SRI KARTIK ROY Vs. STATE OF ASSAM

JUDGEMENT

(1.) Both Mr. B Nath, learned Amicus Curiae and Mr. D Das, learned Addl. Public Prosecutor appearing for the State of Assam are heart at length.

(2.) This criminal appeal has been preferred against the judgment dated 28.04.2010, passed by the learned Sessions Judge, Kokrajhar, in Sessions Case No.56/2007, convicting the appellant under section 447/302 IPC and sentencing him to life imprisonment with a fine of Rs. 5000/- and, in default thereof, to suffer rigorous imprisonment for another 6 months and to undergo 3 months of RI for commission of the offence punishable under section 447 IPC. Both the sentences are to run concurrently. The case of the prosecution, briefly stated, is that on 23.11.2006 at about 11.30 a.m., the hen of the appellant was eating paddy in the courtyard of Krishna Roy, the wife of the informant. When the deceased had driven out the hen from her courtyard, the appellant was alleged to have trespassed on the courtyard of the informant and hacked the deceased to death by means of dao. In this assault, the appellant was alleged to have been aided by his wife, Smti. Balki Roy, who was, whoever, latter on discharged by the police. On the basis of the FIR lodged by the informant, the Officer-in-Charge of Kokrajhar Police Station on 23.11.2006 registered a regular case being Kokrajhar P.S. Case No.287/2006, under section 447/302 IPC and started investigation of the case. The appellant was alleged to have absconded till charge sheet was submitted by the police and, subsequently, surrendered before the learned Chief Judicial Magistrate, Kokrajhar. After investigating the case, the police submitted the charge sheet against the appellant under sections 447/302 IPC. On commitment, the learned Sessions Judge framed the charges against the appellant under Sections 447/302 IPC. The appellant pleaded not guilty to the charge and claimed to be tried. It may be noted at this stage that the wife of the appellant had been discharged by the learned Sessions Judge at the time of consideration of the charges.

(3.) In the course of trial, the prosecution examined 8 witnesses to bring home the charges against the appellant while no evidence was laid by the appellant. After examining the appellant under section 313 Cr.PC and after hearing both the parties, the trial court passed the impugned judgment of conviction and order of sentence. Assailing the impugned judgment, the submission of the learned Amicus Curiae is that the dying declaration allegedly made by the deceased to the PW Nos. 3, 4 & 5, upon which heavy reliance was placed by the trial court in convicting the appellant is highly suspect, inasmuch as the nature of the injuries sustained by the deceased on the vital parts of her body must have physically incapacitated her from making such a declaration even if she was still alive by the time they met her: the trial court did not properly apply its mind on this vital aspect of the evidence. It is also contended by the learned Amicus Curiae that the dao, which was allegedly used by the appellant for causing the death of the deceased, was never seized by the police, thereby creating serious doubt on the case of the prosecution. It is also the contention of the learned Amicus Curiae that the fact that PW Nos. 3, 4 & 5 saw the appellant coming out from the house with dao in his hand does not necessarily mean that he was the culprit, inasmuch, as they could not even say that there was blood stain in the dao. In any view of the matter, according to learned Amicus Curie, as the case of the prosecution suffers from many discrepancies, which could not be properly accounted for by the prosecution, the impugned judgment of conviction cannot be sustained in law.