JUDGMENT

Date : 15-02-2021 M.A. Ali, J.

Heard Mr. N.J. Das, learned Amicus Curiae in Crl. A. (J) 39/2019 and Dr. B.N. Gogoi, learned amicus curiae in Crl. A. (J) 40/2019 for the appellants and Mr. M. Phukan, learned Addl. P.P., Assam for the respondents State.

2. Both the jail appeal arose out of the judgment and order dated 10.12.2018 rendered by the learned Sessions Judge, Karbi Anglong in Sessions Case No. 48/2015. By the said judgment, the appellants were convicted under Section 302 IPC R/W Section 34 IPC and each of them was sentenced to rigorous imprisonment for life and fine of Rs. 2000/-, in default, to simple imprisonment for three months.

3. The case of the prosecution in brief was that on 16.06.2014, Debaru Juria (since deceased) went to pay visit to the house of Sanjib Topno along with Sri Bishal Porja, where the appellants Dipak Naik, Karia Juria and Babul Juria assaulted the deceased Debaru Juria and his friend Bishal Porja and thereby caused injuries to them. Initially both the injured persons went to Bokajan hospital for treatment, where from they were discharged after providing primary treatment and they came back home. However, on 29.03.2014, the health condition of Debaru Juria deteriorated and as such he was admitted in Bokajan Civil Hospital, where he succumbed to the injuries on the same day at about 10 AM. After the death of the deceased Debaru Juria, an FIR was lodged by his younger brother, on the basis of which, police registered Khatkhati P.S. Case No. 23/2014 under Section 302/34 IPC and eventually submitted charge sheet against the present appellants, upon completion of the investigation.

4. During trial, charges were framed against the appellants under Section 302 R/W Section 34 IPC, to which, both of them pleaded not guilty. In order to substantiate the charges, prosecution examined 8 witnesses including the doctor.

5. PW-4 is the doctor, who conducted the autopsy found the following injuries – “multiple bruises seen on the left face and neck.” “Flail chest of the right side below right nipple region” and “multiple fractures on 7, 8 and 9 ribs on both the sides.” In the opinion of the doctor, the death was due to shock following fracture of ribs and lung hemorrhage. The finding of the autopsy doctor has not been put to challenge during cross examination.

6. PW-1, who was an eye witness to the occurrence testified that when the PW-3, Bishal Porja and deceased Debaru Juria were taking tea in his house at about 7.30 O’clock in the evening, Karia Juria (appellant), Dipak Naik (appellant) and one Babul Juria entered into his house and assaulted both Bishal Porja and the deceased Debaru Juria and consequently both of them sustained injuries. The police was informed, who send both the injured to Bokajan CCI Hospital. He further stated that later on, Debaru Juria succumbed to the injuries.

7. PW-3 being an injured witness deposed that on the day of occurrence, he along with deceased Debaru Juria went to collect their wages due from a person of Karbi community and they stayed in the house of the sister of Debaru Juria as it was already dark. While they were in the house of the sister of Debaru Juria, both the appellants as well as Babul Porja came there and mounted assault on them with lathi and dao and thereby inflicted serious injuries to both of them. Immediately after the occurrence, a police patrolling party arrived there and took both of them to Bokajan Hospital. He further stated that after staying one night in the Bokajan hospital, he and the deceased Debaru Juria returned to their respective homes. He further stated that after three days of the occurrence, the deceased again fell ill and he was admitted in the Bokajan Civil Hospital, where he died because of the injuries. Though, both these eye witnesses were subjected to cross examination, nothing material, capable of creating any dent to their testimony, could be elicited, and as such, the evidence of these two vital witnesses, one being the injured r