NIRMAL MORAN Vs. STATE OF ASSAM

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 29-5-97 passed by the learned Sessions Judge, Tinsukia in Sessions Case No. 42(T) of 1991 convicting the accused appellant under Section 302 of the Indian Penal Code and sentencing him to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 5,000.00, in default to undergo Rigorous Imprisonment for a further period of 2 years.

(2.) The prosecution case, in short, is that on 26-6-89 at about 6.30 AM, PW-3 Lakhikanta Baruah lodged a written ejahar (exhibit-1) in the Digboi Police Station stating that at about 7 p.m. in the evening of the previous day, while his son Arun Baruah accompanied by Bipin Moran (PW-4) was proceeding by the village path, the accused appellant along with some other members of his family, surrounding the aforesaid Arun Baruah and hacked him to death. In the ejahar, lodged, it has further been stated that PW-4 Bipin Moran reported the incident to the first informant. On receipt of the aforesaid ejahar Digboi PS Case No. 90 of 1989 was registered and investigation in respect thereof commenced. According to the prosecution, even before the ejahar (exhibit 1) was lodged in the Digboi Police Station, at about 9.30 p.m. of the day of occurrence i.e. 25-6-89, the accused appellant surrendered before the Makum P. S. whereafter he was forwarded to Digboi PS and was arrested. In course of investigation of the case, the other accused persons found to be involved in the offence were arrested and the alleged weapon of assault i.e. a Naga dao along with the wearing apparels of the present accused appellant were seized by police. On completion of investigation, police submitted charge sheet against seven accused persons, in all, including the present accused appellant. The case being exclusively triable by the Court of Sessions, the same was committed to the Court of the Sessions Judge at Tinsukia and a charge under Sections 148/149/302, IPC was framed against all the accused persons. As all the accused pleaded not guilty to the charge framed and claimed to be tried, the trial commenced, in course of which, the prosecution examined as many as 12 witnesses. The defence did not adduce any evidence. At the conclusion of the trial, the learned Sessions Judge by the impugned judgment and order convicted the accused appellant as aforesaid giving rise to the present appeal. It may be noticed at this stage that the other accused persons were acquitted by the learned Sessions Judge by the presently impugned judgment and order dated 29-5-97.

(3.) It may be appropriate, at this stage, to briefly consider, the evidence tendered on behalf of the prosecution in the course of the trial against the accused-appellant. PWs-1, 4 and 6 were examined by the prosecution as the alleged eye-witnesses of the occurrence. All the aforesaid 3 witnesses were declared hostile by the prosecution and cross-examined. In the judgment and order under challenge, no reliance has been placed on the evidence of the aforesaid 3 hostile witnesses and the learned Sessions Judge, in the facts and circumstances of the case, thought it proper to discard the evidence of the said witnesses. The evidence of PWs-2, 3 and 5 examined by the prosecution has a common thread. Though the aforesaid witnesses do not claim to have witnessed the occurrence, their version is that the incident was reported and described to them by PW-4 Bipin Moran. PW-4 who was declared hostile, however, denied being an eye-witness to the occurrence. In the aforesaid situation, the learned Sessions Judge thought it proper not to rely on the testimony of PWs-2, 3 and 5 examined by the prosecution in the case. PW-7 Smti Kuntala Bora who is a LDC in the office of the CJM, Tinsukia was examined by the prosecution to prove the handwriting and the signatures of the Magistrate who had recorded the confession of the present accused appellant. As the Magistrate who had recorded the said confession was examined as PW-10, the evidence of PW-7 would hardly be of any significance. PWs-9 and 11 are witnesses to the seizure of the alleged weapon of offence and the wearing apparels of the present accused appellant. PW-12, Khiresh Deuri, a police officer attached to Makum PS was examined by the prosecution to prove that the accused appellant had surrendered at the Makum PS along with a Naga dao at about 9.30 p.m. on 25-6-89. PW-13 is the Investigating Officer of the case.