Crl.A. 182/2006 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE C.R.SARMA Ranjan Gogoi, J This appeal is directed against the judgment and order dated 17. 6.2006 passed by the learned Ad-hoc Addl. Sessions Judge, Darrang in Sessions Ca se No. 189(DMFT)/01 whereby the accused/appellants have been convicted under Sec tion 302 IPC and sentenced to undergo R.I. for life and to pay a fine of Rs. 5,0 00/-, in default, to suffer S.I. for six months more. The accused/ appellants ha ve also been convicted under Section 324 IPC and have been sentenced to undergo S.I. for one year. Both the sentences have been directed to run concurrently. 2. The prosecution case in short is that on 18.5.99 P.W.3, Naushad Ali had lodged an FIR in the Sipajhar Police Station stating that at about 5 a.m . of the same day while his brother-in-law Sarhab Ali and his son Ahsan (P.W.10) were ploughing in the land belonging to the first informant, the accused person s named in the FIR had assaulted both the aforesaid persons with dao, lathi etc. causing grievous injuries. The aforesaid FIR was despatched to the Mangaldoi P olice Station as the place of occurrence was within the jurisdiction of the said police station and was received at the Mangaldoi Police Station at about 10 p.m . on 18.5.99. 3. On the basis of the aforesaid FIR, Mangaldoi P.S. Case No. 128/9 9 was registered and the same was investigated by P.W.7, Abdul Zalil. As the inj ured Sarhab died thereafter, the offence under Section 302 IPC was added to the list of the offences involved in the police case registered. Inquest was held on the dead body which was sent for post mortem examination. On receipt of the pos t mortem report and on completion of the investigation, chargsheet was submitted against the accused/ appellants and three others, inter alia, under Section 302 IPC. The said offence being exclusively triable by the Court of Sessions, the l earned SDJM (S), Mangaldoi by order dated 20.11.99 committed the case for trial to the Court of Sessions at Mangaldoi. In the Trial Court separate charges under Section 447/326/302 read with Section 34 IPC were framed against the two accuse d/ appellants and three other accused. The accused/ appellants having pleaded no t guilty to the charges trial was held, in the course of which, ten witnesses we re examined by the prosecution. One witness was examined on behalf of the defenc e. The statements of the accused/ appellants were recorded under Section 313 CrP C. Thereafter, at the conclusion of the trial by the impugned judgment and order the two accused/ appellants have been convicted and sentenced as aforesaid. It may be noticed, at this stage, that the remaining three accused have been acquit ted by the learned Trial Judge. 4. We have heard Mr JM Choudhury, learned senior counsel appearing for the accused/ appellants and Mr D Das, learned Public Prosecutor. 5. Mr Choudhury, learned senior counsel for the appellants has vehe mently contended by placing before the Court the evidence of P.W.4, 8 and 10 tha t the said witnesses, particularly, P.W.4 and 10 who are claimed to be the eye w itnesses had contradicted each other on material aspects of the case. It is subm itted that on account of such contradictions the evidence of P.W.4, 8 and 10 are unworthy of acceptance for the purposes of determination of the liability of th e accused/ appellants. Mr Choudhury has drawn the attention of the Court to the evidence of the eye witnesses wherein assault on the neck of the deceased by the accused/ appellants with a ’dao’ as well as assault on Ahsan Ali (P.W.10) has b een deposed to. Pointing out the report of the medical examination of P.W.10 (Ex hibit-1) and the evidence of P.W.1, Dr. Dulal Kalita who had examined the injure d, the learned counsel has submitted that the injuries found on P.W.10 could not have been caused by a ’dao’. Similarly, pointing to the evidence of P.W.2, Dr. Binod Ch. Kalita who had conducted the autopsy on the deceased Sarhab Ali and th e evidence of the eye witnesses regarding assault with a ’dao’ on the neck of th e deceased, Mr Choudhury has submitted that there are material contradictions in the evidence of the eye witnesses and the evidence of the doctor. Such lapses i n the prosecution case, according to Mr. Choudhury, results in a situation wher e the Court must hold that the prosecution case as brought against the accused/ appellants has not been proved beyond all reasonable doubt. That apart, the evid ence on record showing that there was a dispute over the land between the party of the accused/ appellants on one hand and the deceased and the injured (P.W.10) on the other has been pointed out by Mr Choudhury in addition to the fact that the evidence also discloses that there was a mutual fight between the two groups in the course of which injuries were sustained by the accused/ appellants as pr oved by the evidence of D.W.1, Dr. Jamini Sarma. All the aforesaid facts, accord ing to Mr Choudhury, have made the conviction of the accused/ appellants and the sentence imposed legally fragile. 