IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram & Arunachal Pradesh) Crl. A(J). No.

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1 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram & Arunachal Pradesh) Crl. A(J). No. 198/2007 Sri Monai Tanti.. Appellant Vs State of Assam.. Respondent. BEFORE HON BLE THE CHIEF JUSTICE MR. A.K. GOEL AND HON BLE DR. (MRS.) JUSTICE INDIRA SHAH For the Appellant :: Mr. B. Gogoi, earned Amicus Curie For the Respondent :: Mr. D. Das, learned PP, Assam Date of hearing :: Date of delivery of Judgment ::

2 2 JUDGMENT & ORDER(CAV) This appeal is directed against the judgment and order dated passed by learned Addl. Sessions Judge No. 2 (FTC), Tinsukia in Sessions Case No. 135(T)/2006. By the impugned judgment the accused appellant has been convicted under Section 447, 323 and 302 IPC and thereby sentenced to undergo rigorous imprisonment for 2 months, 3 months and imprisonment for life with fine of Rs. 1,000/- in default further rigorous imprisonment for 3 months respectively. 2. The prosecution case that led to the trial is as follows: On at about 10 a.m. the accused trespassed into the house compound of the deceased and assaulted the deceased, Golok Gohain by means of a dao. Hearing the alarm raised by the victim, his daughter, Smt. Padmini Buragohain came out of the house and she was assaulted. One Babu Chakma who was also present at the relevant time also sustained injuries caused by the accused. When the wife of the victim came in their rescue she was also assaulted. Injured Golok Gohain was immediately shifted to hospital where he succumbed to his injuries after two days.

3 3 An FIR being lolged by the wife of the deceased. Police registered a case under Section 447, 326 IPC. As the deceased succumbed to his injuries, 302 IPC was added and on completion of investigation, chargesheet under Section 447/302 IPC was submitted against the accused. The learned trial Court framed the charges under Section 427, 323, 302 IPC. The accused pleaded not guilty to the charges and claimed to be tried. During trial the prosecution examined altogether 14 witnesses. Thereafter, the statement of the accused under Section 313 Cr.P.C. was recorded wherein he denied the allegations leveled against him and stated that there was quarrel between Babu Chakma and deceased Golok Gohain. However, no defence evidence was adduced. 3. We have heard Mr. Bibekananda Gogoi, learned Amicus Curie appearing on behalf of the appellant as well as Mr. D. Das, learned Additional Public Prosecutor, Assam for the State Respondent. 4. PW1, Smt. Prabhati Buragohain, wife of the deceased, PW2, Smt. Padmini Buragohain, their daughter, PW3, Anil Buragohain, one of the relative of the deceased and PW5, Babu Chakma have given eyewitness account of the incident.

4 4 5. PW1 stated that on the date of occurrence at about 9 a.m. her husband sitting in the verandah of his house was talking with Babu Chakma. PW1 was taking bath at the tubewell. In the meantime accused Monai Tanti came to their house compound and inflicted three cut blows on the abdomen of her husband with a khamti dao. She witnessed the incident and called her daughter, Padmini who was inside the house. Padmini and Babu Chakma offered resistance and thereby Babu Chakma also sustained injuries. While Padmini was making efforts to take her father inside the house, she was assaulted by the accused. PW1 requested the accused not to assault her as she was sick but the accused told that he would not consider any sickness and destroy all. When her husband fled away the accused chased him and felling him under a banana tree, gave subsequent blows by means of the dao. PW1 raised alarm and the neighbours came in their rescue. Her husband was taken to Kakapathar Hospital where from he was referred to Tinsukia Hospital for treatment. Babu Chakma was also treated at the hospital. From Tinsukia Hospital her husband was shifted to Dibrugarh Medical College where he succumbed to his injuries. She lodged the FIR.

