MANOJ DAS vs THE STATE OF ASSAM

This appeal is directed against the judgment and order dated 27.08.2008 passed by the learned Additional Sessions Judge, FTC No. 2,

Kamrup, in Sessions Case No. 362(K)/2005. By the said judgment, learned Addl. Sessions Judge convicted the accused appellant under Section

307 IPC and sentenced him to rigorous imprisonment for two years and fine of Rs. 1,000/- with default stipulation.

Prosecution case, as reflected in the FIR was that the appellant along with another unknown person and his elder sister conspired to kill the

husband of the informant, Sri Tarini Charan Das. On 19.05.2003 at about 9.10 Am, when the husband of the informant, Tarini Charan Das was

making a phone call in a PCO located at Bharat Complex, Maligaon Chariali, the accused appellant Manoj Das accompanied with another person

came there and kicked him from backside, consequently he fell down on the ground. Thereafter the accused appellant, Manoj Das stabbed him on

various part of his body with the intention to kill him and after causing injuries, the accused/ appellant left the place. Immediately after the

occurrence, the Officer-in-charge of Jalukbari Police Station brought him to Railway hospital for treatment. An FIR was lodged by PW-2, the wife

of the injured, on the basis of which, police registered a case and after usual investigation, submitted charge sheet against the accused/appellant

under Section 324/307 IPC.

The offence under Section 307 IPC being exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of

Sessions.

In course of trial, charges under Section 324/307 IPC were framed against the accused/appellant, to which he pleaded not guilty. Six witnesses

were examined by the prosecution to establish the charge and on completion of the prosecution evidence, the accused was examined under

Section 313 CrPC, wherein he pleaded innocence and examined two witnesses in support of his defence. On appreciation of evidence, learned

Trial Court convicted the appellant under Section 307 IPC and awarded sentence as indicated above.

Aggrieved by conviction and sentence, the accused/appellant, has preferred the instant appeal.

Learned counsel Mr. Z. Kamar, assisted by Mr. B.M. Choudhury, learned counsel advanced argument on behalf of the appellant and the State

was represented by the learned Addl. P.P. Ms. S. Jahan.

I have considered the submissions made by the learned counsel for the parties and also the evidence and materials brought on record.

There was no eye witness except the injured himself and learned Trial Court essentially relying on the sole testimony of the alleged injured (PW-

4) and the medical evidence, recorded the conviction under Section 307 IPC.

The first point urged by the learned counsel for the appellant was that on the facts of the case, no conviction under Section 307 IPC was

warranted. Further contention of the learned counsel was that the oral testimony of the sole witness, was totally unreliable and on that count also,

the conviction and sentence of the accused appellant deserves to be interfered.

Before adverting to the first submission of the learned counsel as to whether the conviction under Section 307 IPC was warranted, it is

desirable to scrutinize the evidence brought on record.

PW-4 , the alleged injured deposed that on 09.05.2003, at about 9 to 9.15, he went to a PCO at Maligaon to make a phone call. At that

time, PW-3, the employee, who was working in the PCO, was in the toilet. While he was making a call over the phone, the appellant kicked him

on his neck from backside and consequently he fell down and thereafter the accused stabbed him on his head. The second and third blows given

by the knife/dagger fell on his right and left hand respectively, while he tried to ward off the attack and ultimately the accused stabbed on his chest.

When the accused stabbed him on the chest, the PW-3 arrived there. During cross examination, it was elicited that the elder sister of the accused

was earlier working in his shop. He also stated that he was an employee in the Railway Department and his office hour was from 9.30 AM. It was

further elicited during cross that the accused Manoj Das was his nephew.

PW-3, Roji Begum stated that hearing scream of the PW-4, she came out from the toilet and found PW-4 lying on the floor with injury. She

also stated to have noticed a boy running away, but she could not recognise the boy. It was elicited during cross examination, that the injured PW-

4 was the owner of the PCO. She also categorically stated that she had not seen as to who inflicted the injury. She further admitted to have stated

before police that the accused Manoj Das very often picked up quarrel with the PW-4. She further stated in cross examination, that the

relationship between PW-4 and the accused appellant was strained because of engaging her (PW-3) in the PCO in place of elder sister of the

appellant.

PW-5, a shop keeper in the same complex, stated that PW-4 came to his shop and showing an injury on his head told, that the accused

Manoj Das inflicted the injury. Again during cross examination, he stated that he did not notice the injury on the person of PW-4. According to

him, other shops in the complex, more particularly, the four shops infront of the PCO (place of occurrence) were also opened at that time.

According to him, his shop was at a distance of about 150 feet from the place of occurrence.

