Crl.A. 80/2004 BEFORE THE HON’BLE MRS JUSTICE ANIMA HAZARIKA Heard Mr P. Bora, leaned counsel appearing for the appellant. Also heard Mr K. M unir, learned Additional Public Prosecutor, Assam, for the respondent State. 2. This appeal is directed against the judgment and order dated 23.02.2004 passed by the learned Sessions Judge, Sivasagar in Sessions Case No. 161 (S-S)/2 001 convicting the appellant under section 304 part -II of the Indian Penal Code (IPC for short) sentencing him to undergo Rigorous Imprisonment (RI for short) for 3 (three) years with a fine of Rs.6000/- in default, further R.I. for 3 (th ree) months. 3. Brief facts, which led to the trial of the accused are as follows: On 05.03.2001 at about 7-30 P.M. a birthday function was celebrated in t he house of Milanta Gogoi and Jayanta Gogoi both are brothers and the said funct ion was also attended by the accused appellant and the deceased. In the function , an altercation took place in between them and on being separated the accused appellant left the venue with warning to the deceased. After reaching house, th e accused appellant picked up a lathi and followed the deceased and assaulted hi m on the road. The deceased was taken to the hospital, where he succumbed to his injuries. 4. The FIR was lodged by Sri Lubiram Gogoi, father of the deceased and the same was registered as Geleky Police Station Case No. 14/2001 under section 341/ 325 IPC. Subsequently section 302 IPC was added on 11.03.2001. During the course of investigation, the police seized the lathi from t he field at the instance of the accused appellant and after completion of the in vestigation, police submitted charge sheet against the accused appellant on 31.0 7.2001 under section 341/302 IPC. 5. Since offence was exclusively triable by the court of Sessions, the case was committed to the court of learned Sessions Judge, Sivasagar by the Judicial Magistrate 1st Class, Sivasagar. The accused appellant appeared before the Sess ions Judge and on his appearance, the learned Sessions Judge framed formal char ge under section 302 IPC against the appellant. The charge so framed was read ov er and explained to the accused appellant to which he pleaded not guilty and cla imed to be tried. 6. During the trial, the prosecution examined as many as 15 witnesses but t he defence adduced none. PW 1 Diganta Gogoi is the nephew of the accused appellant. PW 2 Jayanta Gogoi and PW 3 Lubiram Gogoi are the cousin and father of the deceased respectiv ely. PW 4 Sonaram Gogoi is the VDP Secretary, PW 5, Milanta Gogoi and PW 6, Dha niram Gogoi are counsin of the accused appellant. PW 7 Mitali Gogoi is the wife of the deceased, PW 8 Putul Gogoi is another cousin of the accused appellant, PW 9 Hari Prasad Baruah is a teacher, PW 10 is the doctor Dr Rituraj Chaliah, who performed post mortem examination on the body of the deceased. PW 11 Sri Nilu Ch aliha is the uncle of the accused appellant and the deceased. PW 12 Smti Bharati Gogoi is the sister-in-law of the deceased and PWs 13, 14, and 15 are the Inves tigating Officers who have investigated the case. 7. The learned Sessions Judge after completion of the prosecution witness es recorded the statements of the accused appellant under section 313 CrPC where in the accused denied his involvement in the alleged offence. On completion of t he trial and after hearing the parties, the learned trial court by judgment and order dated 23.02.2004 convicted and sentenced the accused appellant as aforesai d, hence, the instant appeal. 8. Upon perusal of the impugned judgment and order it would reveal that the conviction was passed basing on the following circumstances: (i) Quarrel and warning. (ii) Chasing the deceased with weapon by the accused. (iii) Absconding of the accused. (iv) Recovery of the weapon. (v) Dying declaration and (vi) Counter story of the false implication of the accused appellant. 9. In view of the above, let us now discuss the evidence adduced by the pro secution to bring home the charge framed against the accused appellant. 10. PW 1 is the nephew of the accused appellant as well as the deceased. He has stated that on the day of occurrence a birthday function was being held at the residence of his uncle Jayanta Gogoi. In the function, the entire clan had a ssembled including the family members of the accused and the deceased. The incid ent took place at about 7-30 P.M. near a Namghar. He returned home at 12 noon. H is uncle Jayanta Gogoi came to their house and reported that a ’Marpit had take n place in between the accused and the deceased. He was told that that the accus ed left his house by giving a warning to the deceased. PW 1 got the information at about 6 P.M. After about half an hour the wife of the accused also came to th eir house in search of her husband. She told that her husband i.e. accused had l eft home with lathi and spear to teach a lesson to the deceased. When the wife o f the accused was returning home PW 1 accompanied her to some distance. On the w ay they noticed that the deceased was lying in an injured condition by the sid e of a road near the village Namghar. On being enquired the deceased told that h e was assaulted by the accused. Soon thereafter, the injured became voiceless. H e returned home and reported the incident to his parents. His father and other f amily members went to the place of occurrence and shifted the injured to Assam M edical College