Crl.A. 9/2003 BEFORE HON’BLE MR. JUSTICE H. BARUAH Heard Mr. A. M. Majumdar, learned Sr. counsel assisted by Mr. F.K.R Ahmed, learn ed counsel for the appellant and Mr. K. Munir, learned Addl. P.P for the State o f Assam, the sole respondent. 2. In this appeal, the judgment and order dated 29-11-2002 passed b y Sessions Judge, Dhemaji in Session Case No. 38(DH)/97 has been challenged. By this impugned judgment and order, the trial court convicted the appellant under Section 307 IPC and sentenced him to suffer rigorous imprisonment for two years and to pay fine of Rs. 1000/- in default rigorous imprisonment for one month. 3. The brief facts involved in this appeal can be recorded as under : Informant Sri Sibaram Morang was entrusted with investigation of the case being No. Dhemaji P.S 104 of 1995 under Section 394 IPC by the Officer -in-charge of Dhemaji police station. For the purpose of investigation of the ca se as indicated above, on 30-6-1995 at about 9.45 pm said Sibaram Morang along w ith Constable Gyandhar Deuri, Binanda Boruah, Naren Sonowal and several others p roceeded to the place of occurrence and when all of them reached the weekly mark et, accused Kamal Gogoi, the appellant herein along with Piti Gogoi, Bhaikon Gog oi and Pankaj Konwar all on a sudden attacked Sibaram Morang, the Sub-Inspector of police, the Investigating Officer, Dhemaji P. S Case No. 104 of 1995 with the help of dao resulting injuries to his right hand, chest. During commotion accus ed Piti Gogoi was caught red handed by one of them. On lodgment of the First Inf ormation Report by Sibaram Morang with the Officer-in-charge, Dhemaji police sta tion, Dhemaji P.S Case No. 105 of 1995 was registered under Sections 333/307/427 read with Section 34 IPC. Investigation commenced and after due investigation c harge sheet was laid against the appellant under Section 333/307/427/34 IPC alon g with others, namely, Piti Gogoi, Pankahj Konwar and Bhaikon Dihingia @ Pranjal . It is to be noted that during investigation of the case, the Investigating Off icer seized a dao from the possession of accused appellant Sri Kamal Gogoi along with his golden badge. The offence under Section 307 IPC being exclusively tria ble by the Court of Session, the case was committed for trial of the accused per sons to the Court of Session. The trial court on 4-2-1998 having prima facie mat erial to presume that the appellant Kamal Gogoi, Piti Gogoi, Pankaj Konwar and B haikan Dihingia alias Pranjal committed offences under Section 352 and 427 IPC f ramed charges accordingly against them while appellant Kamal Gogoi was charged a lone under Section 307 IPC. Accused persons having not pleaded guilty to the cha rges, the trial commenced. 4. Prosecution all together to bring home the charges examined 10 w itnesses including the doctor and the I.O. The trial court on the basis of the m aterials available and the evidence on record both oral and documentary by the i mpugned judgment dated 29-11-2002 convicted the appellant, Kamal Gogoi alone und er Section 307 IPC. Finding no sufficient materials rather evidence on record as against all the four accused including the appellant herein acquittal was recor ded under Sections 353 and 427 IPC. Hence, this appeal. 5. At the very out set, Mr. A. M. Majumder, learned Sr. counsel for the appellant submits that the conviction and sentence awarded by the learned t rial court by the impugned judgment cannot sustain in view of absence of proof o f the Dhemaji P.S Case No. 104 of 1995 and also in absence of proof of the comma nd issued by the Officer-in-Charge of Dhemaji police station-II, to the first in formant, PW-8, Sri Sibaram Morang to investigate the case as indicated. The seco nd leg of argument advanced by Mr. A. M. Mazumder, learned Sr. counsel is in res pect of non-production of the torchlight, the means of recognition of the accuse d at the time of occurrence. It is argued by him that occurrence admittedly took place during night time at about 9.45 p m. Except witness Sibaram Morang (PW-8) none of the witnesses accompanied said Sibaram Morang did state before the tria l court on oath that they had the opportunity to recognize the assailant, theref ore, according to Mr. A.M. Majumder, learned Sr. counsel, the claim of PW-8 that he recognized the assailant, the appellant herein through means of the torch li ght which was at that time with him though a material piece of evidence, to take a consistent view that the appellant, Kamal Gogoi had been recognized by PW-8, Sibaram Morang, the informant with the help of the torch that was with him at th e relevant point of time, cannot be believed in absence of production of torchli ght at the trial. According to