PW-2, the informant is the wife of the PW-4. According to her, PW-4 told her that Manoj Das hit on his head with a stone and on the next

morning, she lodged the FIR.

What is evident from the oral testimony of the above prosecution witnesses is that PW- 2, PW-3 and PW-5 did not see the occurrence. Thus,

PW-4 remained the sole eye witness in the instant case, PW-1 and PW-6 are doctor and investigating officer respectively.

PW-1, the doctor who examined the injured found the following injuries.

i) cut injury over chest over lower part of steranum.

ii) Cut injury size 1 cm in scalp.

iii) Cut injury size 1.5 cm I right hand in 2nd web space.

iv) Cut injury size 1 cm in left elbow.

Wounds are fresh with oozing of fresh blood. Wounds appears to be made by a sharp weapon, wounds appears simple, wounds repaired.

According to the doctor, all the injuries were simple in nature and caused by sharp weapon. It was also stated by doctor that all those injuries

could be caused by falling on sharp object.

A dispassionate scrutiny of the testimony of PW-4 shows that his evidence in court, is quite contradictory to what had been mentioned in the

FIR. Although, it was stated in the FIR that three persons were involved in commission of the crime and the accused along with another man

kicked him from backside, while deposing in court, he had given a total gobye to the allegation made in the FIR with regard to involvement of the

other two persons. The PW-4 categorically stated that the accused inflicted two stab injuries, one on head and other one on the chest and the rest

two blows were resisted by him resulting in superficial injury on right and left hand. The evidence of PW-4 with regard to the stab injuries on his

chest and head does not appear to be supported by medical evidence, being the injury report (Ext.1) as well as evidence of doctor, as no stab

injury was detected by the doctor. The oral testimony of PW- 2, the wife of PW-4, that her husband told her regarding the accused hitting on his

head with stone and the evidence of PW-5, whom the PW-4 reported immediately after the occurrence showing only one injury on his head, also

cast doubt on the veracity of the testimony of PW-4 as regards the accused appellant causing stab injuries on his chest and head. Admittedly, four

shops infront of the PCO, where the occurrence took place were opened at the time of the occurrence and according to PW-3, the PW-4 raised

alarm. But surprisingly no one came forward, nor any of the shop keeper, who could have thrown light on the occurrence was examined as

witness.

From the defence evidence adduced through DW-1 and the attendance register proved as Ext.5 as well as Ext.A, it appears that PW-4

attended his office at 9 O''clock. However, DW-1 stated that he might have gone out after signing the attendance register. However, in the

remarks column of Ext.5, the injured had been shown as sick on the day of occurrence.

Admittedly, the injured was taken to hospital for treatment on the same day. However, from the medical certificate, Ext.1 and the testimony of

the PW-1, doctor it transpires that Ext.1 does not relate to examination of the PW-4 on 19.05.2003, the day of occurrence. The doctor has stated

in unambiguous term, that he examined the injured on 20.10.2003 and found the injuries as indicated above. Ext.1 transpires that the injury report

was issued on 21/10/2003. It is also apparent from the injury report that except description of the injuries, nothing was mentioned therein, with

regard to the name of the injured and other particulars. Admittedly the occurrence took place on 19.05.2003 and immediately he was taken to

Railway hospital for treatment, whereas, medical evidence and the injury report brought on record transpires that the injured was examined on

20.10.2003 i.e. after five months of the occurrence, meaning thereby the injury report proved does not relate to the injuries sustained in the

occurrence of the present case. Therefore, the medical evidence also appears to be extremely fishy, and no credibility can be attached to the

medical evidence of PW-1 as well as Ext.1.

A careful scrutiny of the entire evidence and materials brought on record demonstrates that three different stories have been put forward in the

instant case. As per allegation made in the FIR lodged by PW-2, in pursuance of a conspiracy hatched by the accused appellant, his elder sister

and another person (not named) to kill the PW-4, the accused accompanied with another person initially attacked the victim and the fatal blows

were given by the accused appellant causing four injuries including two stab injuries on the chest and head. As per evidence of the PW-4 in court

only the accused inflicted stab injuries by sharp weapon like knife/dagger. Thirdly, the story revealed from the testimony of PW-5 and PW-2, to

whom the PW-4 reported immediately after the occurrence was that accused hit the PW-4 on his head with stone and caused injury only on his

head. What can logically follow from the above inconsistency in the prosecution case is that either prosecution witness, more particularly, the PW-

4 was trying to conceal the true genesis of the occurrence or he had been lying.

