BHABA NANDA SARMA Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is an appeal under S. 2 (a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 by three persons who are brothers. On the 10th of November, 1967 at about 7.00 A.M. an occurrence took place in a village near Barpeta in Assam. The prosecution case was that Shashi Mohan Sarma, a person who lost his life as a result of the assault on him, in the company of his elder brother Gopi Nath Sarma, P. W. 2, was proceeding to his field with some mustard seeds in a busket. Gopi Nath was going with some cattle to tether them in the field. When they proceeded to some distance Shashi Mohan was chased by the three appellants, appellant Bhaba Nanda Sarma who was aged about 20 years at the time of the occurence was armed with a lathi, appellant Phanidhar Sarma had a dolibari (a wooden hammer with a long handle) and appellant Harendra Nath Sarma carried an iron rod in his hand. They all chased Shashi Mohan. Shashi Mohan ran towards his brother Gopi Nath raising alarm. Bhaba Nanda caught hold of both the hands of Shashi Mohan from behind. Thereupon, Phanidhar gave him a blow on his head with the dolibari. Shashi Mohan fell down. Thereafter Harendra struck Shashi Mohan on his head and other parts of his body with the iron rod. Gopi Nath tried to intervene. Bhaba Nanda cuaght hold of Gopi Nath also. Harendra assaulted him with the iron rod causing injuries. Shashi Mohan was taken to the hospital where he died at about 3.00 A. M. on the 11th of November, 1967 as a result of severe injuries caused to him by Phanidhar and Harendra. The injuries inflicted on Gopi Nath were all simple in nature. After chargesheet by the police and committal by the Magistrate, the appellants were tried in the Sessions Court for charges under Section 302 read with S. 34 and S. 323 read with S. 34 of the I. P. C. The trial Judge gave them the benefit of doubt and acquitted them. The State of Assam filed an appeal in the High Court of Gauhati. The High Court set aside the order of acquittal, convicted all the three appellants for the offence of murder of Shashi Mohan with the aid of S. 34 and sentenced each of them to imprisonment for life. Their conviction under S. 323 read with S. 34 was also recorded by the High Court but no separate sentence was imposed. Hence this appeal.

(2.) The eye witnesses of the occurrence were P. W. 2 Gopi Nath Sarma:P. W. 3 Danesh Ali:P. W. 4 Nur Mohammad and P. W. 6 Kurpan Ali. The High Court in its judgment has catalogued the main five reasons which led the Sessions Judge to make an order of acquittal in favour of the appellants. In our opinion the High Court was right in reversing the judgment of the trial Judge and interfering witht he order of acquittal. It did so well within the limits of its power and the law as enunciated by this Court in several decisions. The four reasons given by the learned Sessions Judge were of a flimsy nature. It did not justify the entertaining of any doubt in regard to the prosecution story on the basis of those reasons. One of the five reasons was that the P. Ws. did not state about the injuries of Bhaba Nanda and they were not explained by the prosecution. In our opinion the High Court has rightly not attached much significance to the alleged failure of the prosecution to explain the injuries on Bhaba Nanda. The injuries on his person were of a very minor nature, three of them being ecchymosis and one swelling of the root of right index finger. The evidence of the Doctor, D. W. 1 was not sufficient to prove that the injury on the right index finger was grievous in nature. The ecchymosis injuries, however, were all very simple. Bhaba Nanda did not claim in his statement under S. 342 of the Cr. P. C. 1898 as to with what weapon the injuries were caused on his person. He merely said that Gopi Nath and Shashi gave blows on his back. He did not attribute the right index finger injury as having been caused by either of the two. No defence witness was examined to give any counter version of the occurrence. Bhaba Nanda did not show his injuries to the Investigating Officer, as it apparent from his evidence, when he arrested him soon after the occurrence. No counter information was lodged with the police nor was any counter case filed. In a case of this nature before an adverse inference is drawn against the prosecution for its alleged suppression or failure to explain the injuries on the person of an accused, it must be reasonably shown that, in all probability, the injuries were caused to him in the same occurrence or as a part of the same transaction in which the victims on the side of the prosecution were injured. The prosecution is not obliged to explain the injuries on the person of an accused in all cases and in all circumstances. This is not the law. It all depends upon the facts and circumstances of each cae whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused. In the instance case the Sessions Judge was not justified in doubting the truth of the version given by the eye witnesses - three of whom were wholly independent witnesses. Gopi Nath was surely present on the scene of the occurrence as he himself had received the injuries in the same transaction. The High Court has rightly believed the testimony of the eye witnesses.

(3.) The question for consideration, however, is whether the conviction of all the three appellants under S. 302 with the aid of S. 34 of the Penal Code is justified in law.