ANIL PHUKAN Vs. STATE OF ASSAM

JUDGEMENT

(1.) Anil Phukan and his brothers Mahendra Phukan and Jojneswar Phukan were tried for an offence under Section 302/34 IPC for the murder of one Trinayan Chandra Baruah on 21-3-1976 at about 8 p.m. The learned sessions Judge convicted all the three brothers for the said offence and sentenced each one of them to suffer imprisonment for life. An appeal was preferred by all the three brothers against their conviction and sentence in the Gauhati High Court. A Division Bench of that court vide judgment dated 6-11-1984 upheld that conviction and sentence of above three. A Special Leave Petition (Cri.) No. 561/ 80 is preferred by Mahendra Nath Phukan and Anil Phukan, the third brother Jojneswar, however, did not file any special leave petition. On 2-9-1985, the special leave petition as regards Mahendra Nath Phukan was dismissed while notice was issued in the petition as regards Anil Phukan. Subsequently, on 29-10-1985, special leave was granted to Anil Phukan and on 29-4-1986, he was also directed to be released on bail to the satisfaction of the Chief Judl. Magistrate, Golaghat, Assam. We are, therefore, at this stage concerned only with the criminal appeal, by special leave, of Anil Phukan.

(2.) In brief, the prosecution case is that the appellant, Anil Phukan had borrowed a sum of Rs. 450/- from Trinayan Chandra Baruah, deceased and had executed two hand notes Ex. 7 and Ex. 8, promising to repay the amount on 21-3-1976. However, he did not repay the amount. On 21-3-1976, the deceased accompanied by his nephew, Ajoy Baruah PW 3, proceeded to the village of the appellant and as he was getting late, Ajoy Baruah PW 3 carried with him a torch light. The distance of the house of the deceased from that of the appellant is about one furlong. Anil appellant was present in the fields in front of his house and on being asked as to why he had not come to return the money, he asked them to wait there and proceeded towards his house. Later on, when Anil did not return for some time, the deceased along with Ajoy PW 3 proceeded towards the house of the appellant when they found all the three brothers coming towards them variously armed. Mahendra had a crowbar while Jojneswar had a crooked dao and Anil a kupi dao. Ajoy PW 3 apprehended some danger from the appellant and his brothers but his uncle told in that since they had done no wrong, they need not be afraid of any assault. On coming near the deceased and Ajoy PW 3, Mahendra, who came first, gave a blow to Trinayan on his head with the crowbar, the other two brothers also allegedly assaulted the deceased thereafter. Ajoy PW 3 pulled the deceased towards his house and implored the accused not to assault him. At the asking of his uncle, Ajoy PW 3 ran away to his house and gave the information to the wife of the deceased PW 5 Debayani Baruah, about the occurrence. He also narrated the occurrence to PW 4, Bijoy Baruah. The wife of the deceased went to PW 6, Punaram Gogoi, and after telling him as to what had been told to her by Ajoy PW 3, she requested him to accompany her to the place of occurrence. On reaching the place of occurrence, they found Trinayan lying on the spot with injuries on his person but he was still alive. PWs Bijoy and Ajoy brought a bullock cart from Sabharam Bora PW 7 and after lifting the body of Trinayan with some difficulty brought it to his house and kept it in the verandah. However, before any medical aid could be provided, the deceased succumbed to the injuries at night. The first information report was lodged at Golaghat Police Station the next day in the afternoon at 12.30 p.m. by Surendra Nath Gogoi PW 2. During the investigation, some weapons including an axe were seized from the house of Mahendra accused. On the same day, Mahendra was arrested at about 6.45 p.m. The other two .brothers Anil and Jojneswar surrendered subsequently in the court. The 1.0. prepared the sketch plan of the place of occurrence and sent the body for post-mortem examination. The autopsy revealed that the deceased had two incised injuries on the head besides one swelling and an injury on the inner part of his thigh. The prosecution in all examined 12 witnesses to connect the accused with the crime.

(3.) This case primarily hinges on testimony of a single eye-witness Ajoy PW 3 Indeed, conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye-witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts -generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye-witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. It is in the light of these settled principles that we shall examine the testimony of PW 3 Ajoy.