5 5 6. PW2, Padmini Buragohain deposed that she was inside the house while her father was sitting out in the verandah alongwith Babu Chakma. Hearing the alarm raised by her mother she came out in a run. She saw the accused inflicting dao blows on her father. When she attempted to save her father, the accused inflicted dao blows on her left arm. She then raised hue and cry. Her uncle Anil Buragohain came and then accused fled away. She further deposed that her father attempted to run away but the accused chased after him and gave subsequent dao blows. Her father was removed to Kakapathar Hospital with the help of Anil Buragohain and Babu Chakma. She was also examined by the doctor at Kakapathar hospital. Her father received injuries on the left side of the abdomen, on the left hand and expired on the fourth day from the date of occurrence. 7. PW3, Anil Buragohain is the brother of the deceased. In his evidence he stated that while working at the orchard of his house, he heard commotion at the house of the deceased. He immediately came to the place of occurrence and saw the accused inflicting dao blows on the deceased. When he proceeded to save him, the accused chased after him and then he raised hue and cry. The accused fled away after inflicting injuries on his brother, wife of his brother and

6 6 niece Padmini. He also saw Babul Chakma, who accompanied his elder brother, sustained injuries. He took the victims to Kakapathar Hospital in an autorickshaw. From Kakapathar Hospital the victims were shifted to Tinsukia Civil Hospital. As per the advice of doctor his brother was again removed to Dibrugarh Medical College where he succumbed to his injuries. The inquest on the dead body was held in his presence. 8. PW5, Babu Chakma stated that in the verandah of the house of Golok while he was talking with him, one man came there with a dao and gave dao blows on the abdomen of Golok. Golok attempted to flee away. He also started running but the person inflicted blows causing injuries on his back. He heard Golok s wife crying do not cut me. He noticed Golok s wife also received injury on her hand. While he was escaping, he met Golok s younger brother Anil and reported him about the incident. Along with Anil he came to the place of occurrence and found Golok lying under a banana tree. The victims were shifted to the hospital at Kakapathar and there from to Tinsukia Hospital, then to Dibrugarh Medical College. 9. PW4, Rajen Buragohain hearing the commotion arrived at the place of occurrence. He

7 7 found Golok s wife and daughter alongwith Babu Chakma. They told him that the accused had cut Golok. He then saw Golok lying under a banana tree smeared with blood. Golak told him that the accused Monai had cut him and he would die. He noticed injuries on the back of Babu Chakma, on the arm of Padmini and on the hand of Golok s wife. All the injured persons were taken to the hospital. Anil (PW3) accompanied them. 10. PW6, Manik Handique is a seizure witness. A dao was seized, on being produced by Lambeswar Dohotia, in his presence. 11. PW7, Lambeswar Dohotia turned hostile to the prosecution. However, he admitted his signature on the seizure list. 12. PW8, Atul Gohain did not see the occurrence. Inquest on the dead body was held in his presence. 13. PW9, Dr. Anil Patowary examined the victims Prabhati Buragohain and Padmini Buragohain on at Kakapathar P.H.C. He found no active bleeding and no internal injury on the body of Prabhati Buragohain, however, she complained pain in

8 8 her chest. On examination of Padmini Buragohain, he found pain on right hand. He opined that the victims suffered simple injury. 14. PW10, Dr. Rupak Kr. Gogoi, held postmortem examination on the dead body of Golok Gohain and his findings are as follows: One male dead body of average built, sworthy complexion found naked. Rigor mortis present in both upper and lower limbs. One vertical left paramedial surgical incission 15 c.m. in length present on abdominal wall which was found with stitches. Injury: One incised wound measuring 35 c.m.x4 cms. present on left lateral side of the lower thorax directed downwards towards right which incised the diaphargm and the diaphargm was found with stitches. (2) Incised wound 8cm.x2 c.m. x muscle deep present on proximate part of flexar surface of left fore arm found with stitches. (3) One vertical incised would on left hand palm measuring 6 cm.x1c.m.x muscle deep which was found with stitches between 4 th to 5 th finger (4) One incised wound present on left palm directed downward and upward measuring 6x1cm. x muscle deep starting at web of the thumb and index finger.