Mr. Mazumder, learned Sr. counsel, this material lacuna appearing in the face of the record, cannot take the place of proof under Section 307 IPC against the appellant. In respect of registration of Dhemaji P. S Case No. 104 of 1995 under Section 394 it is stated by PW-8, Sibaram Gogoi, t he informant that on 30-6-1995 at 9.45 pm one of the Constables of Dhemaji polic e station appeared before the police station and complained that appellant Kamal Gogoi along with Piti Gogoi, Pankaj konwar and Bhaikon Dihingia @ Pranjal had b een to his house and had taken away the entire salary after assaulting him merci lessly. On this information, the officer-in-charge of Dhemaji police station ent rusted investigation of the case and he immediately along with Binanda Baruah, G yandhar Deuri and Naren Sonowal all Constables proceeded to the place of occurre nce. This piece of evidence is not supported by any documentary evidence whatsoe ver. The prosecution was unable to prove the concerned G.D Entry in respect of i nformation given by the Constable, nor the first information report lodged by th e constable, nor any commanding note of the officer-in-charge of the Dhemaji pol ice station concerned in regard to movement of PW-8 to the place of occurrence a long with some other constables namely, Binanda Baruah, Gyandhar Deuri and Naren Sonowal. Unless the fact of institution and lodgment of FIR basing which Dhemaj i P.S case No. 104 of 1995 was stated to have been registered, the factum of pro ceed to the place of occurrence by PW-8 along with constables named above remain ed not proved by the prosecution. It also failed to prove the G. D. Entry as wel l as the command in respect of institution of the case and proceed to the place of occurrence as well. Mr. Mazumder, therefore, taking these material defects in the prosecution case urges this court that the case of the prosecution cannot s tand in its way in view of lapses on the part of the prosecution to prove these facts. From the materials available in the case record and the concerned case di ary this court is unable to locate such FIR lodged by one of the constables of D emaji police station in regard to his assault on the night of 30-6-1995 at 9.45 pm by the appellants along with others whose names are indicated herein before, the G.D entry in respect of filing of the first information report by one of the constables and the G.D. E commanding PW-8 to proceed to the place of occurrence after registration of the case. These in combination make the prosecution case doubtful whether on the relevant night and time Sibaram Morang (PW-8) did actual ly proceed to the place of occurrence on connection with the investigation of th e Dhemaji P.S case No. 105 of 1995 or not. 6. Mr. Munir, learned Addl. P.P representing the State of Assam, th e sole respondent also concedes that except a mention of the case in the First I nformation Report, there is nothing on the record to show that such a case had a ctually been registered on the information of the Constable concerned for his as sault by Kamal Gogoi, the appellant herein and the other accused, who were facin g the trial in this case. Therefore, according to Mr. Mazumder, learned Sr. coun sel that the factum of proceed of p.w-8 to the place of occurrence along with ot her constables remains doubtful and, therefore, the conviction awarded by the tr ial court cannot sustain in law. In respect of recognition of the appellant exce pt PW-8, the informant himself alone has come forward to say that he had the opp ortunity to recognize the appellant when he tried to assault PW-8, Sibaram Moran g. The witnesses who accompanied PW-8 categorically stated in their evidence tha t due to darkness they were unable to recognize assailant/assailants. Now, the q uestion, which comes in whether evidence of PW-8, Sibaram Morang alone is suffic ient to warrant conviction under Section 307 IPC against the appellant in absenc e of proof of proceeding of himself to the place of occurrence along with others in connection with the investigation of Dhemaji P.S case No. 104 of 1995. If we take the evidence on record, recorded on oath by the trial court, it would be s een that when he along with other constables arrived at the back side of the tem ple situated at the daily bazaar, he found appellant Kamal Gogoi, Piti Gogoi, Pa nkaj Konwar and Bhaikon Dihingia @ Pranjal standing at the place being armed wit h dao, lathi etc. It is also stated by him that seeing/noticing them being armed with lathi, dao etc. he immediately caught hold of Piti Gogoi and handed over t o reserve officer to accompnied them. When he tried to catch/ apprehend the appe llant herein, appellant tried to assault him with the