Pradip Hazarika vs State Of Assam And Anr

Heard Mr. L Gogoi, learned Amicus Curiae, appearing for the appellant and Ms. B Bhuyan, learned Additional Public Prosecutor, Assam.

This jail appeal is directed against the judgment and order dated 20.07.2017 passed by the learned Sessions Judge, Nagaon in Sessions (T1) Case

No.484(N)/2013. By the said judgment, learned Sessions Judge convicted the appellant under Section 302 IPC and sentenced him to imprisonment for

life and a fine of Rs.5,000/- with default stipulation.

As per prosecution case, on 01.07.2013 at about 7.00 am., while the victim Jayanta Das was going to shop, the appellant Pradip Hazarika assaulted

him with a rod causing injuries, to which he succumbed immediately. An FIR was lodged by the Pw-1 Prashanta Das, on the basis of which police

registered Kampur PS Case No.143/2013 under section 302 IPC and on conclusion of investigation submitted charge-sheet against the

accused/appellant under section 302 IPC.

In course of trial charge was framed against the appellant under section 302 IPC, to which the appellant pleaded not guilty. The prosecution

examined as many as 8 (eight) witnesses to bring home the charge and on appreciation of evidence, learned trial Court convicted the appellant under

section 302 IPC and awarded sentence as indicated above.

On our careful perusal and assessment of the evidence, we find that the learned Sessions Judge convicted the appellant primarily relying on the oral

testimony of Pw-1 & Pw-7, being the brother and mother of the deceased, respectively, who claimed to be eye witness of the occurrence. Other oral

witnesses viz Pw-2, Pw-3, Pw-4 & Pw-5 examined by the prosecution did not see the occurrence, as they arrived at the place of occurrence later.

Pw-1 stated in his evidence, that in the morning the victim asked for Rs.5/- from his mother for purchasing ‘Bhang’ (canabies). Though his

mother was insisting him to take tea, he was not interested to take tea. The victim took Rs.5/-from his mother and went out of the house. Pw-1 further

deposed, that after the victim left the house having taken Rs.5/- from his mother, he took tea, and thereafter came out and was watching the victim.

He noticed that when the victim reached in front of the house of the accused Pradip Hazarika, which was at a distance of about 100 meters from the

informant’s house, Pradip Hazarika came out and dealt two blows with an iron rod on the head of the victim and consequently he fell down.

Seeing the occurrence he raised hue and cry, hearing which, the neighbouring people assembled at the place of occurrence. according to Pw-1, the

victim died at the spot. During cross-examination Pw-1 stated, that he did not state before police about the occurrence in the same manner as deposed

before the Court. It was also elicited during the cross-examination of the Pw-1, that there were as many as 8 families on the two sides of the road,

near the place of occurrence and all those people came to the place of occurrence hearing alarm raised by him.

Pw-7 was the mother of the victim. According to her, on the relevant morning, as soon as she got up from sleep, the victim asked for Rs.5/- from

her and after paying Rs.5/- to the victim she entered into the kitchen. The moment she entered the kitchen, she heard hue and cry that Jayanta Das

had been assaulted by the accused Pradip Hazarika. Immediately she came out and noticed, that Jayanta Das (victim) was lying dead in front of the

gate of the accused Pradip Hazarika. She also stated to have seen the accused running away from the place of occurrence with an iron rod in his

hand. During cross-examination this witness stated, that on her arrival at the place of occurrence she found about one thousand people assembled at

the place of occurrence.

Pw-2, Pw-3 & Pw-5 deposed that hearing hue and cry immediately they came out and found the body of the victim lying in the courtyard of the

informant, Pw-4 came to know about the occurrence over phone.

A dispassionate scrutiny of the oral testimony of Pw-1 and Pw-7 would show that according to Pw-1 when the victim asked for Rs.5/-, Pw-7

insisted him to take tea first, but he was not willing to take tea and immediately after taking Rs.5/- from his mother (Pw-7) he left the house. The Pw-

1 after having tea, came out of the house and noticed the occurrence standing on the road. According to Pw-7, as soon as she entered into the

kitchen, she heard hue and cry and came out of the house and noticed Jayanta Das lying dead in front of the house of the accused Pradip Hazarika.

