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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, ARUNACHAL PRADESH AND MIZORAM
AJIT SINGH and MANOJIT BHUYAN, JJ.
Bhuban Saikia – Appellant
Vs.
The State of Assam - Respondents
Criminal Appeal No. 5(J) of 2013
Decided On : 09-01-2017
Indian Penal Code ,1860 - Section 302/34 and 394/34 – Offence of murder - Accident - Driving rashly - Appeal against conviction - Prosecution case on a veterinary doctor of called his younger brother (PW-1) and asked him to send his car to fetch him home at the early hours on the next day - Accordingly, sent his car to with his driver at about 4 a.m - But on way, was intercepted by appellant and was murdered and his body was thrown near - Thereafter, they stole vehicle and while they were driving rashly to escape they met with an accident - Heard that one man was lying on road being injured and coming to the place, he found with multiple injury marks on all over his body - He then informed police station and police immediately came to place of occurrence and collected blood samples in presence of vide Exhibit-3 seizure list - Body of was sent for post-mortem examination after inquest being done by (PW-13) - He submitted his report vide Exhibit-5 inquest report - Held, Although, it is medical evidence that injuries were inflicted by sharp weapon, but non seizure of any such weapon from appellant makes prosecution case doubtful - Further, police also could not recover weapon of the crime - Car met with an accident and (PW-10) who was then Motor Vehicle Inspector examined vehicle and only reported vide Exhibit-4 report that vehicle met with accident while being stolen by the miscreants – There are only two circumstances emerging from the evidence - First, recovery of dead body of driver and secondly finding appellant with others inside the vehicle - But, places where dead body of the victim was found and the accident took place are far apart - There is every possibility of appellant boarding vehicle after being stolen by others - There is hardly any evidence testifying that appellant was seen with Azizur while he was alive - Besides, no weapon of offence was found from the possession of appellant - Find ourselves in complete disagreement with finding of trial court that appellant alone was the perpetrator of the crime and is of the considered opinion that appellant is entitled for the benefit of doubt - In view of the above, conviction and sentence of the appellant are set aside and he be released from jail forthwith if not wanted in any other case - Appeal stands allowed.
Ajit Singh, J.
The sole appellant Bhuban Saikia has been convicted under Section 302/34 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.10,000/- with default stipulation. He has also been convicted under Section 394/34 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.1,000/- with default stipulation.
2. The victim of the incident was Azizur Rahman @ Bhaity Ali, aged about 28 years.
3. According to the prosecution case, on 18.07.2007, Dr.Haidor Hussain (PW-2), a veterinary doctor of Golaghat, called his younger brother Imran Hussain (PW-1) and asked him to send his car to fetch him home at the early hours on the next day i.e. on 19.07.2007. Accordingly, Imran sent his Maruti Alto car to Golaghat with his driver Azizur Rahman @ Bhaity Ali at about 4 a.m. But on way, Azizur Rahman was intercepted by the appellant, Deuta Chetry and Mohan Das and was murdered and his body was thrown near Kachajan. Thereafter, they stole the vehicle and while they were driving rashly to escape, they met with an accident. When the car dashed making a big sound, Nabin Gogoi (PW-5) who heard the sound from his house, came out to find the car meeting with the accident and also found Bhuban, Deuta and Mohan inside the car. On interrogation, when he could not get satisfactory reply, Nabin informed the Titabar Police Station over phone.
4. In the meantime, near Kachajan, Ramkrishna Dev @ Kanukrishna (PW-9) heard that one man was lying on the road being injured and coming to the place, he found Azizur with multiple injury marks on all over his body. He then informed the police station and police immediately came to the place of occurrence and collected blood samples in presence of Ramkrishna vide Exhibit-3 seizure list. The body of Azizur was sent for post-mortem examination after inquest being done by Sushanta Kumar Dutta (PW-13). He submitted his report vide Exhibit-5 inquest report.
5. Dr. Debojit Gogoi (PW-6) upon conducting post-mortem examination on dead body of Azizur found four stab injuries over right chest penetrating underlying lung and vessels, 2 cm in size, 3” in right arm bone depth and 2 in back penetrating lung, which were all ante-mortem in nature. According to his opinion vide Exhibit-2 post-mortem report the cause of death was due to syncope as a result of injuries sustained by the victim.
6. Ejahar (Exhibit-1) of the incident was made by Imran (PW-1) at Police Station Morioni. This he did on getting the information from the police station about the death of Azizur and accident of his car followed by the apprehension of appellant, Deuta and Mohan. On receiving the information, Investigating Officer –Apurba Kumar Bora (PW-11) rushed to the spot and prepared the sketch map etc. He also went to Titabar Police Station and took custody of the appellant.
7. The appellant was also brought before Abhijit Deori (PW-12), Judicial Magistrate-cum-Munsiff at Jorhat, for recording confessional statement. But in his statement he did not state anything material incriminating himself. On completion of investigation, charge-sheet was submitted against the appellant, Deuta Chetry and Mohan Das. In the charge sheet, Jiten Das was shown as absconder. Later on, case of the appellant was split up as he was in custody and other charge-sheeted accused did not appear and the appellant faced the trial.
8. During trial, the appellant abjured his guilt and pleaded false implication. According to the appellant, although he was arrested by the police alongwith the other accused, he was completely innocent.
9. But the trial court relying upon the evidence adduced by the prosecution, convicted and sentenced the appellant as aforesaid.
10. In the present case, the injured body of Azizur was found on the road near Kachajan. According to the evidence of Ramkrishna, he was lying with multiple injuries which have been corroborated by the medical evidence of Dr. Debojit Gogoi. Sushanta (PW-13) who conducted
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