Katakey, J.
1. This appeal, by the convict, is directed against the judgment of conviction dated 09.02.2011 passed by the learned Addl. Sessions Judge (FTC) No.1, Kamrup at Guwahati, in Sessions Case No.161(K)/2004, convicting the appellant under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for a period of 1(one) year.
2. The prosecution story in brief is that on 14.08.2000 at about 12.30 P.M. accused Kanak Boro being armed with deadly weapon, like dagger, entered into the courtyard of the informant, namely, Mukuta Boro (not examined) and assaulted his father Golok Boro resulting in his death on the spot. A G.D. entry was also made based on the information furnished by one Ranjit Boro (who has not been examined). A written F.I.R. was thereafter lodged by Mukuta Boro (not examined) on 14.08.2000 with the Officer-in-Charge of Hajo Police Station, based on which Hajo P.S. Case No.131/2000 under Section 447/302 IPC was registered. The police thereafter started investigation, during which the weapon of assault was recovered, accused was arrested, the statement of the persons acquainted with the facts were recorded under Section 161 Cr.P.C., inquest was done, the dead body was sent for post mortem examination. On completion of the investigation the police submitted the charge-sheet against the appellant under Section 302 IPC. The case being exclusively triable by the Court of Sessions, the accused was committed for trial to the Court of Sessions by the learned Judicial Magistrate, 1st Class, Hajo, vide order dated 26.05.2006. Sessions Case No.161(K)/2004 thereafter was registered. The charge under Section 302 IPC was framed in the said Sessions Case, which when read over and explained to the accused appellant, he pleaded not guilty and claimed to be tried. Hence the trial commenced.
3. During the course of trial the prosecution examined 8(eight) witnesses, which includes Smt. Ophi Bala Boro (PW-1), widow of the deceased Golok; Smt. Moina Boro (PW-2), daughter of the deceased, both of whom claim to be the witness to the occurrence; Sri Kubeswar Boro (PW-3), who came to the scene after the occurrence took place; Smt. Hiren Boro (PW-4) and Smt. Rohini Boro (PW-5), who were reported witnesses; Sri Debeswar Das (PW-6), Sub-Inspector of Police, who submitted the charge-sheet; Sri Ajmal Ali (PW-7), the investigating officer and Dr. B.C. Roy Medhi (PW-8), who conducted the autopsy on the body of the deceased Golok. The prosecution witnesses were duly cross-examined by the defence. The statement under Section 313 Cr.P.C. of the accused was also recorded. No defence witness, however, was examined.
4. The learned Addl. Sessions Judge upon appreciation of the evidence on record passed the judgment of conviction as aforesaid. Hence the present appeal.
5. We have heard Mr. R.M. Choudhury, learned amicus curiae for the appellant and Mr. Dhanesh Das, the learned Addl. P.P., Assam appearing for the respondent.
6. Referring to the deposition of PWs-1 and 2, it has submitted by Mr. Choudhury, learned amicus curiae that though both of them have claimed that they have seen the occurrence, their version, however, cannot be believed, in view of the fact that while PW-1 has stated in her deposition that she was in the courtyard when the occurrence took place, PW-2 in her deposition has specifically stated that both of them were cooking food in the kitchen when the occurrence took place. It has also been submitted that PW-2 in her evidence has also stated that from the kitchen one cannot see outside, the wall being plastered with the mud. The learned counsel, therefore, submits that since PWs-1 and 2 were admittedly in the kitchen from where nothing is visible to outside, their presence in the place of occurrence is doubtful. The learned counsel further submits that though the prosecution tried to make out the case of recovery of the weapon of assault on being led by the accused, they did not even examine any of the seizure witnesses, being Ext.-1, to prove that any statement was made by the accused leading to the discovery of weapon of assault. That apart, the seizure of the weapon of assault also could not be proved by the prosecution, they having not produced any witnesses to the seizure. The learned amicus curiae further submits that the very basis for initiation of the criminal investigation has also not been proved by producing the G.D. Entry, which according to the prosecution was made based on the information furnished by one Ranjit Boro, who has also not been examined. The learned counsel, therefore, submits that based on such faulty investigation and also contradictory evidence of PWs-1 and 2, it is not safe to convict the appellant as has been done by the learned Addl. Sessions Judge.
7. The learned Addl. P.P., Assam, on the other hand, supporting the judgment of conviction recorded by the learned Addl. Sessions Judge, has submitted that there being no material contradiction in the evidence of PWs-1 and 2, who have seen the occurrence, the Court below has rightly convicted the appellant. It has also been submitted that it is evident from the deposition of PW-1 as well as PW-2 that though they were in the kitchen, at the time of occurrence, they immediately came out, on hearing the scream of the deceased Golok, and saw the occurrence. The learned Addl. P.P. submits that the deposition of PW-1 that she was present in the courtyard at the time of occurrence would therefore have no adverse effect on the prosecution story. The learned Addl. P.P. has submitted that since the FIR, which was lodged by Mukuta Boro, the son of the deceased, was proved by the investigating officer, PW-7, non-examination of Mukuta Boro would not make the prosecution story doubtful. Mr. Das, the learned Addl. P.P. submits that for non-examination of Ranjit Boro, based on whose information G.D. Entry was made, as well as for non-proving the G.D. Entry, the appellant may not be acquitted by setting aside the judgment of conviction and this Court may instead direct recording additional evidence under Section 391 Cr.P.C., so that no injustice is caused to the victims family as well as to the society.