Learned counsel for the accused appellant submitted that the FIR was lodged on the next day of the occurrence, after about a delay of 24

hours without any explanation for such delay. It was also contended that the GD Entry made on the day of occurrence had been withheld. Had the

GD Entry made immediately after the occurrence been produced, the real state of affair would have come to light. Learned counsel for the

appellant further contended that suppression of the GD Entry made on the day of occurrence and failure to explain the delay in lodging the FIR are

suspicious circumstances casting doubt on the prosecution case. Admittedly, immediately after the occurrence the injured went to the police station

and he was taken to hospital for treatment by police. When the victim admittedly went to the police station immediately after the occurrence and

informed about the incidence, whereupon he was taken to hospital by police, certainly there was a GD Entry with regard to the information given

to police at the first instance. Withholding of such GD Entry, by which the first information of the offence was given to police, certainly appears to

be a suspicious circumstance in the facts and circumstances of case and justifies an adverse inference against the prosecution under illustration (g)

of Section 114 of the Evidence Act.

The defence plea was that there was enmity between the parties because of the fact that the elder sister of the accused, who was earlier

working in the PCO of the injured was thrown out, and due to such enmity, a false case had been imposed. The defence plea is found to be

fortified by the testimony of PW-3, who had clearly admitted in her evidence, that because of engaging her (PW-3) in the PCO in place of the

sister of PW-4, relationship between PW-4 and the appellant was strained. It is settle principle that burden on the accused to prove the defence

plea is not that strict as in the case of prosecution to prove the guilt of the accused. Prosecution is required to prove the guilt of the accused, by

standard of beyond reasonable doubt, whereas, standard of proof required for proving a defence plea is only preponderance of probability.

Thus, the fishy medical evidence, contradictory oral testimony of PW-4 with regard to weapon used and the nature of injury sustained by him,

withholding of GD Entry made immediately after the occurrence and non-examination of any independent witness, when admittedly four shops

infront of the PCO were opened, are certainly suspicious circumstances casting doubt on the prosecution case. The oral testimony of the PW-2,

informant and PW-5 also raises a question as to the reliability and truthfulness of the PW-4, the lone eye witness of the case, rendering his

testimony unworthy of placing reliance. In view of all these facts and circumstances, the defence plea of imposing a false case cannot also be ruled

out and therefore, accused/appellant could not be convicted on the basis of such fragile evidence or at least the accused ought to have been given

the benefit of doubt.

Coming to the first submission of the learned counsel for the appellant, even if it is assumed for the sake of argument, that the injuries as

deposed by PW-1 were received by PW- 4, all the injuries were simple and superficial in nature. It is also evident that after causing those injuries,

the victim left the place. Whether on the above fact and circumstances of the case, could the accused be held liable for attempt to commit murder

under Section 307 IPC. It is settled position of law that in order to hold a person guilty under Section 307 IPC, prosecution has to prove beyond

reasonable doubt that the accused caused the injuries with the requisite intention and knowledge to cause death as contemplated in Section 300

IPC. No doubt, there cannot be direct evidence of intention or knowledge which may be required to be inferred or which may be discernible from

the facts and circumstances of the case, such as, nature of injury, part of the body selected for causing injury and other attending circumstances. In

the instant case, the injuries were evidently simple and superficial in nature. Admittedly, after causing those injuries, the accused left the place. Had

the perpetrator of the offence harboured the intention to cause death of PW 4, he would not have left the place after causing such superficial

injuries. Evidently, it was not the case of the prosecution that because of some external intervention the accused failed to cause death of the victim

or failed to cause such grievous injury as is likely to cause death. Therefore, from the nature of injury and the conduct of the accused, the intention

to cause death or the requisite intention or knowledge to cause such injury as is likely to cause death cannot be attributed to the accused. The real

test for ascertaining as to whether the act of the accused would attract Section 302 IPC is that, had the death been caused because of the act of

the accused, whether he would have been held liable for committing murder under Section 300 IPC? if the answer is in affirmative the perpetrator

of the offence will certainly be liable for an offence under Section 307 IPC. If the answer is in negative, then he cannot be held liable for offence

under Section 307 IPC. The evidence brought on record clearly demonstrated the absence of requisite intention and knowledge as contemplated

in Section 300 IPC. In absence of evidence with regard to intention and knowledge as contemplated under Section 300 IPC, the accused could

not be convicted under Section 307 IPC in the facts and circumstances of the present case.

Be that as it may, totality of the evidence and the facts and circumstances of the case as discussed hereinabove speaks loud and clear that the

prosecution has failed to prove of the guilt of the accused/appellant beyond reasonable doubt and therefore, appellant is entitled to be acquitted at

best on benefit of doubt.

For the reasons stated above, the conviction and sentence of the accused appellant cannot be sustained. Accordingly, the appeal is allowed

and the conviction and sentence is set aside. Bail bond stands discharged.

Send down the LCR.