Point of Law : prosecution has failed to establish the charge brought against the appellant under Section 302 of the IPC beyond reasonable doubt.

JUDGMENT :

Suman Shyam, J

1. Heard Mr. A. Upadhyay, learned counsel appearing for the sole appellant. We have also heard Ms. B. Bhuyan, learned APP, Assam, appearing for the State. None has appeared for the informant/respondent no. 2.

2. The judgment and order dated 09/10/2018 passed by the Court of learned Additional Sessions Judge (FTC), Lakhimpur at North Lakhimpur, by means of which the appellant herein, was convicted under section 302 of the IPC and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 3000/-with default stipulation, has been assailed by filing the present appeal.

3. The prosecution case is to the effect that on 02/01/2012, at around 7-30 p.m., the FIR named accused persons had assaulted deceased Pradip Das inside Gharmara Satra, resulting in his death. Sri Latu Das, who had accompanied the deceased had reported the matter to the family members of the victim. On 03/01/2012, Sri Tulan Das i.e. the elder brother of the deceased had lodged an ejahar with the Officer-in-Charge of North Lakhimpur Police Station informing him that the three accused persons named in the ejahar and another unknown person had assaulted his younger brother Pradip Das when he went to Garmara Satra to collect money from the shops at around 7-30 p.m. on 02/01/2012 after supply of food products to the retailers from “Ahar factory”. In the FIR dated 03/01/2012, it was also mentioned that Sri Latu Das had accompanied the deceased, who was also a assaulted with a piece of big split timber inside the Satra premises by putting gag on their mouth. Latu Das had managed to flee but the accused persons had assaulted his brother. The witness could recognize the accused persons. Therefore, a request was made to the Police to take action in the matter.

4. Based on the FIR dated 03/01/2012, North Lakhimpur Police Station case No. 02/2012 was registered under Section 302/325/34 of the Indian Penal Code (IPC). Upon completion of investigation, the I.O. had laid charge sheet under Section 302/323/34 IPC against the appellant and accused Prasanna Das (since deceased). Based on the charge sheet submitted by the IO, the learned trial Court had framed charges under Section 323/302/34 IPC against the accused persons. However, since the accused persons had pleaded not guilty, they were made to face trial. It appears that one of the accused, viz. Sri Dhunu Das was found to be a juvenile in conflict with law and the co-accused Prasanna Das had expired on 30/05/2017 during the pendency of trial and as such, the proceeding had abated against him.

5. In order to prove the charge brought against the accused Konbhaity Das, the prosecution had examined as many as 9 (nine) witnesses including the doctor Dambarudhar Mili (PW-2) who had conducted the post-mortem examination on the dead body, Sri Nabajit Das (PW-9), the IO who had conducted the investigation in connection with North Lakhimpur PS case No. 02/2012 as well as Ms. Basanti Hazarika (PW-8), who took over from the earlier IO, completed the investigation and submitted charge sheet (Ext-5). After recording of evidence of the prosecution witnesses, statement of the appellant/accused was recorded under Section 313 Cr.P.C., wherein he had claimed innocence. The defence side, however, did not lead any evidence.

6. PW-4 Sri Latu Das was the person who had accompanied the deceased Pradip Das on the day of the incident inside the Gharmara Satra where the occurrence took place and therefore, is a key witness in this case. According to the PW-4, the appellant, in association with his two nephews, viz. Prasanna Das (since deceased) and Dhunu Das (juvenile), had assaulted the deceased with a stick leading to his death. Taking note of the evidence adduced by the PW-4, the learned trial Court has held that the prosecution has succeeded in establishing the charge brought against the appellant under Section 302 of the IPC beyond reasonable doubt and accordingly, convicted the appellant and sentenced him as