Crl.A. 255/2003 BEFORE HON’BLE MR. JUSTICE C.R.SARMA JUDGMENT AND ORDER ( ORAL ) 1. This appeal is directed against the judgment and order dated 30.6.2010 p assed by the learned Sessions Judge, North Lakhimpur in Sessions Case No 1 ( NL) /07. 2. By the impugned judgment and order aforesaid, the learned Sessions Judge , North Lakhimpur convicted the accused person under Section 304 Part-II of the I.P.C. and sentenced him to suffer Rigorous Imprisonment ( for short, R.I ) fo r 5 ( five ) years and pay a fine of Rs. 5000/-, in default, to further R.I. f or 1 ( one ) year. 3. Being aggrieved by the said conviction and sentence, the appellant has c ome up with this appeal. 4. I have heard Mr. T.Islam, learned counsel for the appellant and Mr. B.B. Gogoi, learned Addl.P.P,Assam. 5. The prosecution case, as revealed at the trial, in brief, may be stated as follows:- On 5.8.92 , the deceased namely, Meme Payeng, the appellant Shri Jogeswar Morang , Shri Dasiram Payeng i.e P.W-2, his wife Smt. Anjuli , Shri Baneswar and Shri D ambarudhar Payeng ( P.W-4) were gossiping on the roof of a house . The appellan t told the deceased that he was an idiot. On being so insulted, the deceased ca me down the said roof and was waiting for the appellant, with a lathi of his h and. Subsequently, a quarrel had taken place between the accused and the decease d,however they were separated by the villagers. After about two hours ,the dece ased was again found waiting with a lathi. This time, the deceased, finding the appellant on the road , chased him towards the boat in the river. The accused person caught hold of the deceased and pressed his neck. Then Shri Dambaru Pay eng i.e. P.W-4 declared the deceased to be dead. Shri Narayan Payeng, who was th e Goan Burah of the village, on being informed by Shri Lilambar Mili about the i ncident, informed the police by lodging an FIR, which has been exhibited as Exhi bit -2. Upon receipt of the said FIR, the North Lakhimpur police station regi stered a case. being PS Case No. 543/92 U/S 302 IPC and conducted the inquest in respect of the dead body of the deceased . Autopsy was also done in respect of the dead body. After completion of the investigation, police submitted charge sheet against the appellant for the offence U/S 302 IPC and forwarded him to th e Court stand trial. 6. The learned Sessions Judge ,North Lakhimpur , framed charge U/S 302 IP C. The charge was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 7. The prosecution examined as many as 8 prosecution witnesses including th e Medical Officer, who conducted the Postmortem Examination and the Investigatin g Police Officer. The accused person was examined U/S 313 Cr.P.C. He denied the allegations , brought against him and declined to adduce any evidence. 8. Considering the materials available on record, the learned Sessions Jud ge found the accused guilty for the offence U/S 304 Part-II IPC and accordingly convicted and sentenced him as indicated above. 9. Being aggrieved by the aforesaid conviction and sentence, the appellant has come up with this appeal. 10. Mr. T.Islam, learned counsel, for the appellant , taking this Court thro ugh the evidence on record, has submitted that there is no substantive and relia ble evidence against the accused/ appellant and that the learned trial Judge c ommitted error by convicting the accused/appellant. On the other hand, Mr. B.B. Gogoi, learned Addl. P.P. supporting the impugned judgment and order aforesaid, has submitted that there are sufficient evidence on record , more particulary, t he evidence of P.W-2 and 4 suggesting the involvement of the appellant and as such, the learned Sessions Judge committed no error by recording conviction and sentence. 11. In order to appreciate the rival submissions, made by the learned Counse l appearing for the parties and to examine the correctness and legality of the impugned judgment and order, I am inclined to scan the evidence on record as fol lows:- 12. Mr. Naren Payeng, deposing as P.W-5, stated that he was the Goan Burah of the village and on 5.8.92, at about 3 P.M, he was informed by Shri Lilambar Mili about the occurrence and accordingly he informed the police. Ext. 2 is th e FIR and Ext. 2(1) is his signature. He stated that the dead body of the deceas ed Meme Payeng was found in the boat at 27 k.m. ferry ghat in village Dambukial . He also rushed to the place of occurrence and found the dead body. In the FI R , it has been mentioned that he was informed by Shri Dambaru Payeng P.W-4 and other villagers that the appellant Jogeswar Morang had killed the deceased. But this witness in his evidence given on oath, did not state that he was inf ormed by Dambaru Payeng that the deceased was killed by the appellant. In view o f the above, I find that P.W-5 himself failed to support the contention made in the said F.I.R. ( Exhiibit -2). 