KAMAL GOGOI Vs. STATE OF ASSAM

JUDGEMENT

(1.) HEARD Mr. A.M. Majumder, learned senior counsel assisted by Mr. F.K.R. Ahmed, learned counsel for the appellant and Mr. K. Munir, learned Additional P.P., for the State of Assam, the sole respondent.

(2.) IN this appeal, the judgment and order dated 29.11.2002 passed by Sessions Judge, Dhemaji in Sessions Case No. 38 (DH)/97 has been challenged. By this impugned judgment and order, the trial court convicted the appellant under Section 307, IPC and sentenced him to suffer rigorous imprisonment for two years and to pay fine of Rs. 1,000 in default rigorous imprisonment for one month.

(3.) AT the very outset, Mr. A.M. Majumder, learned senior counsel for the appellant submits that the conviction and sentence awarded by the learned trial court by the impugned judgment cannot sustain in view of absence of proof of the Dhemaji P.S. Case No. 104 of 1995 and also in absence of proof of the command issued by the Officer-in-charge of Dhemaji Police Sta-tion-II, to the first informant, PW8, Sri Sibaram Morang to investigate the case as indicated. The second leg of argument advanced by Mr. A.M. Mazumder learned senior counsel is in respect of non-production of the torchlight, the means of recognition of the accused at the time of occurrence. It is argued by him that occurrence admittedly took place during night time at about 9.45 p.m. Except witness Sibaram Morang (PW8) none of the witnesses accompanied said Sibaram Morang did state before the trial court on oath that they had the opportunity to recognize the assailant, therefore, according to Mr. A.M. Majumder, learned senior counsel, the claim of PW8 that he recognized the assailant, the appellant herein through means of the torch light which was at that time with him though a material piece of evidence, to take a consistent view that the appellant Kamal Gogoi had been recognized by PW8, Sibaram Morang, the informant with the help of the torch that was with him at the relevant point of time, cannot be believed in absence of production of torch light at the trial. According to Mr. Mazumder, learned senior counsel, this material lacuna appearing in the face of the record, cannot take the place of proof under section 307, IPC against the appellant. In respect of registration of Dhemaji P.S. Case No.104 of 1995 under Section 394 it is stated by PW8, Sibaram Gogoi, the informant that on 30.6.1995 at 9.45 p.m. one of the constables of Dhemaji Police Station appeared before the police station and complained that appellant-Kamal Gogoi along with Piti Gogoi, Pankaj Konwar and Bhaikon Dihingia @ Pranjal had been to his house and had taken away the entire salary after assaulting him mercilessly. On this information, the Officer-in-Charge of Dhemaji Police Station entrusted investigation of the case and he immediately along with Binanda Baruah, Gyandhar Deuri and Naren Sonowal all constables proceeded to the place of occurrence. This piece of evidence is not supported by any documentary evidence whatsoever. The prosecution was. unable to prove the concerned G.D. Entry in respect of information given by the Constable, nor the first information report lodged by the constable, nor any commanding note of the Officer-in-Charge of the Dhemaji Police Station concerned in regard to movement of PW8 to the place of occurrence along with some other constables namely, Binanda Baruah, Gyandhar Deuri and Naren Sonowal. Unless the fact of institution and lodgment of FIR basing which Dhemaji P.S. case No.104 of 1995 was stated to have been registered, the factum of proceed to the place of occurrence by PW8 along with constables named above remained not proved by the prosecution. It also failed to prove the G.D. Entry as well as the command in respect of institution of the case and proceed to the place of occurrence as well Mr. Mazumder, therefore, taking these material defects in the prosecution case urges this court that the case of the prosecution cannot stand in its way in view of lapses on the part of the prosecution to prove these facts. From the materials available in the case record and the concerned case diary this court is unable to locate such FIR lodged by one of the constables of Dhemaji Police Station in regard to his assault on the night of 30.6.1995 at 9.45 p.m. by the appellants along with others whose names are indicated herein before the G.D entry in respect of filing of the first information report by one of the constables and the G.D.E. commanding PW8 to proceed to the place of occurrence after registration of the case. These in combination make the prosecution case doubtful whether on the relevant night and time Sibaram Morang (PW8) did actually proceed to the place of occurrence on connection with the investigation of the Dhemaji P.S. case No. 105 of 1995 or not.