6. Controverting the submissions advanced on behalf of the appellan ts, Mr D Das, learned Public Prosecutor has vehemently contended that though the re are slight variations in the evidence of P.W.4, 8 and 10, the evidence of the two eye witnesses i.e. P.W.4 and 10 is consistent with regard to the assault on the deceased and the injured (P.W.10) committed by the two accused/ appellants. The learned Public Prosecutor has further submitted that the evidence on record clearly establishes that as a result of the injuries inflicted by the accused/ appellants on the deceased death had resulted which would make both the accused/ appellants liable under Section 302/34 IPC as held by the learned Trial Court. C onsequently, it is argued by the learned Public Prosecutor that there is no basi s for causing any modification or alteration in the conviction of the accused/ a ppellants as well as the sentence imposed. 7. To appreciate the arguments and the counter arguments advanced o n behalf of the contesting parties the Court is required to notice, though very briefly, the core of the evidence of the prosecution witnesses. 8. P.W.1, Dr. Dulal Kalilta had conducted the medical examination o f the injured Ahsan Ali (P.W.10) on 18.5.99 in the Mangaldoi Civil Hospital. He has proved the report of the medical examination as Exhibit-1 and his signature therein as Exhibit-1(1). The injuries found by P.W.1 including the opinion rende red by the said witness may best be extracted below: 1. Lacerated injury 5 cm x 5 cm x 1 cm deep over the occipital region of the s calp with active bleeding. Opinion-After observing the patient as a indoor patient upto 25.5.99 it is found that injury was simple caused by impact against hard objection recent in time o f occurrence. 9. P.W.2, Dr. Binod Ch. Kalita had conducted the autopsy of the dec eased on 19.5.99 in the Mangaldoi Civil Hospital. He has proved the post mortem report as Exhibit-2 and his signature therein as Exhibit-2(1). The findings of t he post mortem examination are extracted below: Eyes closed, mouth half open, rigor mortis present. Injures-stitched wound 4 cm long over the occipital bone. Occipital bone fractured, haemorrhage and blood c lot is seen inside. Abrasion injury over the back of the left, middle and index finger. Injuries are ante mortem in nature. In my opinion the cause of death is due to h aemorrhage and shock as a result of injuries sustained. Ext. 2 is the P.M. Ext.2 (1) is my signature. . 10. P.W.3, Naushad Ali, is the first informant. In his deposition th is witness had stated that at about 5 a.m. of the day of occurrence while he was taking tea a person from Ghilaguri village came and informed him that the two a ccused/ appellants along with others (accused who were acquitted) had injured hi s brother-in-law i.e. Sarhab Ali while he was ploughing on the land belonging to P.W.3. According to P.W.3, he went to the place of occurrence but he could lear n that his brother-in-law Sarhab Ali along with his son Ahsan Ali had been admit ted in the Patharighat PHC in an injured condition. P.W.3 had further stated tha t on going to the PHC he found both the persons in a serious condition in view o f which the doctor had referred them to the Mangaldoi Civil Hospital. According to P.W.3, on the following day his brother-in-law Sarhab died whereas the injure d Ahsan remained in the hospital and was later released. 