The court upheld the conviction under Section 304 Part-II IPC, affirming that related witnesses' testimonies are credible and sufficient for establishing direct involvement in the crime.

JUDGMENT :

MALASRI NANDI, J.

1. Heard Mr. K.K. Parasar, learned Additional Public Prosecutor for the State of Assam.

2. This appeal is directed against the judgment and order dated 24.09.2012, passed by the learned Sessions Judge, Nagaon in Sessions Case No. 207/2000, whereby, the accused/appellant was convicted under Section 304 Part-II of IPC and sentenced him to undergo rigorous imprisonment for 3(three) years and to pay a fine of Rs. 5,000/- (Rupees Five thousand) in default of payment of fine further rigorous imprisonment for 6(six) months.

3. The prosecution case in brief is that on 08.05.1998, at around 8:30 AM, the accused/appellant along with some other persons trespassed into the land of the informant and as per direction of one Bhola Kalita and Rabiram Kalita, the accused/appellant and co-accused Upen Kalita gave blows to Ratulmoni Bora causing grievous injuries on his person. Due to the alleged assault, Khagen Bora also sustained injuries.

4. On the same day, an FIR has been lodged by PW-4, brother of the deceased before the Officer-In-Charge, Nagaon Police Station and a case was registered vide Nagaon Police Station Case No. 356/1998, and the investigation was initiated. After completion of investigation, charge-sheet has been laid against the accused/appellant Santosh Kalita, Rabiram Kalita, Upen Kalita and some other accused who were acquitted by the trial Court under Section 302/34 of IPC. As the offence under Section 302 of IPC, is exclusively triable by the Court of Sessions, the case was committed accordingly.

5. It is pertinent to say here that during trial Rabiram Kalita died. On receipt of the information and the documents regarding his death, the case was abated against Rabiram Kalita.

6. During trial charge was framed against the accused/appellant and co-accused Upen Kalita and Rabiram Kalita under Section 302/34 of IPC and other co-accused Tagarbala Kalita, Beauti Kalita, Bivamoni Kalita and Junmoni Kalita was framed under Section 323 of IPC, which was read over and explained to them to which they pleaded not guilty and claimed to be tried.

7. To substantiate the case, 10(ten) witnesses were examined by the trial Court. After closure of the evidence, the statement of the accused/appellant and other co-accused were recorded under Section 313 of Cr.P.C. wherein, incriminating material found in the evidence of the witnesses were put to them to which they denied the same. According to them, they have been falsely implicated in the case. On the other hand, the accused persons did not adduce any evidence in support of their case.

8. After hearing the arguments advanced by the learned counsel for the parties, the trial Court convicted the accused/appellant and the co-accused Upen Kalita as aforesaid. The other co-accused persons were acquitted by the trial Court.

9. Though, none has appeared to make the submission regarding the appeal preferred by the appellant, however, in the grounds of appeal, it is mentioned that the ingredients of Section 304 Part-II of IPC or any other Section has not been established in the instant case. The learned Session Court has committed manifest error in convicting the appellant under Section 304 Part-II of IPC.

10. It was also alleged that the prosecution has failed to prove as to how the injury was caused to the deceased and who had inflicted the injuries. The prosecution also failed to explain what weapons were used as because no any weapon of offence was seized in connection with the case, as such, the impugned judgment is liable to be set aside.

11. The learned counsel for the appellant has mentioned in the memo of appeal that the learned Sessions judge while convicting the appellant relied mainly on the evidence of PW-1, PW-4, PW-5 and PW-8, and they are closely related with the deceased, as such, the evidence of such witnesses did not inspire any confidence and are not trustworthy and are not corroborated with each other. Though, the learned trial Court opined that there are some con