The court emphasized the importance of proper adjudication and ordered re-examination of witnesses to address irregularities in the trial and deficiencies in the evidence.

JUDGMENT :

Malasri Nandi, J.

This appeal has been preferred against the Judgment and Order, dated 07.02.2023 passed by the learned Additional Sessions Judge (FTC), Dibrugarh in connection with Sessions case No. 158/ 2017, whereby the appellant was convicted under Section 302 /448 of the IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs.1000/-, in default of payment of fine R.I. for one month, for the offence under Section 302 IPC. The appellant was also sentenced to undergo rigorous imprisonment for two months for the offence under Section 448 of the IPC. Both the sentences were directed to run concurrently.

2. The wife of the deceased (PW-1) lodged an FIR before the Officer-in-Charge of Borburah Police Station on 16.10.2017, stating inter-alia that on 15.10.2017 at round 10 pm, the appellant along with his son Bipul Dihingia and son in law Bikash Dhadumia came to the house of the informant and inflicted injuries with iron hammer on the head of her husband Prashanta Chetia, as a result of which he sustained grievous injuries in his head. Though he was admitted to Aditya Nursing Home at Diburagrah but his condition was critical. It is also alleged in the FIR that they also assaulted her nephews Simanta Saikia, Rahul Saikia and Arpit Konwar who had come to their house on the date of incident, to take her ailing husband to the hospital.

3. On receipt of the complaint, a case was registered vide Borburuah P.s. Case No. 235/2017 under Section 448/326/325/307/34 of the IPC. Subsequently, the injured succumbed to his injuries on 18.10.2017. Then the investigation officer made a prayer before the jurisdictional magistrate to add Section 302 IPC and accordingly Section 302 IPC was added. Thereafter the investigation was initiated. During investigation the statements of the witnesses were recorded. The inquest was conducted on the dead body of the deceased and subsequently the dead body of the deceased was sent for post-mortem examination. In the course of investigation, one hammer was seized which was used at the time of commission of the crime. After completion of the investigation, having found sufficient incriminating materials against the appellant for causing death of the deceased, charge sheet was submitted against him under section 448/302 IPC. However, against other accused persons, i.e. Bipul Dihingia and Bikash Dadhumia, charge sheet was laid under Section 448/352/294/323/34 IPC before the Court of SDJM, Dibrugarh. As the offence under Section 302 of the IPC is exclusively triable by the court of Sessions, the case was committed accordingly.

4. During trial, charge was framed under Section 448/302 IPC against the appellant and two other accused Bipul Dihingia and Bikash Dadhumia, to which they pleaded not guilty and claimed to be tried. During trial, eight witnesses were examined by the prosecution to prove the guilt of the appellant and his associates. On the other hand, the appellant did not choose to adduce any evidence in support of his case. After completion of trial, the statement of the appellant and other accused were recorded under Section 313 of the CrPC, wherein incriminating materials available in the evidence of the witnesses were put to them, to which they denied the same by stating that they had been falsely implicated in this case. The appellant had specifically stated that no hammer was recovered or seized from his possession. The appellant also stated in his statement under Section 313 CrPC that he had not done anything. The dispute is regarding land. Kamal Chetia (S.I.) is the brother of the complainant and they had framed him in this case.

5. After hearing the argument advanced by the learned counsels for the parties, the trial court had convicted the appellant under section 302/448 IPC and other accused persons (not appellant)under Section 448 IPC and they were released under the Probation of Offenders’ Act. Instead of meting out to any punishment , the accused Bipul Dihingia and Bikas