8. We have considered the submissions advanced by the learned counsel for the parties.
9. The death of Golok, because of the injuries found on his person, as proved by Dr. B.C. Roy Medhi (PW-8) is not in dispute. The defence has also not challenged the injuries, mentioned below, which were found on the deceased Golok:-
"(i) One stab injury 3.5 x 2 cm present in front of chest X chest cavity deep 11 cm left from mid line and 6 cm above and left from left nipple.
(ii) One stab injury 3 x 2 cm x chest cavity deep in front of left chest 2 cm above left nipple and 8 cm left to mid line.
(iii) One stab injury 3 x 2 cm present in front and lateral side of abdominal wall 12 cm left from mid line and 7 cm above the anterior superior iliac spine.
(iv) One stab injury 2 cm x 1.5 cm on back of left chest wall 2 cm left from mid vertebral line and 14 cm below 7th cervical spine.
(v) One semi circular cut injury present on right side of forehead 7 cm long from regions to lateral end of right eye brow. The injury was muscle deep.
The opinion of the doctor that the cause of the death was heamorrhage and shock resulting from the injury sustained, which are ante-mortem in nature and caused by long sharp cutting pointed weapon and that the death was homicidal in nature, have also not been challenged by the defence."
10. The prosecution in order to prove the charge under Section 302 IPC against the appellant has introduced two witnesses, namely, Smt. Ophi Bala Boro (PW-1) and Smt. Moina Boro (PW-2), who claim to be the witnesses to the occurrence. While the PW-1 in her deposition has stated that at the time of occurrence she was in their courtyard, PW-2, however, did not support the version of PW-1. PW-2 in her deposition has stated that she along with her mother, namely, PW-1 were busy in cooking in the kitchen inside the house. PW-2 in her evidence has also stated that the wall of the kitchen being plastered with mud one cannot see what is happening outside the kitchen i.e. in the courtyard. PW-2 in her deposition has further stated that on hearing the scream she came out of the house and saw the occurrence i.e. inflicting blows by means of a dagger by the accused appellant. PW-2, however, never stated that PW-1 was present at that point of time. There are, therefore, contradiction on material points relating to the presence of either PW-1 or PW-2 at the place of occurrence, as the PW-1 has also not stated about the presence of PW-2 at the place of occurrence at the relevant point of time. That apart, though PW-1 during cross-examination has stated that the occurrence was also witnessed by PW-3 Sri Kubeswar Boro, apart from others, PW-3 in his evidence in clear terms has stated that he was not present when the occurrence took place.
11. The prosecution also did not prove the G.D. Entry allegedly made on 14.08.2000 based on the information furnished by Sri Ranjit Boro, who has also not been examined. That apart, the prosecution also did not examine the person, who lodged the first information report on 14.08.2000. Though the prosecution has also taken the plea of recovery of weapon of assault as shown by the accused as well as the seizure thereof, the prosecution did not, however, examine any witness to the seizure though they were three in numbers. The investigating officer (PW-7) has also not stated exactly what the accused has said, which lead to the discovery of the weapon of assault, as required under Section 27 of the Evidence Act. The prosecution, therefore, could not prove the recovery of weapon of assault based on the information furnished by the accused leading to this discovery.
12. The submissions advanced by the learned Addl. P.P. that to do justice to the society at large and to the victim in particular, this Court exercising the power under Section 391 Cr.P.C. should direct recording additional evidence, cannot be accepted having regard to the fact that the occurrence took place on 14.08.2000 and about 14 years have elapsed from the date of such occurrence. No fruitful purpose, therefore, would be served directing recording of additional evidence after 14 years. Moreover the accused appellant has suffered for last 14 years, out of which he was in custody for about 4(four) years, for the fault of the prosecution in not conducting the investigation as well as the trial in the manner in which the same ought to have been conducted.
13. In view of what has been discussed above, we are of the view that the prosecution has failed to prove the charge levelled against the appellant beyond all reasonable doubt. Hence the judgment of conviction recorded by the learned Addl. Sessions Judge (FTC) No.1, Kamrup at Guwahati, on 09.02.2011 in Sessions Case No.161(K)/2004 is set aside. The accused appellant is set at liberty, if not wanted in any other case.
14. Mr. R.M. Choudhury, the learned amicus curiae shall be paid his professional fee of Rs.7,500/- by the State Legal Service Authority within a period of 1(one) month from today.
15. The State Government in view of the scheme formulated by it under Section 357-A Cr.P.C. is also directed to pay a sum of Rs.1,00,000/- (Rupees one lakh) only to Smt. Ophi Bala Boro, widow of the deceased, by account payee cheque, within a period of 1(one) month from today.
16. The appeal is accordingly allowed.
17. Registry is directed to send down the records.
18. Registry shall also send a copy of this judgment to the Commissioner and Secretary to the Govt. of Assam, Political Department, for payment of compensation.