Mr. F.H.Laskar Vs. Mr. B.B.Gogoi, Addl. P.P. Assam. - Court Judgment

Excerpt:
[mohan shantanagoudar j.] this writ petition is filed under articles 226 & 227 of the constitution of india praying to direct the respondents not to insist upon the petitioner to obtain license for the play of dart game, chess, rummy, snooker and carom, either under the karnataka police act or under the licensing and controlling of the place of public amusement order. bangalore city, 1989, as the above said games are declared as a game of skill by this hon'ble court.1. the appellant was convicted u/s 324 ipc and sentenced to undergo r. i. for 2 years and to pay a fine of rs. 500/- and in default of payment of fine to undergo r. i. for another 3 months by judgment and order dated 16. 9. 2003 rendered by the learned addl. sessions judge, cachar, silchar in sessions case no. 21/2003. the prosecution story in brief is that, on 7. 5. 03 at about 9 a. m. at bhubandar the deceased mihir das was working along with 3 / 4 other persons on the e & d embankment and at that time one sri badan nath (delinquent juvenile) went to tether a cow there which was protested by the deceased, mihir das. at that time the accused/appellant, bishu nath, armed with dao, came to the place of occurrence and started assaulting the deceased with a lathi. when the informant jayanta das came to the place of occurrence and tried to save the deceased, mihir das, the accused appellant assaulted him with a dao causing injury on his left hand, whereupon the informant raised alarm and the witnesses arrived at the place of occurrence and saw the occurrence, who helped him in shifting the deceased to hospital at dholai. but the deceased, mihir das succumbed to his injuries in the said hospital on the same day. the i. o. visited the place of occurrence and seized the following:-(1) one heavy bamboo piece length approx 3 3(three fit three inches)(2) one spade with a wooden handle length approx. 3 having some blood like stain on the handle. 2. the dead body of the deceased was sent to silchar medical college and hospital for post mortem examination. after completion of the investigation, the i. o. submitted charge sheet against the accused appellant u/s. 302/324/34 ipc. the name of the accused badan nath was not included in the charge sheet as he was declared as delinquent juvenile. the case being committed by the chief judicial magistrate, cachar, silchar, the learned addl. sessions judge, cachar, silchar on perusal of the records and materials framed charge u/s 302/324/34 ipc against the accused appellant to which he pleaded not guilty and claimed to stand trial. the prosecution examined in all 10 witnesses including the informant and the medical officer. the defence examined none. the learned trial court convicted and sentenced the accused appellant as stated earlier. 3. it may be noted that the investigation was undertaken on the basis of the fir ext. 5, filed by one jayanta das, younger brother of the deceased. in the aforesaid fir, he created an impression that he was present at the time of occurrence and he saw with his own eyes that his elder brother, mihir das was assaulted by the accused appellant by a dao. when he was being assaulted the informant rushed to the place of occurrence to save his brother but he was also assaulted by dao. there were 3 / 4 persons who helped mihir das. according to the informant, pw-3, the said incident took place at the e & d embankment this pw 3 deposed before the learned trial court that the alleged incident took place in front of his house while he was taking the cattle near the pwd road. arriving at the place of occurrence, he enquired from the accused appellant what has happened. the accused appellant did not respond at first, but when the informant enquired again, the accused appellant gave him a blow with some weapon. he did not mention about the use of dao by the accused. he also did not mention what type of weapon the accused used in assaulting the deceased. in cross examination he clearly stated that the occurrence took place at a vacant place meant for grazing. but he did not say that the alleged occurrence took place on the e & d. embankment he also made a statement that people came only after the occurrence and the deceased was brought by pw 4 and pw 5 from a place covered by water. 4. from the fir and the deposition of pw-3 it is found that there are serious contradictions as regards the material facts and particulars, particularly the place of occurrence, the persons present and the weapon used. besides, it is not clear whether pw-3, as claimed by him , he was present at the time and place of occurrence. it would be clear if the evidence of pw 4 and pw 5 are taken into consideration . pw 4, madan ree, is a neighbour of the informant. according to him, while he was taking his cattle for grazing , he heard the altercation between badan nath and mihir das. at that time pw 3 informant was not present. one madhu bahkti, pw 5 was present and both of them lifted the injured mihir das from water in presence of other people who have by the time arrived at the place of occurrence . in the cross examination, pw 4 alsocategorically stated that he found jayanta das in front of kalibari which is situated at a distance of about one furlong from the place of occurrence. the aforesaid statement of pw 4 has been substantially corroborated by pw 5 who was also present at the place of occurrence and lifted the injured mihir das from water. of course, pw 5 did not say anything in his deposition as to whether the informant jayanta das was present at the place of occurrence . 5. before coming to the injury report and post mortem report, it may be noted that, although pw 3 stated that his injured brother mihir das was taken to dholai hospital, there is no record that he was given medical treatment in the said hospital. however, the dead body of his brother was sent to silchar medical college hospital for post mortem examinaton. in this regard doctor homeswar sarma ,pw-1 who examined the dead body of the deceased deposed that he found the following injuries:- 1) incised wound semiluner shaped over postleteral surface of left elbow 7 c. m. long and the wound was stitched. 2) abrasion over right side of the forehead 4 c. m long in the sapittal plane and the distal end of the wound is lacerated. 3) contusion of right side of the scalp with haematoma. 4) communated fracture of right tempero-parietal bone in an area of 6x5 cm. 5) extra dural blood clot under the fracture over right tempero-parietal region 6 c. m in diameter pressing over the brain. 6) flattening of the brain under the clot and herniation of the mid-brain towards left. 6. as per the aforesaid post mortem report and opinion of the pw 1, there is no cut injury by any sharp weapon although the victim received injuries on his head and other parts of the body. this belies the evidence and claim of the informant pw 3 that the accused appellant used dao while assaulting the deceased and , as such the evidence of pw 3 cannot be accepted as trustworthy. the opinion of the pw 1 is that the cause of death was due to head injury. 7. the prosecution tried to project the pw 3 as an eye witness, but from his evidence, as discussed earlier could be found that he was not even present at the time of lifting the injured brother from water by pw 4 and pw 5. the evidence is otherwise i. e he was rather found in front of kalibari which is situated at a distance of about a furlong from the place of occurrence. in fact there was no eye witness to the said occurrence. if there is no eye witness, the prosecution must prove the case by circumstantial evidence. the prosecution did not try to prove its case by circumstantial evidence. it solely depended on the evidence of pw 3 with complete misconception that he was an eye witness. if the conviction is to be awarded on the basis of the circumstantial evidence, it must establish the chain of circumstances. here in this case, there is no such chain. no body has seen the accused appellant with the deceased before the alleged occurrence. there is nothing to show that the accused appellant was last seen with the deceased. 8. the law is clear that if the prosecution fails to prove the case by circumstantial evidence, it must establish motive behind the offence. such motive has not been brought on record in the evidence. the prosecution remained complacent with the evidence of pw 3 without trying to establish the motive behind the crime. in the aforesaid facts and circumstances of the case, there is no difficulty in coming to a conclusion that the prosecution miserably failed to establish its case beyond reasonable doubt, not to speak of beyond all shades of reasonable doubt. 9. in view of above, the impugned conviction and sentence as handed down on the accused appellant is liable to be quashed and set aside. it is accordingly quashed and set aside. the accused appellant is entitled to benefit of doubt and acquittal there under. 10. the appeal stands allowed. the bail bond stands discharged. send down the l. c. r forthwith.