13 Shri Swarna Payeng ,deposing as P.W-1, stated that he heard about the d iscovery of the deceased in a boat. On being so informed, this witness rushed to the place of occurrence. According to this witness, he was informed by Shri Da shiram Payeng ( P.W-2), Dambarudhar-(P.W-4), Mahari Bharat Chandra Hazarika (P. W-6) that the deceased was killed by the accused/appellant Jogeswar Morang. He was a witness to the inquest made by the police .Ext. 1 is the inquest report an d Ext. 1(1) is his signature thereon. 14. Shri Dashi Ram Payeng , deposing as P.W-2, stated that on 5.8.92, about 11 AM , while he was gossiping on a roof of a co-villager along with his wife, deceased appellant, Bharat and Puneswar Pegu , the appellant told the deceased to be an idiot and on being so insulted ,the deceased came down the said roof a nd was waiting for the appellant with a lathi on his hand .Subsequently, a quarr el had taken place between the accused and the deceased and they were separated by the villagers. According to this witness, the deceased again chased the appe llant and this time the appellant had caught hold of the deceased and pressed t he neck of the deceased who was declared to be dead by P.W-4.This witness was declared hostile by the prosecution. He denied the suggestion, put to him by th e prosecution ,that the appellant had given a blow on the head of the deceased after pressing his neck. According to P.W-2, the appellant had pressed the neck of the deceased. It is evident that Shri Dambaru Payeng P.W-4 had declared th e deceased to be dead. According to this witness he could not say as to who had assaulted the deceased. 15 Shri Mohiram Payeng, deposing as P.W-3 stated that he heard about the de ath of the deceased. He further stated that the deceased died due to quarrel th at took place between the deceased and the appellant. From the evidence of this witness, it is found that he did not see the occurrence. Police held inquest on the dead body of the deceased vide Ext.1. Ext 1(2) is his signature thereon. 16. Shri Bharat Chandra Hajarika, desposing as P.W-6, stated that, on being asked by police regarding the occurrunce, he expressed his ignorance. He furthe r stated that he found the dead body of the deceased in a boat at 27 k.m at Fe rry ghat. 17. Shri Robin Gohain, S.I. of police deposed as P.W-7. 18. Dr. Jnyanada Prasad, deposiing, as P.W-8,stated that he performed the A utopsy and found no external injury on the dead body. He found blood clot in s ubdural space over the frontal lobe and past of the perietal lobe of the brain extending to the coronal and suggisted sulci. Accoring to the Medical Officer, t he injury was antimortem in nature. He opined that the cause of death was shock and haemorrhage (subdural haemorrhage). He exhibited the postmortem report as E xt.5. Ext. 5(1) is his signature and Ext. 5(2) is the signature of the then Join t Director, Lakhimpur. 19. From the evidence of P.W-8 ,it is found that the deceased died due to subdural haemorrhage injury caused on his head. But none of the prosecution witn esses stated anything regarding such injury. There is no evidence to show that the appellant caused any injury on the head of the deceased. 20. Considering the entire evidence on record, I find nothing substantive to believe that the accused person had caused the death of the deceased. Only P.W- 2 stated that the accused had pressed the neck of the deceased, but there is no corroboration in the evidence of the said witness regarding the injury alleged to be sustained by the deceased on his neck. That apart, according medical evi dence does not indicate that the neck injury was the cause of death. From the e vidence of the prosecution witnesses, it transpires that a quarrel had taken pla ce between the deceased and the accused person and the deceased made attempt to assault with the accused. It is settled law that in a criminal case, the prosec ution is required to prove the charge, brought against the accused person, beyo nd all reasonable doubt. 21. Considering the evidence of record as discussed above, I find no suffici ent reliable and cogent evidence to believe that the appellant had caused the de ath of the deceased. Therefore, in my considered opinion the prosecution faile d to prove its case beyond reasonable doubt. 22. In view of the above, the appeal is allowed. The impugned judgment and o rder, dated 30.6.2003, passed by the learned Sessions Judge, North Lakhimpur is hereby set aside and quashed. 23. Consequently, the accused/ appellant is acquitted and set at liberty for thwith. His bail bond shall stand discharged. Return the L.C.R. forthwith.