Hospital, Dibrugarh where he succumbed to his injuries. He further deposed that he cannot say what the cause of quarrel and ’marpit’ was . During cross examination, PW 1 has stated that on the next morning of the incide nt police came for investigation and recorded his statement but he has forgotten to state before the Investigating Officer that the deceased has told him that h e was assaulted by the accused. Except the family members, he did not disclose about the dying declaration to any other person including the VDP personnel. He has also stated that he did not say before the police about the quarrel and m arpit took place between the accused and the deceased and that the wife of the a ccused came to their house and reported him that her husband (accused) has left home with spear and lathi to assault the deceased. He has denied the suggestions put to him that he has developed the story while deposing before the Court. He has further stated before the I.O. that seeing the deceased in injured condition he suspected that the deceased might have been assaulted by the accused. 11. PW 2 Sri Jayanta Gogoi is related to both the deceased as well as the ac cused. Both of them are his cousins.He has also deposed in the same tune as that of PW 1. During cross examination, he has stated that most of the villagers had attended the birthday function which was held at the house of Sri Milanta Gogoi, the brot her-in-law of the deceased Kania Gogoi was also present in the function. He has further stated that he can not say if initially the altercation was in between R ajen and Kania regarding cattle and subsequently the accused intervened to separ ate them. He has also stated that he did not state before the I.O. that PW 1 tol d him that deceased had disclosed the name of the accused as the assailant. He f urther stated that he did not mention the name of PW 1 in his statement recorded by the I.O. Other suggestions put to him have been denied. 12. PW 3 Lubiram Gogoi is the father of the deceased. Accused is his n ephew. He has stated that at about 7-30 P.M., on the day of occurrence, the wife of the accused came to his house and informed that her husband i.e. accused had gone out carrying a spear and a lathi. They all went out in search of the accus ed as he had gone to assault the deceased. They found the deceased lying on the road near the Namghar in an injured condition. He saw one perforated wound on th e ear and bleeding from the mouth. Seeing this he became unconscious. Someone br ought him home. The injured was not in a position to speak as his mouth was full of blood. Next day, the deceased died in the Assam Medical College Hospital, Di brugarh. During cross examination, he has stated that he has no personal knowledg e as to who assaulted the deceased. Other suggestions put to him have been deni ed. 13. PW 4 Sri Sonaram Gogoi is the VDP Secretary. His house was abou t 1 Km from the house of the deceased. He has stated that on the day of occurren ce PW 1 came to his house at about 8 P.M. and reported that there was a ’marp it’ in between the deceased and the accused where the accused has assaulted the deceased. While he was going to the place of occurrence he found that the deceas ed was being taken to the hospital in an autorickshaw and in the next day he die d at Assam Medical College Hospital, Dibrugarh. He had written the FIR on reques t made by the father of the deceased. Ext 1 is the FIR and Ext 1(1) is his signa ture as scribe. Police seized one plastic bag at the place of occurrence vide Ex t. 2 wherein he put his signature which is Ext. 2(1). Mat. Ext. 1 and 2 are the seized articles. During cross examination, he has stated that FIR was written by him at the instance of PW 1 Diganta Gogoi. The entire story was narrated to him by the PW 1 and the same story has been written in the FIR. PW 4 knew nothing ab out the incident. 14. PW 5 Sri Milanta Gogoi is the younger brother of the accused. De ceased was the son of his paternal uncle. On the day of occurrence he had arrang ed the birthday function of his son. Both the accused and the deceased have atte nded the function. He has stated that an altercation took place at about 3-00 P. M. between the accused and the deceased. However, the invitees separated them. T hereafter, the accused felt ashamed and left the place with a warning to the dec eased but the deceased stayed back and took the evening meal also in his house. The deceased left his house at about 7-30 P.M. on his bicycle. Within 15 minutes the wife of the accused came to his house and reported that her husband has lef t the house with a lathi by saying that he will beat the deceased. After sometim e, he had heard the shouting of PW 1 that the deceased was assaulted and he wa s lying injured near the Namghar. He immediately went to the place of occurrence and saw that the deceased was lying down with injuries. Later on, the injured w as shifted to the hospital where he died in the next morning. During cross examination, PW 5 has stated that more than hundred people had attended the birthday function in his house. One Kania Gogoi was also presen t there. However, he cannot say if there was any dispute between Kania and the d eceased regarding a bullock. PW 5 has also stated that accused was the only son of his parents. He has further denied suggestion put to him to the effect that t he accused has been falsely implicated in this case so that they can grab his la nded property. Other suggestions put to him have been denied. 