Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Gau) 595

IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MICHAEL ZOTHANKHUMA, MRIDUL KUMAR KALITA, JJ.
Raju Das - Appellant
Versus
The State of Assam – Respondent
Crl.A(J) 103 of 2019
Decided on : 19-06-2023

Advocates:
Advocate Appeared:
For the Appellants : Mr. AH Alamgir Ms. B Choudhury, Amicus Curiae
For the Respondent: Ms. B Bhuyan, Mr. NH Mazarbhuiyan, Mr. NBP Singha.

Point of Law: Once prosecution has brought home evidence of presence of accused at scene of crime, then onus stood shifted on defence to explain as to what had brought them to place of occurrence.

Headnote:
Indian Penal Code, 1860 - Sections 341, 302, 34, 342 – Criminal Procedure Code, 1973 - Section 313, 161 - Offence of committing wrongful restraint – Murder offence – Appeal against conviction - Appeals filed against judgment passed by which three appellants have been convicted for offence of committing wrongful restraint and murder of deceased – Findings of learned Trial Court being based on evidence of eye witness PW7, which has not been shaken or contradicted, cannot be faulted - Para 32.
Finding of the Court: Weapon of offence has not been recovered - This could be due to fact that appellants could have thrown away weapon while running away in rain at night from place of occurrence - As evidence of PW7 has not been shaken, Court is of view that non recovery of weapon of offence is not fatal to case of prosecution – Court find that appellants have not attempted to make any alibi with regard to why they were there at place of occurrence on fateful rainy night - No attempt at giving an explanation has been made by appellants during their examination under Section 313 Cr.PC, wherein they have made a blanket denial with regard to questions put to them, pursuant to evidence recorded against them during trial - No explanation having been made by appellants as to what they were doing on a rainy night, coupled with fact that PW7 had witnessed incident of assault on deceased by appellants, Court do not find any reason to interfere with impugned judgment.
Result: Appeals dismissed.

JUDGMENT :

M.Zothankhuma, J

Heard Mr. AH Alamgir, learned counsel for the appellants, Ms. B Chowdhury, learned Amicus Curiae, Ms. B Bhuyan, learned Additional Public Prosecutor appearing for the State of Assam, Mr. NH Mazarbhuiyan, learned counsel and Mr. NBP Singha, learned counsel for the informant.

2. The two appeals have been filed against the impugned judgment dated 16.05.2019, passed by the court of the learned Sessions Judge, Hailakandi in Sessions Case No. 19/2017, by which the three appellants have been convicted under Sections 341/302/34 IPC for the offence of committing wrongful restraint and murder of the deceased, Harendra Singha. The three appellants have been sentenced for life with a fine of Rs. 2,000/-, each, in default two months rigorous imprisonment under Sections 302/34 IPC. They were also sentenced to undergo simple imprisonment for one month under Sections 341/34 IPC. The sentences are to run concurrently.

3. The prosecution case, in brief, is that on 30.07.2014, the informant, who is prosecution witness No. 1, in short “PW1”, lodged an FIR dated 30.07.2014 with the Officer-In-charge of Lala Police Station, alleging inter alia that on 29.07.2014, at about 09:30 pm, his neighbour Dharmen Singha saw the appellants assaulting the deceased with a sharp weapon on several parts of his body and left him on the road. Dharmen Singh (PW7) stopped his motor cycle and tried to catch the appellants, who had fled away from the place of occurrence. Though the PW7 chased the appellants, the appellants managed to run away. An ambulance service was informed and the body of the deceased was taken to the hospital where he was declared dead.

4. On receipt of the FIR, Lala P.S. Case No. 223/2014 was registered under Sections 341/342/302/34 IPC. After investigation was completed by the Police, charge-sheet was submitted against the appellants, wherein the Investigating Officer found a prima facie case against the appellants under Sections 341/342/302/34 IPC.

5. On 23.03.2017, charges were framed against the appellants under Sections 341/34 and 302/34 IPC, to which the appellants pleaded not guilty and claimed to be tried. During the trial proceedings, 11 (eleven) prosecution witnesses were examined by the learned Trial Court. Then the appellants were examined under Section 313 Cr.PC. Thereafter, the learned Trial court passed the impugned judgment dated 16.05.2019 in Sessions Case No. 19/2017, convicting and sentencing the appellants under Section 302/34 IPC and Section 341/34 IPC.

6. The counsel for the appellants and the learned Amicus Curiae submit that the impugned judgment is not sustainable, inasmuch as, there are contradictions in the time of the incident and the communication of the incident to the Police. They submit that while the eye witness PW7 had seen the incident of assault at around 09:30 pm on 29.07.2014, as per the FIR and the evidence of PW7, the GD Entry No. 476 dated 29.07.2014, which had been made on the basis of the information provided by one Najrul Khan, shows that the GD Entry had been made at 09:05 pm on 29.07.2014, to the effect that Najrul Khan saw one injured person lying on the road. Thus, as there is a discrepancy with regard to when the incident occurred, the same implied that PW7 did not witness the incident and that the incident of assault by the appellants could not be said to be proved.

7. The learned counsels for the appellants also submit that in the statement made by PW3 to the Police under Section 161 Cr.PC, PW3 stated that PW7 told him that PW7 saw the appellants running away from the place of occurrence. However, in the deposition of PW3 before the learned Trial Court, PW3 states that PW7 had told PW3 that the appellants had assaulted the deceased and fled away. Here also, the implication of the differing statements, wherein assault was not mentioned in the Section 161 Cr.PC statement, implies that PW3 was not a reliable witness and as such, the evidence of PW3 could not be admissible as evid