What is also apparent from her evidence is that about thousand people assembled at the place of occurrence, before she came out of the house. If

that be so, testimony of the Pw-7 that she had seen the accused running away from the place of occurrence is hardly worthy of inspiring confidence,

inasmuch as she came out of the house much later.

According to Pw-1 the occurrence took place in front of the house of the accused which is at a distance of 100 meters from the house of the

victim. The sketch map exhibit-6, also shows, that there is considerable distance between the house of the accused and the victim. The Pw-2, Pw-3 &

Pw-5 deposed that they immediately came out, upon hearing the alarm raised by Pw-1, and found the victim lying in the courtyard of the informant.

We find no reason to disbelieve the Pw-2, Pw-3 & Pw-5, who were evidently neighbours and came out immediately upon hearing the alarm raised by

Pw-1 and saw the body of the victim at the courtyard of the informant. If the evidence of Pw-2, Pw-3 & Pw-5, all of whom were independent

witnesses, is believed, then, occurrence could not have taken place, in front of the house of the accused as deposed by Pw-1 and Pw-7. There is also

no material on record to show as to how the body of the victim came to the courtyard of Pw-1, when according to Pw-1 & Pw-7 the occurrence had

taken place in front of the house of the accused which is at a distance of 100 meters from the place where the body of the victim was found lying.

The medical evidence of Pw-6 transpires that basically a single injury was caused by blunt object over the left side, upper part of the neck, near

the left ear lobe and as such, the medical evidence with regard to injury also does not support the oral testimony of Pw-1 that two blows were given

by rod on the head of the victim from the backside.

We also noticed the conduct of Pw-1, who has deposed that after having taken tea, he came out and was witnessing the occurrence by standing

on the road. When his brother was being assaulted by the deadly weapon like iron rod, in all probabilities of normal human nature, the Pw-1 ought to

have rushed to the place of occurrence to save his brother. But surprisingly he remained standing on the road in front of his house. When admittedly

the Pw-1 did not go to the place of occurrence, which was at a distance of 100 meters, the vital circumstance remained unexplained, as to how the

body of the victim reached his courtyard within a minute or so, inasmuch as the neighbouring people who, came out hearing alarm raised by him, found

the body of the victim in his courtyard. This circumstances coupled with the conduct of Pw-1 raises a serious doubt about the genesis of the

occurrence and the involvement of the accused in the instant case, as well as, the credential of the Pw-1 and Pw-7 being the star witness of the case,

and as such, we find it difficult to persuade ourselves to rely on the testimony of the Pw-1 and Pw-7. Thus non reliability of the testimony of Pw-1 &

Pw-7, inconsistency between medical evidence and the oral testimony, absence of any explanation or any materials to show as to how the body

reached the courtyard of the informant immediately within a minute or so, of the occurrence, which took place admittedly at a distance of 100 meters,

raises serious doubt as to the involvement of the accused in the instant case and also the genesis of the occurrence.

In view of the above facts and circumstances, we are of the considered opinion that the prosecution evidence falls short of proving the charge

against the accused/appellant beyond the reasonable doubt and as such, the accused/appellant, at least, ought to have been given the benefit of doubt.

Being of the above view, we are constrained to hold that the impugned judgment of conviction and sentence of the appellant is not sustainable.

Accordingly, we set aside the conviction and sentence of the accused/appellant and allow the appeal.

The appellant be released forthwith if not required in any other case. So far the compensation granted by the learned Sessions Judge under section

357-A Cr.P.C., we do not interfere with that part of the judgment.

Appreciating the assistance rendered by Mr. L Gogoi, learned Amicus Curiae, we hereby provide that he will be entitled to professional fees of

Rs.7500/-. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Mr. Gogoi.

Send down the LCR along with a copy of this judgment.