15. PW 6 Sri Dhaniram Gogoi is the cousin of the deceased as well as the accused. He has not said anything new. What have already been stated by the other PWs, PW 6 has also stated in the same tune. 16. PW 7 Smti Mitali Gogoi is the wife of the deceased. She has sta ted that at about 6 P.M. on the day of occurrence Milanta Gogoi (PW 5) came to h er house and reported that her husband was killed by the accused. Then she and h er related sister Bharati went to the place of occurrence and saw her husband ly ing in injured condition on the road near the Namghar. At that time her husband could not speak. She took her husband to Geleki hospital, Sivasagar Civil hospit al and finally to Assam Medical College Hospital, Dibrugarh, where he died in th e next day morning and later, she came to know that the accused had a quarrel w ith her husband and thereafter, the accused assaulted her husband with a bamboo lathi. During cross examination, she has stated that the house of the accused i s very close to her house. However, she denied the suggestions put to her that s he did not say before the Investigating Officer that the accused had a quarrel w ith her husband and later her husband was assaulted by the accused with a lathi. 17. PW 8 Sri Putul Chetia is the uncle of the accused as well the de ceased. He has stated that he has no knowledge as to how the incident took place . He has further stated that after 4/5 days of the incident police came for inve stigation and seized one lathi and obtained his signature in the seizure memo. E xt. 3 is the seizure memo and Ext. 3(1) is his signature thereon. He has furthe r stated that he cannot say wherefrom the said lathi was seized by the police. There was no cross-examination of the PW 8, as the prosecution d eclined to cross examine him. 18. PW 9 Sri Hari Prasad Baruah is from the nearby village and as such he k new the accused as well the deceased. He has stated that police seized one lathi from paddy field near Daikhana Sunali Sangha. Mat Ext. 3 is the lathi and Ext . 3(2) is his signature in the seizure list. He saw the accused along with the P olice Officer. During cross examination, he has stated that he met the police officers on the road and that the lathi was not brought from the paddy field in his prese nce. The accused was sitting inside the police vehicle. He has further stated th at he has no personal knowledge as to how the deceased was killed. 19. PW 10 Dr Rituraj Chaliha had performed the post mortem examinati on on the dead body of the deceased on 07.03.2001. During the post mortem examination, he had found the following injuries : (I) One abrasion over the mandible on the right side- measuring 2 cms. x 1 cm. (II) One stitch wound around the right ear which had 13 stitches. He has also found fissure fracture over the right temporal bone which was extend ed to the left parietal bone. The depressed fracture was present over the right temporal bone. In the opinion of the doctor, the death of the person was due to coma as a result of the injuries sustained by him. The injuries were antemortem and hom icidal in nature being caused by blunt forced impact. In his opinion, the exter nal wounds found on the deadbody could be caused by a weapon like lathi. Ext. 4 is the postmortem examination report and Ext. 4(1) is his signatu re thereon. During the cross examination, PW 10 has stated that the abrasion found on the ma ndible indicates that there was a scuffle in between the deceased and the assail ant. He has further stated that he has noticed only one assault wound on the rig ht temporal region. 20. The deceased was the nephew of PW 11 Sri Nilo Chetia. His deposi tion being not relevant has not been discussed. 21. PW 12 Smt Bharati Gogoi is the sister-in-law of the deceased. Sh e has stated that on the day of occurrence she was on courtesy visit to the hou se of the deceased. At about 9-00 P.M. one boy came and reported that the decea sed was assaulted by someone near a Namghar. Hearing this, herself and Mitali we nt to the place of occurrence and saw the deceased lying there in an injured con dition. Blood was oozing out from the head. The injured was not in a condition t o speak. Subsequently, nearby people shifted the deceased to the hospital. He di ed in the hospital after about 7 days. However, she did not visit the hospital. During the cross examination she has stated that except two boys no other person s had reached the place of occurrence. When she went there she also did not enqu ire from those boys as to how the incident took place and who assaulted the inju red. 22. PW 13 Sri Nripen Khound is the Investigating Officer. During in vestigation he visited the place of occurrence and recorded the statements of wi tnesses Jayanta Gogoi, Hemanta Gogoi, Rita Gogoi, Diganta Gogoi, Dhaniram Gogoi, Nogen Gogoi and Punaram Gogoi. He prepared a sketch map of the place of occurre nce vide Ext. 6. Ext. 6(1) is his signature. He had seized one bicycle and a pl astic bag vide Ext. 2. Ext 2(2) is his signature on the seizure list. Mat. Ext. 1 is the seized bicycle and Mat. Ext. 2 is the seized bag. He went in search of the accused, but did not find him as he was absconding. During cross examination he had stated that PW 3,the father of the deceased did not say before him that he had gone in search of accused