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 the conviction and sentence of all the three. A Special Leave Petition (Crl.) No.561/85 was preferred by Mahendra Nath Phukanand 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 F'hukan. 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 Jud1. 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 sometime, 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 him 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 Trinyana lying on the spot with injuries on his person but he was still alivc. 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 P.W.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 I.O. 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.) AJOY PW 3, on his own showing, is the nephew of the deceased. He had accompanied the deceased to the place of occurrence when the later went to recover the loan from Anil appellant. This witness, therefore, is a relative of the deceased and an interested witness: Of course, mere relationship with the deceased is no ground to discard his testimony, if it is otherwise found to be reliable and trustworthy. In the normal course of events, a close relation would be the last person to spare the real assailant of his uncle and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and therefore, as a matter of prudence, we shall look for some independent corroboration of his testimony, to decide about the involvement of the appellant in the crime. Since, there are some doubtful aspects in the conduct of Ajoy PW 3, it would not be safe to accept his evidence without some independent corroboration, direct or circumstantial.