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GAUHATI HIGH COURT
S.N. Phukan & Y. Ibotombi
Singh, JJ.
Ganakanta Das & ors. - Appellants
versus
State of Assam - Respondent
Criminal Appeal No. 107 of 1988
Decided on 17-7-1989
Counsel for the parties:
Mr. J.M. Choudhury & Mr. Z. Kumar, Advocates- For the Appellants.
Mr. G. Gopal (P.P.)- For the Respondent.
IMPORTANT POINT
Normally a near relative is the last person to cover up the actual culprit and to falsely implicate the innocent person.
Headnote:Indian Penal Code, 1860- Section 302/34- Trial Court convicted and sentenced all the 3 accused persons- Code of Criminal Procedure, 1973-- Section 374- Convicts appealed the judgment of their conviction - Evidence of P.Ws. 5, 6, 8 & 9 (Closely related to the deceased) is neither true nor reliable and therefore deserves to be discarded- The theory of making hole by the accused persons has not been proved- Prosecution has not explained as to how the accused entered into the deceased's house-- None of the sons of the deceased gave evidence before the court- Even their maternal uncle and the neighbours remained passive and showed no interest- Undoubtedly, deceased had some enmity with the accused persons Possibility of falsely implicating the accused persons cannot be completely ruled out Prosecution has failed to establish that the accused persons were responsible for the gunshot injury sustained by the deceased Defence contention that the deceased was murdered somewhere else and thereafter the dead body was brought to the alleged kitchen is believable - Whether the impugned judgment calls for interference? (Yes). (Paras 1, 12 to 16)
JUDGMENT .
Y. Ibotombi, J.- On the basis of F.I.R. Ext. I lodged by Dambrowdar Bania on 1-5-80 at 8.15 a.m. that last night at about 1.00 a.m. the four accused persons namely- (1) Ghanakanta Das, (2) Bhedu Das, (3) Ramesh (Kamrupia) and (4) Puma tresspassed into the dwelling house of his paternal uncle Gopeswar Das by digging a "Sindhi" (a hole) at the outer edge of the mudfloor of the house and one of them fired one round from a gun thereby causing gun shot injury on the abdomen of Gopeswar Das who succumbed to the injury instantaneously, a case was registered at the Police Station Behali and investigations undertaken by Shri Sada Nanda Pathak, P.W.1 an Inspector of Police attached to that Police Station. On conclusion of the investigation the charges under Section 457/302/34 of the Indian Penal Code were hauled up against the four accused persons namely (1) Ghanakanta Das, (2) Bhedu Das and (3) Puma Bhuyan as the accused Ramesh was already dead during the period bf investigation, to the Court of Sessions, Darrang. On conclusion of the trial the learned Sessions Judge, Darrang found the three accused guilty under Section 302/34 of the Indian Penal Code and accordingly he sentenced them to imprisonment for the life. In addition, the three accused person were also directed to Pay a fine of Rs. 1,000/- each in default three months R.I.
It is against this order of conviction and sentence recorded by the learned Sessions Judge, Darrang that the present appeal has been preferred by the three convicts.
2. The prosecution case, as gathered from the evidence of the widow and the three daughters of the deceased, is that in the night between 30-4-80 and 1-5-80 some miscreants entered into the house of Gopeswar Das of Buroiguri Roumari Village by making a hole at the northern, edge of the mudfloor of the house and one of them fired one round from a gun thereby causing gunshot injury on the abdomen of Gopeswar Das. (deceased) who succumbed to the injury instantaneously. When his 14 years old daughter Smt Bina Das raised hue and cry one of the miscreants shot another round from the said gun aiming towards her thereby causing injury on her left eye. The miscreants also fired some more rounds when the inmates of the house raised alarm. The said Bina Das and some members of the family could recognise the four accused. One Dambrowdar Bania the nephew of the deceased Gopeswar lodged the report Ext. 1. During the course of the investigation the four accused were arrested by the Investigating Officer. However, the accused Ramesh was murdered after some months of the occurrence by some persons.
3. Dr. Dina Bora (P.W. 1) performed autopsy over the dead body of Gopeswar. On examination he found two perforating wounds one on the right side of the abdonmen 5 inches above and 2 inches right leteral to ambilicus and another on the left side of the abdomen 4 inches above and 3 inches lateral to ambilicus. Both the right and left lung were also ruptured. According to him only one gun shot injury was found on the person of the deceased. He was of the opinion that the injury was caused by a shot gun which was fired from a distance of about 3 feet. He was also of the opinion that the wounds were antemortem and that the cause of death was due to shock and haemorrhage as a result or gun shot wound.
4. On the basis of the evidence of the witnesses and also on the basis of the Medical report, the Investigating Officer submitted the charge-sheet in the manner as stated above.
5. The charges under Section 457 of the Indian Penal Code and 302/34 of the Indian Penal Code were framed against the three accused. They entered the plea of not guilty and claimed for trial.
6. The prosecution examined as many as eleven witnesses to establish the charges. The defence, however, examined only five witnesses to defend the accused. In this case there is no dispute that on the alleged night Gopeswar (deceased) sustained gun shot injury on his abdomen and that Gopeswar succumbed