Cheniram and that the wife of Cheniram had come to their house and reported that her husband had gone after the deceased with a spear and lathi. During investigation, he had found that the occurrence took place during a birth day celebration party in the house of Jayanta Gogoi and there was an altercatio n between theaccused and the deceased and also in between the deceased and one K ania. Witness Dhaniram Gogoi (PW 6) did not say before him that the deceased wen t to his house at 6-00 P.M. and reported about his quarrel with the accused. Thi s witness also did not say before the I.O. that the wife of the accused had gone to his house in search of her husband. He has further stated that he has gone t o the house of the accused only once. 23. PW 14 Sri Inaram Ahmed is the Officer-in-Charge of Galeky Polic e Station. He has stated that after receipt of the FIR he has entrusted the case to the A.S.I. Sri Nripen Khound for investigation. After preliminary investigat ion, the I.O. handed over the C.D. to him on 07.03.2001 and accordingly, further investigation was done by him. He has recorded the statement of Smti Mitali Gogoi, wife of the deceased. She told him that her husband died on that day. Then he made a pr ayer to the C.J.M. to add section 302 IPC also. He had made arrangement for hold ing inquest on the dead body. He went in search of the accused but he was found absconding on 10.03,2001. The accused surrendered before him. Then he was interr ogated. The accused stated before him that he will be able to produce the weapon used in the assault. Accordingly, he accompanied the accused with the police pa rty and went to No. 1 Lahargaon. After reaching the place, the accused led him t o a field and on being pointed out by the accused one 5 feet long wooden lathi w as seized from the field in presence of witnesses. Ext. 3 is the seized lathi an d Ext. 3(3) is his signature. After completion of investigation and after collec ting the Post-mortem report, he submitted the charge sheet against the accused C heniram Gogoi on 31.07.2001 under section 341/302 IPC. While confronting the statement made by PW 5 it was stated that PW 5 did not sta te before himthat the wife of the accused came to his house in search of her hus band and also told that her husband left home with a lathi telling that he would beat the deceased. He has further stated that the wife of the accused (PW 7) di d not state before him that the accused had a quarrel with her husband and later on assaulted her husband with a lathi. PW 14 has also subsequently stated that he did not record the statement of Sri Nilu Chetia. 24) PW 15 Kharpeswar Bora is another police officer who held inquest on the dead body of the deceased in the Assam Medical College Hospital, Dibruga rh in presence of witnesses. Ext. 5 is the inquest report and Ext. 5(2) is his s ignature. He had recorded the statements of Nilo Chetia and Prasanta Gogoi. Aft er collecting the Inquest report and Postmortem report, he forwarded it to Galek y Police Station. During cross examination, he has stated that except one bandaged wound on the he ad he did not find any other wound on the dead body. Witness Sri Nilo Chetia (PW 11) did not say before him that the mother of the deceased told him that the d eceased was assaulted by the accused. 25) After completion of the prosecution witnesses learned trial court record ed the statement of the accused under section 313 CrPC wherein the accused has d enied his involvement in the occurrence and he has categorically stated that on the day of occurrence he had no altercation with the deceased. In fact, an alter cation took place between the deceased and one Kania Gogoi regarding cattle. He had only separated them. 26) Mr Bora, learned counsel appearing for the accused/appellant has submitted that the conviction was based only on circumstantial evidence. The tr ial court while convicting the accused appellant relied upon the following circu mstances, namely: - (a) Quarrel and warning (b) Warning the deceased by the accused. (c) Chasing the deceased with weapon. (d) Absconding of the accused. (e) Recovery of the weapon. (f) Dying declaration. (g) Absence of any proved counter story of false implication. The learned trial court on appreciation of evidence held that out of the aforesaid circumstances, the prosecution has been able to establish the circums tances; - (a), (b), (c), (d) and (g) against the appellant and accordingly convi cted and sentenced him as aforesaid. However, he has discarded the circumstances Nos. (e) and (f). 27. Mr Bora, learned counsel appearing on behalf of the appellant as sailed the judgment of the trial court inter- alia contending that- (i) Though PW Nos. 1, 2 and 5 have said about the quarrel taking place betwe en the deceased and the accused on the day of occurrence but at the same breath, PW 2 and PW 5 have also stated that one Sri Kania Gogoi was also present there. The PW 2 in his cross examination has stated that brother-in-law of the decease d Kania Gogoi was also present in the function. However, he cannot say if initia lly the altercation took place in between the deceased and Kania regarding cattl e and subsequently, the accused intervened and separated them. PW 5 has also sta ted during cross examination that one Kania was also present in the function. Ho wever, he cannot say if there was any dispute between Kania and the deceased reg arding