(THE HIGH COURT OF ASSAM, NAGALAND

MEGHALAYA, MANIPUR TRIPURA, MIZORAM AND ARUNACHAL PRADESH)

Criminal Appeal No. 18 (J) of 2003

.

Manoj Kumar Das,

.S/o Jogen Chandra Das,

.Vill- No. 1, Amtolla,

.P.S. - Chaygaon,

.Dist.- Kamrup, Assam.

Petitioner

-Versus-

The State of Assam

Respondent.

!Amicus Curiae.

Sri K A Mazumdar, .

Petitioner's Advocates

^Addl. PP Assam.

Respondent's Advocate

Coram:

PRESENT

HON'BLE MR. JUSTICE MADAN B. LOKUR (CHIEF JUSTICE) HON'BLE MR. JUSTICE B. D. AGARWAL

Date of Judgment:03/03/2011

:JUDGEMENT

ORDER (CAV)

The appellant, herein, stands convicted under Section 307 and 224 of the Indian Penal Code (hereinafter, referred to as the 'IPC', for short), vide impugned Judgment and Order dated 23.04.2003, passed by the learned Additional Sessions Judge No. 1 (Adhoc), Kamrup, in Sessions Case No. 209 (K) of 2001. On such conviction, the appellant has been sentenced to undergo SI for 10 (ten) years for his conviction under Section 307 IPC and SI for 2 (two) years for his conviction under Section 224 IPC. Being aggrieved with the conviction and sentence, the accused has preferred this appeal.

2..Heard Sri Binod Kumar Singh, learned counsel (Amicus Curiae) for the appellant and Sri K A Mazumdar, learned Additional Public Prosecutor for the State of Assam. We have also gone through the impugned Judgment and the evidence on record.

3..The gist of the prosecution case is that on 27.11.1998, the injured Police Officer along with few other Police personnel went to Village Bhati Jiyakur to apprehend the accused and recover the stolen property in connection with Chaygaon PS Case No. 223 of 1998 under Section 379 of the IPC. While the Police personnel were on way to Bhati Jiyakur Village, they saw the appellant coming from the opposite direction with his hand-cart. Since the appellant was also wanted in connection with Chhaygaon PS Case No. 198 of 1998, he was arrested by the Police Officers and detained in the bus, in which, the Police Officers were traveling. According to the prosecution, it was at about 3:30 am. It is the further case of the prosecution that the bus was stationed near a bridge and the appellant was kept under the surveillance of Home guard Rafiqul Islam (PW-3) and the remaining Police personnel went inside the village to investigate the case of Chhaygaon PS Case No. 223 of 1998. According to the prosecution, the appellants suddenly attempted and assaulted Rafiqul Islam with a 'khukuri' causing lacerated injuries on his head, forehead and other parts of the body and fled away from the scene.

4..After return to the Police Station, ASI Abdul Mazid, who was also a member of the Police team, lodged an FIR and it was registered as Chhaygaon PS Case No. 224 of 1998 under Section 353/326/307/224 IPC. After investigation, chargesheet was also submitted for the aforesaid offences. However, after commitment of the case, the learned Additional Sessions Judge tried the appellant only for the offences under Section 307 and 224 IPC. It may be mentioned here that during investigation the accused was arrested and produced on 24.4.1999 and he was granted bail on 29.7.1999, but the accused could not produce any surety. Resultantly, the appellant is in prison.

5..As could be gathered from the record, the prosecution examined altogether 11 (eleven) witnesses to establish the aforesaid offences. It includes the injured, Medical Officer, Police Officers, who had accompanied the accused in the bus at the relevant time, the driver of the bus and the Investigating Officer. The defence case is of total denial and no defence evidence was tendered.

6..As noted earlier, at the relevant time, only the injured driver and the cleaner of the bus were present at the scene when the appellant had allegedly assaulted PW-3. In other words, all the remaining witnesses were reported about the assault when they returned to the place.

7..The injured has been examined as PW-3, whereas the driver has been examined as PW-5. As expected, PW-3 has deposed that when he was guarding the appellant in the bus he suddenly attacked him with a 'khukuri' causing various injuries and fled away. According to PW-3, although the driver and handyman were present in the bus but they did not come for his help. On the other hand, the driver (PW-5) has deposed that he tried to resist the assault but could not prevent the accused. PW-5 has further stated that out of fear he came out of the bus through the window and took shelter at a near distance, till the arrival of the Police team.

8..In our considered opinion, the testimonies of both PWs 3 and 5 cannot be taken as a gospel truth and their testimonies are not supported by cogent and convincing evidence. In the cross-examination, PW-3 has deposed that when the appellant Manoj Das was apprehended it was about 1:00 am, whereas, as per the GD entry No. 426 (Ext-2), the Police team had left the Police Outpost at 3:30 am. Besides this, according to PW-3, the accused/ appellant was not handcuffed, whereas, according to PW-8, the accused was put under handcuff in the bus. In our considered opinion, in both the situations, the appellant could not have assaulted PW-3. Had he been in handcuffed position it would not have been physically possible to assault PW-3. At the same time, if the appellant was not handcuffed he could have fled away from the bus since he was sitting in the last row of the bus, which had another exit door in the rear. It may also be mentioned here that according to the injured as well as the driver, the accused was in the rear seat, whereas, the injured was in the third row.

9..The other major deficiencies in the prosecution case are that, no witness has deposed that when the appellant was apprehended he was carrying any weapon. Besides this, the prosecution is totally silent to explain why the handyman/ cleaner of the bus was not examined. At the same time, the conduct of the driver (PW-5) also does not inspire our confidence to accept his testimony. As noted earlier, the bus had 2 (two) exit doors and despite that, PW-5 has deposed that he had to jump through the window. The witness has not explained as to why he could not come out of the front door. Besides this, the evidence reveals that the Police team had returned to the place of incident after more than 1 (one) hour and till then the driver did not make any effort to take PW-3 to any doctor or the Police Outpost, although the accused had already fled away from the bus.

10..For the foregoing reasons, we are of the opinion that it is a fit case wherein the appellant should be given benefit of doubt. Consequently, the impugned Judgment of conviction is hereby set aside. The appeal stands allowed. The appellant is set at liberty forthwith.

11..Since the appellant is in jail the Registry is directed to issue release order to the concerned jail authority forthwith. Also send down the LCRs with a copy of this Judgment to the trial Court.

12..We acknowledge the valuable services rendered by Shri B. K. Singh as Amicus Curiae and as such, his remuneration for this case is fixed at Rs. 5,000/- (Rupees Five Thousand only).

how much money was stolen and the I.O also seized only a su m of Rs. 195.00 from the house of the appellant vide Ext. 13. But, the prosecution failed to prove the said seizure. Hence, this circumstantial evidence also could not be established.

26..For the reasons, alluded hereinabove, we hold that the conviction of the appellant under Section 302 of the Indian Penal Code is unsustainable on facts as well as in law.

27..In the result the appeal stands allowed. The impugned judgment is hereby set aside. The appellant is set at liberty forthwith. Since the appellant is in judicial custody, the Registry is directed to issue release order to the concerned jail authority immediately.

28..We order that the learned Amicus Curiae shall be entitled to remuneration of Rs. 5,000/- (Rupees Five Thousand only) for assisting the Court.

29..Send down the LCRs to the trial Court, with a copy of this judgment.