9 9 All the organs of cranium and spinal canal found healthy. Examination of thorax: Wall as described. Pleurae incised, left lung found collapsed. Other thorasic organs were found healthy. Examination of abdomen: All abdominal organs were found healthy. In the opinion of doctor, the cause of death was shock and hemorrhage resulting from injuries. All injuries were antemortem, caused by sharp cutting weapon and homicidal in nature. PW10 was not crossexamined. 15. PW11, Puren Bruagohain also turned hostile to the prosecution. He denied that he saw the accused inflicted injuries on the victim Golok Gohain and when the inmates of the house came in rescue of Golok Gohain they were also assaulted. He stated that hearing hue and cry he went to the house of the deceased. He found the body of Golok Gohain lying in front of the house with injuries in his abdomen. The wife of Golok Gohain reported him that the accused caused injuries to her husband by means of a dao. The injured were removed to hospital. 16. PW13, Dr. Anil Patowaly examined the victim Babu Chakma on According to him

10 10 there was pain on right cheek of the victim. No active or internal bleeding was detected. The type of injury was simple. 17. PW14, Padeswar Gogoi, ASI investigated the case. He stated that on receipt of FIR he visited the place of occurrence and came to know that one of the injured had been shifted to Assam Medical College Hospital at Dibrugarh in critical condition. He met the injured at Assam Medical College & Hospital and recorded his statement wherein he stated as follows: Yesterday when guest visited my house at a.m.; and while I was talking to the guests and the inmates of my house inside the compound of my house, Sri Monai Tanti, who was living in the west of my house, came crossing the fencing taking a dao in hand and without saying anything, dealt cut blows from behind. As I took a turn the cut blow fell on my abdomen. When he tried to deal more cut blows, I stretched out my hand whereupon he cut in different parts of my body. I sustained serious injuries in the abdomen. The intestine started coming out. Holding by one hand I went some distance away and fell down. The members of the family immediately took me to Medical. Now I am taking treatment at Assam Medical College Hospital, Dibrugarh. I have not recovered. It is true that co-villager Monai Tanti cut me with a dao.

11 11 PW14, denied in his cross-examination that no such statement was recorded by him during the investigation. PW14 recorded the statement of victim under Section 161 Cr.P.C. The statement of victim recorded u/s 161 Cr.P.C. was not exhibited. 18. It is submitted by the learned counsel for the appellant that in the FIR it has been stated that the incident occurred in presence of Babu Chakma and one another. The identity of another person was not disclosed by the prosecution and that another person was also not examined by the prosecution. 19. The accused in his statement recorded under section 313 Cr.P.C. stated that there was quarrel between the members of the victim and Babu Cakma and there was another man who left the place on his motorcycle. 20. PW1, PW2 and PW3 the wife, daughter and relative of the deceased have categorically stated that the accused inflicted injuries on the deceased by means of a dao. Their evidence has been corroborated by PW5 who happens to be an independent witness. 21. It is submitted by the learned counsel for the appellant that one another person who

12 12 accompanied the victim at one time of occurrence was material witness. No doubt it is duty of prosecution to examine the material witness, but who is a material witness and what is the effect of non examination has to be seen from case to case. In the present case, it appears from the FIR itself that the name and address of the person who joined the deceased and Babu Chakma was not known to the informant and her family members. The accused in his statement under Section 313 Cr.P.C. also without naming stated that there was another man with a motor-cycle and he left. Thus, it is not a case where adverse inference can be drawn by not examining such a witness. The evidence adduced by PW1, 2, 3 & 5 cannot be brushed aside for non-examination of one of the material witnesses whose identity could not be disclosed. 22. The judgment passed by the Trial Court is thus upheld. 23. The appeal is dismissed. 24. In view of judgment passed in Criminal Appeal No. 93(J)/2005 and in the light of judgment passed in the case of Binod Karmakar Vs- State of Assam 2012(1) GLT 693 with regard to compensation to the dependants of victim under Section 357 A

13 13 Cr.P.C. as an interim measure the State Government is directed to deposit an amount of Rs.50,000/- (Rupees Fifty Thousand) only with the District Legal Service Authority, Tinsukia. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependent (s), who suffered loss and injury as a result of death of the deceased and also if such dependent(s) or legal representative(s) need any rehabilitation. Upon such enquiry, if it is found that the dependent(s), if any, need rehabilitation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. It is made clear that if the District legal Services Authority, after due enquiry, arrive at the findings that there is no dependent(s) or that the dependent(s) of the deceased/victim does not require any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs.50,000/-, without delay, in favour of the State Government. 25. Send back the LCR alongwith the copy of this judgment. JUDGE CHIEF JUSTICE sds