11. P.W.4, Khalilur Rahman in his deposition had stated that in the morning of the date of occurrence, as instructed by the deceased Sarhab Ali, he was ploughing the land. P.W.4 had deposed that while he was engaged in ploughing accused Ayez who was armed with a stick called accused Islam who came with a ’d ao’ in his hand. According to P.W.4, both the accused had asked him to free the bullocks from the plough which was refused. Thereafter, P.W.4 went to the side o f Sarhab who was cutting the edge of the ridge. According to P.W.4, accused Ayez also went near Sarhab and gave one blow with the stick that he was carrying on the shoulder of the deceased Sarhab. Thereafter, according to P.W.4, accused Is lam hacked Sarhab in his neck with a ’dao’. P.W.4 had further deposed that he ra ised hue and cry hearing which Sarhab’s son Ahsan Ali (P.W.10) came to the place of occurrence. Thereafter, according to P.W.4, he fled away from the place. 12. P.W.5, Shaha Alam in his deposition had stated that he had gone to the PHC upon hearing that a fight had broken out between the two groups and b oth parties were lying in the PHC. P.W.5 had specifically deposed that apart fro m deceased Sarhab and injured Ahsan who were lying in the PHC, he could see the accused/ appellants in the PHC. This witness had also deposed that both the grou ps were referred by the doctor in the PHC to the Mangaldoi Civil Hospital. 13. P.W.6, Mazammil Haque in his deposition had stated that on the d ate of the occurrence at about 5.30 a.m. he heard hue and cry from the roadside. Going out he found the deceased Sarhab and Ahsan with bleeding injuries. Therea fter, according to P.W.6, he along with other villagers took the injured to the PHC and, thereafter, to the Mangaldoi Civil Hoispital. In cross-examination P.W.6 had specifically stated that the two accused/ appellants had also sustained injuries in the same incident and both of them were treated in the hospital. 14. P.W.7, Abdul Zalil is the Investigating Officer of the case who had deposed with regard to the various steps taken by him in the course of the i nvestigation. In cross-examination, P.W.7 had specifically stated that after a rresting the two accused/ appellants he had sent them to the Mangaldoi Civil Hos pital for treatment of their injuries. The forwarding report along with the sign ature therein was identified by P.W.7 as Exhibit-’Ka’ and ’Ka(1)’. 15. P.W.8, Ms. Sayeda Begum is the daughter of the deceased. Accordi ng to P.W.8, in the morning of the date of occurrence hearing a commotion she ru shed out to the place where her father was ploughing. Going there she found her father (deceased) and her elder brother Ahsan Ali (P.W.10) lying injured. This w itness had stated that she had seen the accused/ appellants with the other accus ed running away with weapons in their hands. P.W.8 had specifically deposed that she saw cut injuries on the head of her elder brother and in the neck of her fa ther. In cross-examination, P.W.8 had admitted that a cross case with regard to the same incident alleging assault on the accused/ appellants had been instituted and further that the two accused/ appellants were also treated in th e Mangaldoi Civil Hospital for the injuries sustained by them. 16. P.W.9, Hasmat Ali in his deposition had stated that in the early morning of the date of occurrence while he was sleeping he was woken up by hue and cry raised by his paternal aunt. Thereafter, P.W.9 went to the field where h e was informed of the assault on the deceased and the injured Ahsan Ali (P.W.10) . Going to the place of occurrence he saw the injured Ahsan lying on the ground with his younger sister Sayeda (P.W.8) holding him. According to P.W.9, in the m eantime, injured Sarhab was taken home and, thereafter, both the injured persons were taken in a push cart to the hospital. In cross-examination, P.W.9 had stated that he had seen the fath er of the accused/ appellants in possession of the disputed land since his child hood. 17. P.W.10, Ahsan Ali is the injured. According to P.W.10, at about 6 a.m. of the date of occurrence hearing hue and cry of Khalilur Rahman (P.W.4) he went to the place of occurrence and saw the two accused/ appellants along wit h others beating up his father i.e. deceased Sarhab as well as his mother and tw o younger sisters with lathi. According to P.W.10, he separated them and as his father was about to move to his house accused Islam hacked him in the neck with a ’dao’. According to P.W.10, thereafter, accused Ayez also hacked him (P.W.10) on the head with a ’dao’. In cross-examination, P.W.10 had stated that his family was cult ivating the land in question for the last 25 years. 18. As already noticed in the discussions that have preceded, D.W.1, Dr. Jamini Sarma was examined by the defence to prove the injuries on the two a ccused/ appellants which is claimed to have occurred in connection with the same incident. 