Back
2019 Supreme(Gau) 598
IN THE HIGH COURT OF GAUHATI
Manash Ranjan Pathak, Songkhupchung Serto, JJ.
Markash Jajara - Appellants
Vs.
The State of Assam and Ors. - Respondent
Crl. A. (J) 118 of 2016
Decided On : 12-03-2019
For the Appellant : Amicus Curiae
Headnote:
Indian Penal Code – Section 302 – Issue on Postmortem –The learned counsel led court through the deposition of PW-1 and submitted that as per his deposition the witness was not an eye witness to the occurrence of the incident, therefore, his evidence is only hear say and, as such, it cannot be relied upon – The learned counsel also submitted that PW-2 was also not an eye witness since he stated in his deposition that he was informed by the daughter of the accused (wife of the deceased) – Therefore, his evidence also does not help the case of the prosecution – The learned counsel, thereafter, referred to PW-4, the doctor who performed the post mortem over the deceased –The learned counsel further submitted that in a case where the prosecution is relying on circumstantial evidence, it is necessary that motive of the crime is proved –Held, In the present case, it is the daughter of the accused-appellant himself who testified that the accused-appellant had confessed to her that he had killed her husband – In normal human circumstances it is not likely that ones own daughter would testify against her own father –The fact that it has been done in this case shows that nothing but the truth has been stated by the witness(the daughter) –Therefore, court find is no reason to suspect the veracity of the witness – Further, the confessional statement of the accused as stated by the two witnesses is well supported by the circumstantial evidence that the incident took place in the precinct of the house of the accused- appellant himself and, the accused-appellant was alone with the death body of the victim at the time of the incident –In view of the above discussion, court find no reason to interfere with the decision of the learned Trial Court – Appeal dismissed
JUDGMENT :
Songkhupchung Serto, J.
1. We have heard Mr. Azad Ahmed, learned Amicus Curiae for the accused appellant and Ms. Shamima Jahan, learned Additional Public Prosecutor, appearing for the State of Assam.
2. This is a jail appeal directed against the judgment and order dated 03.10.2016 passed by the learned Sessions Judge, Jorhat, in Sessions Case No. 188 (J-T)/2015, arising out of Titabar P.S. Case No. 65/2015, wherein the accused appellant was held guilty of having committed murder of a person, namely, late Markush Borja and sentenced to life imprisonment with a fine of Rs. 10,000/- with stipulated imprisonment of 6 (six) months on default of payment of the fine amount.
3. Facts leading to the institution of the FIR case, which in turn, led to the registration of the Sessions Case, and the filing of this appeal, briefly stated are as follows;
On 29.03.2015, an FIR being Titabar P.S. Case No. 65/2015, under Section 302 of the IPC was registered on receipt of an ejahar submitted by P.W. -8 on the same day at about 10 AM, which stated that at about 5 PM of 28.03.2015, he (the informant) received an information that his younger brother Markush Borja had been assaulted and killed by the accused-appellant with a bamboo stick, inside the later's house, and after receiving the information, he had gone to the house of the accused-appellant and actually found his brother there lying dead. It was also mentioned that his deceased brother was staying with the in-laws since the last 3/4 months. Following the registration of the FIR, one Sri Lileswar Gogoi, a Police Officer posted at Titabar Police Station at that time, was entrusted with the investigation of the case. Accordingly, the Police Officer investigated the case and after all the formalities were completed, the charge sheet under Section 302 of IPC was submitted against the accused-appellant, before the learned Sub-Divisional Judicial Magistrate (M), Titabar, who in turn, committed the same to the Court of learned Sessions Judge, Jorhat. The learned Sessions Judge, on receipt of the same framed the charge under section 302 of IPC. After the charge was framed, the same was read over and explained to the accused- appellant and the accused- appellant pleaded not guilty. Therefore, the trial was taken up by the learned Sessions Judge. The prosecution produced and examined as many as 9 (nine) witnesses including the doctor, who performed the autopsy over the dead body of the victim and the Investigation Officer, who investigated the case. Thereafter, the learned Sessions Judge heard the parties and came to the conclusion that there is sufficient evidence to hold the accused appellant guilty of the offence punishable under Section 302 of the IPC. Therefore, the accused appellant, was held guilty of the offence charged and sentenced him to the imprisonment and the fine as stated above. Being aggrieved by the judgment and order, the accused appellant has come before this Court through this jail appeal.
4. The case of the prosecution, as submitted by the learned Amicus Curiae, in brief, is that there was no eye witness to the commission of the crime and the prosecution has failed to prove through the circumstantial evidence, beyond reasonable doubt, because, the same lacks corroboration from other evidences. Therefore, the learned Sessions Judge has erred in coming to the conclusion that the accused appellant had committed murder of the victim.
In order to substantiate his submission, the learned Amicus Curiae took us through the evidence given by PW-8 and submitted that the informant was not an eye witness as per his deposition, therefore, the evidence given by him in no case proves the case of the prosecution.
The learned counsel then led us through the deposition of PW-1 and submitted that as per his deposition the witness was not an eye witness to the occurrence of the incident, therefore, his evidence is only hear say and, as such, it cannot be relied upon.
The learned counsel also subm
