BHANDA GARH Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE presumption of innocence is a fundamental tenet of our criminal jurisprudence. It has, too, its own basic facet. It is this facet which is manifested in the anxiety of the Courts to ensure a fair trial based on fair procedure. The accused is entitled to the benefit of doubt based not only on the evidence produced in the case but based also on infraction of any procedural safeguard enjoined by law in the matter of conduct of investigation as well as prosecution. It is the duty of the Court to see if the evidence produced in the case is tainted in any manner, factually or legally and in a case where the accused is indicted on a charge of murder exposing him to the extreme penalty, this duty assumes signal significance. Indeed, in several decisions of the apex Court the danger of adopting a computarised approach in such cases has been vocally projected. We have been invited to make this prefatory remark in this case because of the strong plea forcefully pressed by the learned Public Prosecutor imploring us to uphold the conviction ignoring what he has termed minor discrepancies in the evidence and minor procedural infractions. Before we turn to the facts of this case we might as well add that it is this plea which provoked us more particularly to subject the evidence in the case to microscopic examination and also to consider the effect of all the procedural infractions which came to our notice in this case.

(2.) ON 29 -3 -79 at 11 A.M. P.W.1 Jag dish Gowala lodged an FIR that the dead body of his brother Dilip Gowala was lying by the side of the road at Line No.14 of Lembuguri Tea Garden with a "piercing" injury in the chest. In view of the cryptic report he was questioned by the Officer -in -Charge of the Police Station. The questions as well as the answers are recorded on the body of the FIR itself. In reply to the query as to the cause of the death the informant stated that on the preceding night at about 7 P.M. his brother had gone to the residence of Ganesh, a co -villager, to recite Kirtan there but he did not return. In the morning at about 4 A.M. another co -villager, Giridhari, came to his house and informed him that "somebody" had killed his brother. He further stated that he did not know who killed him. Be it noted that Ganesh above mentioned was examined as P.W.2 but his name was noted as Dhansa.

(3.) DURING the course of investigation which was taken up by P.W.6 he visited the place of occurrence on the same day and held inquest over the dead body which was identified by the informant. Thereafter, he sent the dead body for post -mortem examination. On 1 -9 -79 he arrested the appellant Bhanda at his residence. As he saw injuries on his person he sent him for medical examination. On the same day he seized one dagger and one half sleeve cotton shirt stained with blood. These were, according to the seizure lists, produced by the accused. These were sent through the Court for chemical examination and in due course report of the Serologist was received in respect thereto which was placed on record. On completion of the investigation charge -sheet was submitted against the appellant under Section 302, I.P.C. naming therein as many as 12 witnesses who were expected to prove the prosecution case. Among others two persons, Giridhari and Yudhistir, by name, also figured in the charge -sheet. On the basis of the charge -sheet the appellant was committed to the Court of Session to stand trial under Section 302, I.P.C.