Judgment:
1. The appellant was convicted U/s 324 IPC and sentenced to undergo R. I. for 2 years and to pay a fine of Rs. 500/- and in default of payment of fine to undergo R. I. for another 3 months by judgment and order dated 16. 9. 2003 rendered by the learned Addl. Sessions Judge, Cachar, Silchar in Sessions Case No. 21/2003. The prosecution story in brief is that, on 7. 5. 03 at about 9 a. m. at Bhubandar the deceased Mihir Das was working along with 3 / 4 other persons on the E & D embankment and at that time one Sri Badan Nath (delinquent juvenile) went to tether a cow there which was protested by the deceased, Mihir Das. At that time the accused/appellant, Bishu Nath, armed with dao, came to the place of occurrence and started assaulting the deceased with a lathi. When the informant Jayanta Das came to the place of occurrence and tried to save the deceased, Mihir Das, the accused appellant assaulted him with a dao causing injury on his left hand, whereupon the informant raised alarm and the witnesses arrived at the place of occurrence and saw the occurrence, who helped him in shifting the deceased to hospital at Dholai. But the deceased, Mihir Das succumbed to his injuries in the said hospital on the same day. The I. O. visited the place of occurrence and seized the following:-

(1) One heavy bamboo piece length approx 3 3(three fit three inches)

(2) One spade with a wooden handle length approx. 3 having some blood like stain on the handle.

2. The dead body of the deceased was sent to Silchar Medical College and Hospital for post mortem examination. After completion of the investigation, the I. O. submitted charge sheet against the accused appellant U/s. 302/324/34 IPC. The name of the accused Badan Nath was not included in the charge sheet as he was declared as delinquent juvenile. The case being committed by the Chief Judicial Magistrate, Cachar, Silchar, the learned Addl. Sessions Judge, Cachar, Silchar on perusal of the records and materials framed charge U/s 302/324/34 IPC against the accused appellant to which he pleaded not guilty and claimed to stand trial. The prosecution examined in all 10 witnesses including the informant and the medical officer. The defence examined none. The learned trial court convicted and sentenced the accused appellant as stated earlier.

