STATE OF ASSAM Vs. BHABANANDA SARMA AND ORS.

JUDGEMENT

(1.) THE three respondents -(1) Bhabananda Sarma. (2) Phanidhar Sarma and (3) Harendra Nath Sarma; who are brothers were charged under Sections 302/34 and 323/34. Indian Penal Code and tried by the learned Sessions Judge. L. A. D. Gauhati. On consideration of the evidence on record, the learned Sessions Judge by his judgment and order dated 24 -7 -68 acquitted the Respondents on benefit of doubt and the present Government Criminal appeal is directed against this order of acquittal.

(2.) THE prosecution case may be briefly stated: On 10 -11 -67. at about 7 A. M. in the morning. Sashi Mohan Sarma (deceased) was proceeding to their field with some mustard seeds in a 'Kharahi' (basket) for sowing in the field. His elder brother Gopinath Sarma was also going with him taking some cattle to be tethered in the field. They proceeded together about half a furlong from their house by the village path when Gopinath with the cattle left the path and proceeded to nearby field for tethering the cattle and Sashi Mohan proceeded along the path towards their field where their ploughmen were working. In the meantime, the three accused persons, namely (1) Bhabananda Sarma, (2) Phanidhar Sarma and (3) Harendra Nath Sarma chased Sashimohan with weapons in their hands, Bhabananda had a lathe in his hand. Phanidhar had a 'caliber' (a wooden hammer with a long handle for breaking clods of earth) and Harendra had an iron rod in his hand. Having been so chased by the accused persons. Sashimohan ran towards his brother Gopinath raising alarm all the way.

(3.) THE defense of accused Phanidhar and Harendra was that of denial and alibi and the defense of accused Bhabananda was that of exercise of right of private defense of person. Accused Bhabananda in his statement under Section 342 Criminal Procedure Code stated that on the day of occurrence, Gopinath and Sashimohan chased him while he was going to tether cattle and gave blows on his back. As he shouted for help, some people came. Being helpless, he picked up a 'caliber' lying nearby and brandished it around and he did not know on whose person it struck. According to Bhabananda the other two accused persons were not present at the place of occurrence. Phanidhar and Harendra in their statement under Section 342. Criminal Procedure Code stated that they were not at the place of occurrence but on hearing alarm raised by one Sarbananda both of them went to the place of occurrence.