ 2006 convicting the accused-appellants under Sections 304 Part-I/34 of the IPC and sentencing them to rigorous imprisonment for 5

(five) years and a fine of Rs. 1,000/- each and in default further rigorous imprisonment for another 2 (two) months each.

Heard Mr. R Kalita, learned counsel for the accused-appellants as well as Mr. BJ Dutta, learned Additional Public Prosecutor, appearing for

the State respondent.

The fact of the case is that, on 27.08.2005, at about 11:00 pm some unknown persons dealt cut blows on deceased, Hiranya Bora, following

which he died near Naojan Gaon Tiniali.

The FIR, Ext-2, was lodged on the above facts by one Sri Haren Bora who is the son of the uncle of the deceased. The Police entered the

information received initially in the General Diary and initiated the investigation and thereafter only received the FIR which was registered and

investigated into. But, prior to receipt of the formal FIR, on the basis of the General Diary entry, the Police went to the place of occurrence, held

inquest of the dead body of the deceased, recorded statements of the witnesses and also seized a mud-stained dao which was exhibited as

material Ext-1, seized vide Ext-6.

The post-mortem of the deceased was performed in the Sivasagar Civil Hospital. After completion of the investigation, the Police submitted

chargesheet against the accused-appellants under Sections 302/34 of the IPC.

After exhausting all the required legal formalities, the learned Sessions Judge commenced the trial of the case. Charge under Sections 302/34 of

the IPC was framed against the accused-appellants to which they pleaded not guilty, and therefore, the trial.

In order to establish the charge, the prosecution examined as many as 13 witnesses. After closure of the prosecution evidence, statements of the

accused-appellants were recorded under Section 313 of the Cr.PC. In their such statements, they are heard denying the accusations made against

them. The defence declined to adduce any evidence.

On perusal of the entire evidence on record, it is found that the evidence of PW''s 3, 4, 5 and 6 appears to be most important as they have led

some evidence as required, in respect of the facts and circumstances of the case.

The PW1 in the instant case is the informant. He saw the deceased lying dead in front of the house of the PW7 with cut injuries. He was

informed by the wife of the deceased/PW2 that an incident of altercation took place between the accused-appellants, Fazal and Krishna with the

deceased, Hiranya Deka at the Tinali in the previous night and in the midst of the quarrel, both the appellants had cut the deceased to death. The

PW1 lodged the FIR on the basis of the information he obtained from the PW2 aforesaid.

The evidence of PW3 is that she was reported about the occurrence by PW4 in the relevant night itself to the effect that the deceased got

involved in an altercation with the accused-appellants in front of the house of the PW7.

The PW3 is the person who witnessed the altercation, which preceded the occurrence between the accused-appellants and the deceased in

which the deceased died. According to PW3, the occurrence took place at about 7:30 pm near Naojan Tiniali in the night of Janmastami. He

himself and both the accused-appellants with one Mukut, PW4 and Giridhar, PW7, were coming to the place of PW7 and in front of the house of

PW7, the deceased Hiranya Bora along with PW6 were coming from the opposite side and at that point of time, the accused-appellants Fazal

focused torch light on the eyes of deceased Hiranya following which the altercation ensued between them. The accusedappellant, Krishna

intervened in the altercation between the deceased, Hiranya Bora, and the accused-appellant, Fazal, and as such, he got himself entangled in the

occurrence.

The PW3 and PW4 took the deceased to his house and PW4 also informed the wife of the deceased/PW2 about the occurrence of

altercation. In the next morning, he learnt from one Moheswar Gogoi that the deceased was killed in front of the house of PW7. The evidence of

PW3 and PW4 appears to be same on this core issue. The PW4 deposed that there was exchange of fists and blows between the accused-

appellants and the deceased Hiranya over the act of focusing torch light on the face of the deceased. The evidence of PW3 and PW4, taken

together, makes it clearly appears that there took place an incident of scuffle between the accused-appellants and the deceased in front of the

house of the PW7 and PW5, who were proceeding to the Namghar on account of Janmastami Tithi, happened to be present at the place of

occurrence and found both the accused-appellants there. He also saw that the deceased, Hiranya Bora, was coming at that point of time from the

eastern direction shouting something.

These evidence shows that the deceased, Hiranya Bora, came out for the 2nd time shouting after the 1st incident of altercation, fists and blows,

etc. Two persons Mukut and Giridhar who would be the vital witnesses were not examined in this case who saw the deceased coming out for the

2nd time shouting.

The evidence of PW5 makes it appear that he found both the accused-appellants and the deceased together and sensing something, they left

the place and had hide himself. After the occurrence, he came out and saw the deceased lying dead with injuries on his person.

The PW6 appears to have supported the evidence of PWs 3, 4 and 5 saying that while he was returning from the shop of one Basudev, he

saw the deceased entangled in a scuffle with the accused-appellants at about 8:00 to 8:30 pm.

The evidence on record, as discussed above, makes it clear that there is no eye witness to the occurrence, and therefore, the learned trial court

relied upon the circumstances leading to an irresistible conclusion that it was none but the accused-appellants who committed the offence in the

instant case.

The fact that the deceased, Hiranya Bora and the accusedappellants were entangled in an altercation and thereafter in a scuffle and after one

hour at about 8:30 to 9:00 pm, he was found dead with injuries on his person. On the basis of such evidence, the learned trial court relying on the

last seen together"" theory, convicted and sentenced the accused-appellants.

In the factual background of the case, in the considered view of this Court, the evidence that could be made available to substantiate that

circumstances exist to conclude that it was none but the accused-appellants who have committed the crime. Although the charge was framed under

Sections 302/34 of the IPC, the learned trial court, after threadbare discussions of the evidence on record including the medical evidence, held the

accused-appellants guilty under Sections 304 Part I/34 of the IPC which appears to be based on evidence on record. The conviction recorded by

the learned trial court holding both the accused-appellants guilty of commission of the said offence, appears to be based on circumstantial evidence

on record, in the absence of any eyewitness to the occurrence.

Therefore, this Court does not find anything requiring interference by this Court so far the conviction recorded by the learned trial court is

concerned. However, so far the punishment imposed upon the accusedappellants is concerned, this Court is of the view that substantive sentence

of rigorous imprisonment of 5 (five) years each, if reduced to rigorous imprisonment for 1 (one) years for each, will meet the ends of justice, raising

the fine amount of Rs. 1,000/- to Rs. 10,000/- each.

Accordingly, the accused-appellants are sentenced to rigorous imprisonment for 1 (one) year each and a fine of Rs. 10,000/- each, and in

default, rigorous imprisonment for 3 (three) months each.

The appeal is partly allowed.

Send down the LCR along with a copy of this judgment.