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2023 Supreme(Gau) 850
IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Arun Dev Choudhury, J.
Harish Chandra Nath, S/o Late Hareswar Nath – Petitioner
Versus
The State of Assam – Respondent
Crl.A./9 of 2012
Decided On : 04-08-2023
Advocate Appeared:
For the Petitioner:Mr. M Chiring Advocate, Mr. DCC Phukan, Advocate, Mr. D Gogoi, Amicus
For the Respondent: Mr. D Das, learned Additional PP
Point of Law: Court cannot conclusively hold only on basis of evidence of victim that kerosene was poured and an attempt was made to burn her out.
Headnote:
Indian Penal Code, 1860 - Section 307, 323 – Criminal Procedure Code, 1973 - Section 164, 161 - Attempt to murder – Offence of voluntarily causing hurt - Assaulted by fist and kick blows - Prosecution was launched on basis of an FIR filed by victim alleging that accused/appellant assaulted victim by fist and kick blows causing swelling injury to her – Doubt still remains whether there was an attempt to murder to victim by pouring kerosene and by putting fire on her body. Para 22.
Finding of the Court: An allegation has been made that kerosene was poured and an attempt to burn her was made, however, in absence of seizure of wearing apparel of victim and in absence of seizure of matchbox and in absence of any such injury, court cannot conclusively hold only on basis of evidence of victim that kerosene was poured and an attempt was made to burn her out - Doubt still remains whether there was an attempt to murder to victim by pouring kerosene and by putting fire on her body - Appellant is entitled for benefit of doubt in present case - Conviction under Section 307 IPC awarded by learned trial court is set aside and quashed.
Result: Appeal partly allowed.
JUDGMENT :
1. Heard Mr. DCC Phukan, the learned counsel for the appellant and Mr. D Gogoi, learned amicus curiae. Also heard Mr. D Das, the learned Additional P.P., Assam, appearing for the State.
2. This appeal is preferred against the judgment dated 19.12.2011 passed by the learned Additional Sessions Judge (FTC), Kokrajhar in Sessions Case No. 08/2008. By the aforesaid judgment the appellant was convicted under Section 307/ 323 IPC and was sentenced to suffer rigorous imprisonment for 5 years and a fine of Rs. 5,000/-in default of which rigorous imprisonment for 5 months under Section 307 IPC and to pay fine of Rs. 300/-only in default of which simple imprisonment for one month under Section 323 IPC.
3. The prosecution was launched on the basis of an FIR filed by the victim, inter alia alleging that the accused/appellant assaulted the victim by fist and kick blows causing swelling injury to her. It was also alleged that her legs were tied up with rope by the accused with the help of some other persons and thereafter police arrived. She specifically mentioned involvement of the present appellant Harish Chandra Nath in commission of the offence. On the basis of the aforesaid investigation, the investigating officer filed charge-sheet under Section 307/323 IPC against the petitioner and three others persons including the husband of the victim. Thereafter, the committal court committed the matter to the learned Sessions Judge, Kokrajhar, who in turn entrusted the trial to the learned Additional Sessions Judge, Kokrajhar.
4. Charges were framed against the appellants, Anil Nath, one Purnima Nath and one Dipti Nath under Section 307/323 IPC. The appellant and others denied their guilt and accordingly trial proceeded.
5. To bring home the charges, the prosecution examined as many as 7 witnesses and exhibited certain documents including medical report and statement of the victim under Section 164 Cr.P.C.
6. The PW1 is a fellow villager, PW2, is Gaon Burah of the village, PW3 claims to be an eye witness, PW4 is the victim, PW5 is the maternal aunt of the victim, PW6 is the doctor, who examined the victim and submitted medical report and PW7 is the investigating officer.
7. Before going into details to the deposition of other witnesses this court is of the considered opinion that the star witnesses of the prosecution are PW3, the eye witness, PW4, the victim and PW6, the doctor.
8. The evidence of PW 2 i.e. the village head , in the considered opinion of this court is also relevant for determination of the present litigation though the deposition of PW1 and PW5, who are not eye witnesses are not so relevant for determination of the present case.
9. The victim, PW4 deposed before the court in the similar line that of the narration made in the FIR. However, during her examination under Section 164 Cr.P.C. she added an allegation beyond the FIR that the appellant Harish Chandra Nath poured kerosene on her body and tried to burn her. Similar stand was taken by her in her deposition before the court. She specifically deposed during her evidence that Harish Chandra Nath, Mitra Mohan Nath, Purnima Nath and Dipti Nath started assaulting her. Purnima Nath held her hair and put her to the courtyard where she was assaulted. She made a specific statement that that Harish Nath gave blows on her eyes and face. During her cross-examination, her statement that Harish Chandra Nath gave blows on her eyes and face and Harish Nath, Mitra Mohan Nath, Purnima Nath and Dipti Nath started assaulting her remained unshaken.
10. The PW 3, who claims to be an eye witness also deposed that Harish Chandra Nath assaulted Purnima, poured kerosene on her body and tried to set her on fire by using matchbox. According to him, he advised the accused that they should not assault the victim on road and if she was guilty they should lodge a complaint in the Club and with the village head. During his cross-examination, he deposed that Harish Chandra Nath had beaten her with a bamboo