3. It may be noted that the investigation was undertaken on the basis of the FIR Ext. 5, filed by one Jayanta Das, younger brother of the deceased. In the aforesaid FIR, he created an impression that he was present at the time of occurrence and he saw with his own eyes that his elder brother, Mihir Das was assaulted by the accused appellant by a dao. When he was being assaulted the informant rushed to the place of occurrence to save his brother but he was also assaulted by dao. There were 3 / 4 persons who helped Mihir Das. According to the informant, PW-3, the said incident took place at the E & D embankment This PW 3 deposed before the learned trial court that the alleged incident took place in front of his house while he was taking the cattle near the PWD road. Arriving at the place of occurrence, he enquired from the accused appellant what has happened. The accused appellant did not respond at first, but when the informant enquired again, the accused appellant gave him a blow with some weapon. He did not mention about the use of dao by the accused. He also did not mention what type of weapon the accused used in assaulting the deceased. In cross examination he clearly stated that the occurrence took place at a vacant place meant for grazing. But he did not say that the alleged occurrence took place on the E & D. embankment He also made a statement that people came only after the occurrence and the deceased was brought by PW 4 and PW 5 from a place covered by water.

4. From the FIR and the deposition of PW-3 it is found that there are serious contradictions as regards the material facts and particulars, particularly the place of occurrence, the persons present and the weapon used. Besides, it is not clear whether PW-3, as claimed by him , he was present at the time and place of occurrence. It would be clear if the evidence of PW 4 and PW 5 are taken into consideration . PW 4, Madan Ree, is a neighbour of the informant. According to him, while he was taking his cattle for grazing , he heard the altercation between Badan Nath and Mihir Das. At that time PW 3 informant was not present. One Madhu Bahkti, PW 5 was present and both of them lifted the injured Mihir Das from water in presence of other people who have by the time arrived at the place of occurrence . In the cross examination, PW 4 also

categorically stated that he found Jayanta Das in front of Kalibari which is situated at a distance of about one furlong from the place of occurrence. The aforesaid statement of PW 4 has been substantially corroborated by PW 5 who was also present at the place of occurrence and lifted the injured Mihir Das from water. Of course, PW 5 did not say anything in his deposition as to whether the informant Jayanta Das was present at the place of occurrence .

5. Before coming to the injury report and post mortem report, it may be noted that, although PW 3 stated that his injured brother Mihir Das was taken to Dholai hospital, there is no record that he was given medical treatment in the said hospital. However, the dead body of his brother was sent to Silchar Medical College hospital for post mortem examinaton. In this regard doctor Homeswar Sarma ,PW-1 who examined the dead body of the deceased deposed that he found the following injuries:- 1) Incised wound semiluner shaped over postleteral surface of left elbow 7 c. m. long and the wound was stitched.

2) Abrasion over right side of the forehead 4 c. m long in the sapittal plane and the distal end of the wound is lacerated.

3) Contusion of right side of the scalp with haematoma. 4) Communated fracture of right tempero-parietal bone in an area of 6x5 cm. 5) Extra dural blood clot under the fracture over right tempero-parietal region 6 c. m in diameter pressing over the brain.

6) Flattening of the brain under the clot and herniation of the mid-brain towards left.

6. As per the aforesaid post mortem report and opinion of the PW 1, there is no cut injury by any sharp weapon although the victim received injuries on his head and other parts of the body. This belies the evidence and claim of the informant PW 3 that the accused appellant used dao while assaulting the deceased and , as such the evidence of PW 3 cannot be accepted as trustworthy. The opinion of the PW 1 is that the cause of death was due to head injury.

7. The prosecution tried to project the PW 3 as an eye witness, but from his evidence, as discussed earlier could be found that he was not even present at the time of lifting the injured brother from water by PW 4 and PW 5. The evidence is otherwise i. e he was rather found in front of Kalibari which is situated at a distance of about a furlong from the place of occurrence. In fact there was no eye witness to the said occurrence. If there is no eye witness, the prosecution must prove the case by circumstantial evidence. The prosecution did not try to prove its case by circumstantial evidence. It solely depended on the evidence of PW 3 with complete misconception that he was an eye witness. If the conviction is to be awarded on the basis of the circumstantial evidence, it must establish the chain of circumstances. Here in this case, there is no such chain. No body has seen the accused appellant with the deceased before the alleged occurrence. There is nothing to show that the accused appellant was last seen with the deceased.

8. The law is clear that if the prosecution fails to prove the case by circumstantial evidence, it must establish motive behind the offence. Such motive has not been brought on record in the evidence. The prosecution remained complacent with the evidence of PW 3 without trying to establish the motive behind the crime. In the aforesaid facts and circumstances of the case, there is no difficulty in coming to a conclusion that the prosecution miserably failed to establish its case beyond reasonable doubt, not to speak of beyond all shades of reasonable doubt.

9. In view of above, the impugned conviction and sentence as handed down on the accused appellant is liable to be quashed and set aside. It is accordingly quashed and set aside. The accused appellant is entitled to benefit of doubt and acquittal there under.

10. The appeal stands allowed. The bail bond stands discharged. Send down the L. C. R forthwith.