HARESWAR BARUA Vs. STATE OF ASSAM

JUDGEMENT

(1.) DECEASED Maneswar left his house for going to Gohpur on 4.2.82 to see his ailing aunt's husband. He was met on the way at Bhogpur Chariali Railway Station by the accused -Appellant who took him to the latter's house where he was made to consume liquor. It is the case of the prosecution that the accused thereafter wanted to take away the money which Maneswar was carrying to which the latter did not agree, whereupon there was an altercation between the two. The accused took out a dagger and gave blows on the person of Maneswar when he became unconscious and was carried on a bicycle and thrown by the side of a nearby river. Maneswar, however regained his senses and somehow crawled to the house of Raman Singh Deori (P.W. 5) and narrated the occurrence to him. Words were sent to the mother and sisters of Maneswar who come in the next morning whereafter the injured was taken to the State Dispensary where some first aid was given and brought back home where he succumbed to the injuries after two days. Information was lodged with the police by P.W. 2 on 7.2.82 which set it in action. After completion of invalidation, the accused was charge sheeted under Section 302 I.P.C. In the course of the trial, prosecution examined 9 witnesses and the learned trial Court after going through the evidence was satisfied that the injuries which caused the death of Maneswar had been inflicted by the accused; but having noted that as the occurrence had taken place on the wake of consumption of liquor by both the sides, and as there was no premeditation or intention to cause death, the Appellant was convicted under Section 304(II), also because, if proper treatment would have been given Maneswar would have perhaps survived. For this offence, the Appellant has been sentenced to rigorous imprisonment for five years and a fine of Rs. 500/ -.

(2.) SHRI Tanti, who has ably assisted the Court as amicus curiae, at first submits that the present is a case of clear acquittal inasmuch as there is no clinching evidence on record relating to the infliction of injuries found on the person of Maneswar by the Appellant. He places reliance in this connection on the statement in the F.I.R. where it was stated by P.W. 2 that Maneswar had died "due to assault by miscreants". This statement had been made after mother of Maneswar had met the informant on the night of 6.2.82, whereas the occurrence had taken place on 4.2.82. He also refers in this connection to Darshan Singh v. State of Punjab : AIR 1983 SC 554. What has been held in this decision is that the fact that the names of some accused are not mentioned in the F.I.R. is a circumstance which the prosecution has to explain, though it cannot be held as a rule of law that an accused whose name is not mentioned in the F.I.R. is entitled to acquittal. A perusal of the impugned judgment shows that the learned Sessions Judge took a view that P.W. 2 might not have named the Appellant in the ejahar for two reasons -first, he did not want to involve himself in the matter; and secondly, as appears from the evidence of the informant, the mother being in a very perplexed and shocked condition could not say anything about the name of the assailant. These explanations appear satisfactory, more particularly, the shocking states of mind of the mother which might have stood in the way of naming the assailant. Further, as the F.I.R can be used to contradict only the maker, we can use the same to contract the informant alone. I do not think that this fact or itself should sound the death knell, of the prosecution story, when it has been supported by independent witnesses like P.Ws. 3 and 4 who were Home Guard personnel at the relevant time, and so also by P.Ws. 5 and 6.

(3.) BESIDES these eye witnesses, we have on record the statements of P.Ws. 5, 6, and 7 who have deposed about the dying declaration of Maneswar. As already pointed out, Maneswar went crawling upto the house of P.W. 5 where he had appeared at about 2 A.M. and stated to the witness that he had been stabbed by the Appellant with dagger. P.W. 5 had then noted three injuries on the person of the deceased. On early dawn P.W. 5 brought the matter to the notice of P.W. 6, the Gaonbura, who has also deposed about the statement of the deceased that he had been assaulted with dagger by the Appellant. P.W. 7, mother of the deceased, has also testified about the statement of the deceased relating to his having been assaulted by the Appellant. It is a settled law that it conviction can be founded solely on dying declaration, if it inspires full confidence, which the declaration does in the instant case. This view was expressed affirmatively by the Hon'ble Supreme Court first in Khushal Rao v. State of Bombay : AIR 1958 SC 22 which has since been followed in innumerable decisions.