help of the dao in his han d but as a result going back a step, the blow fell on his right-hand shoulder ov er the badge of his uniform. As a result he sustained minor injury on his right shoulder. Kamal Gogoi being remained unsatisfied with the first blow then and th ere dealt two blows one on the neck and other on the chest. When he raised alarm , the accompanied Constables assembled at the place but in the meantime, the ass ailants managed to flee away from the place. Being injured he was taken to hospi tal by the reserve officer who accompanied him and he was treated by Dr. P.K. Ba ruah (PW-4). It is further stated that he was under going treatment for 18 days together. It is also stated in his evidence that Investigating officer seized th e golden badge from him vide Ext. 1, the seizure memo. He proved the signature, Ext. 4(1). So, from this piece of evidence it is noticed that he alone recognize d the appellant herein and none else. PW-4, the doctor also discovered two numbe rs of injuries on the person of PW-8, which were all simple in nature. He discov ered a cut injury of 3 x ‰ x ‰ of clear margin on the ulna aspect of left wri st joint with active bleeding. He also discovered another cut injury of size 3 x … x ‰ over the chest on the sterno - clavicular joint with active bleeding. Mr. A. M. Majumder taking assistance of the evidence of P.W-4, Dr. P.K. Baruah p ut emphasis that the injuries discovered by the doctor on the person of the inju red (PW-8) cannot give an indication that these injuries can result death of the person and therefore, the conviction under Section 307 IPC could not be sustain able in law. Admittedly, these injuries were on ulna aspect of left wrist joint and on the chest which of size 3 x … x … . Both the injuries, though one was c aused on the vital part of the person of PW-8, might not have resulted death of PW-8, the first informant. Though chest is a vital part of the human physiology , the injury sustained thereat and discovered by Dr. P.K. Baruah, PW-4 cannot, h owever, cause death in the ordinary course of nature. It was argued by Mr. Majum der, learned Sr. counsel that conviction under Section 307 IPC of the appellant is erroneous and illegal. The learned trial court though framed charges under Se ction 353 and 427 IPC was unable to record conviction under any of the charges a gainst the accused and accordingly, they were all acquitted. 7. It is already indicated herein before that PW-8, the first infor mant did recognize the appellant with the help of torchlight, which he has carry ing at that time. The Investigating Officer though seized the said torch light d uring investigation of the case, the same was not produced before the court at t he trial for its recognition either by PW-8, the first informant or by the Inves tigating Officer. In a catena of decisions in such nature of cases, the means of recognition and the weapon of offence are required to be produced at the trial to facilitate the trial court to arrive at a definite conclusion that by means o f those materials, the assailant is/was recognized and the injured was assaulted . The weapon of offence and means of recognition being not placed during the tri al for recognition by those material witnesses, claim of PW-8 that he recognized the assailant by means of the torch he was carrying cannot be acceptable. Furth er, the weapon of offence, which was alleged to have been seized from the posses sion of the appellant was also not produced at the trial for recognition. This a lso makes the prosecution case shaky to a considerable extent. 8. Non-production of the weapon of offence as well as the means of recognition coupled with failure to prove institution of Dhemaji P. S case No. 104 of 1995 and the Command certificate in particular, this court is of considered view that prosecution case suffers a lot at the root, which could not be cured by the prosecution during trial. These primary facts lead to a conc lusion that on the relevant date and time PW-8 did never proceed to the place of occurrence for the investigation of Dhemaji P.S Case No. 104 of 1995. Prosecuti on case seems to have merged with doubts and the appellant is entitled to it. 9. In view of the discussions hereinbefore made, the facts and the circumstances of the case and evidence of record, I find grounds to interfere wi th the impugned judgment and conviction and accordingly, the same is interfered with. 10. In the result, the appeal is allowed. Impugned judgment and ord er of conviction and sentence is set aside and quashed. Accused is acquitted on the benefit of doubt. It is informed by the learned counsel for the appellant th at the accused is on bail. Bail bond stands discharged.