19. A consideration of the evidence of the prosecution witnesses, th e main part of which has been extracted above, would go to show that P.W.4 and 1 0 are claimed to be the eye witnesses to the occurrence. Comparing the evidence of the two eye witnesses i.e. P.W.4 and 10, we find certain vital contradictions in the evidence tendered by the said witnesses. Whereas, according to P.W.4, af ter the deceased Sarhab was hacked with a ’dao’ he had raised hue and cry hearin g which Ahsan Ali (P.W.10) along with other family members came to the place of occurrence; according to Ahsan Ali (P.W.10), he had gone to the place of occurre nce after hearing hue and cry of Khalilur Rahman (P.W.4) and found the accused/ appellants along with others assaulting the deceased as well as the mother and t wo younger sisters of the witness. According to P.W.10, he had tried to separate the two groups and as his father was about to move to his house he was attacked by the two accused/ appellants, in the course of which, a ’dao’ blow was given on the neck of the deceased by accused Islam. P.W.10 had also deposed that he w as hacked on the head with a ’dao’ by accused Ayez. The variation in the evidenc e of the two eye witnesses cannot be explained, as has been sought to be done by the learned Public Prosecutor, by referring to the time lag between the inciden t and the time of examination of the witnesses in Court; nor can the inconsisten cies and contradictions be brushed aside as being on insignificant aspects of th e case. In fact, on reading the evidence of P.W.4 and 10 it appears to us that t here are two versions of the prosecution case which are not mutually reconcilabl e. If P.W.4 is to be believed the Court cannot accept the testimony of P.W.10 an d if P.W.10 is to be believed the evidence of P.W.4 will have to be discarded. T hat apart, the evidence of P.W.10 is not supported by what was stated in Court b y P.W.8, Sayeda Begum, inasmuch as, from the evidence of P.W.8 it does not appea r that there was any assault committed on her by the accused/ appellants, though , according to P.W.10, both his sisters were also assaulted by the accused. 20. The above apart, the Court has noticed that the specific case of the prosecution is that while the deceased Sarhab was assaulted with a ’dao’ on the neck, injured Ahsan (P.W.10) was assaulted with a ’dao’ on his head. The ev idence of P.W.1 and 2 who had proved the injuries on Ahsan (P.W.10) and the dece ased respectively indicates finding of lacerated injuries which in the normal co urse cannot be caused by a ’dao’. Furthermore, the prosecution evidence itself indicates that both the parties were in dispute with regard to their respective rights over the land which was being ploughed by the deceased and P.W.4 at the t ime of the occurrence. The prosecution witnesses have also deposed with regard t o a mutual fight between the two groups. That the accused/ appellants had also r eceived injuries and were treated initially in the PHC and, thereafter, in the M angaldoi Civil Hospital is clearly established by the evidence of the prosecutio n witnesses including the evidence of the Investigating Officer himself. The tim e when the accused/ appellants were found in the PHC with injuries being immedia tely after the incident, the Court cannot take any other view except that the ac cused/ appellants had received such injuries in the course of the same incident. 21. All the aforesaid facts, in our considered view, would go to sho w that in the present case the prosecution has miserably failed to prove the cha rges brought against the accused/ appellants. There are vital contradictions in the evidence of the prosecution witnesses and serious gaps in the prosecution ca se against the accused/ appellants. We are, therefore, of the view that the conv iction of the accused/ appellants under Section 302/324/34 IPC is not warranted in law. 22. Accordingly, we set aside the conviction of the accused/ appella nts and the sentence imposed by the judgment and order dated 17.6.2006 passed by the learned Ad-hoc Addl. Sessions Judge, Darrang in Sessions Case No. 189(DMFT) /01. 23. It is stated that both the accused/ appellants are presently in custody. We, therefore, direct for their release forthwith unless such custody i s required in connection with any other case.