PRASAD BARUAH Vs. STATE OF ASSAM

JUDGEMENT

(1.) This appeal arises out of judgment dated 4.7.94 delivered by the learned Sessions Judge, Tinsukia in Sessions case No. 52 (T) /90 thereby holding the appellants guilty of offence punishable under Section 302 IPC and sentencing him to undergo imprisonment for life with fine of Rs. 2000/-, and sentenced to undergo R.I. for 3 years with fine of Rs. 500/- or in default in payment of fine to suffer six months R.I.

(2.) The prosecution story in brief was that the accused who was aged about 22 years at the time of incident and was jobless used to live with his uncle and aunt Jainath Baruah and Dipti Baruah, On the fateful night of 12.1.90 while PW-2 Smti. Renu Sarmah was busy in preparing cakes for Bihu Festival she heard cutting sound coming from the house of the deceased. She came out to sec as to what had happened. Her husband PW-1 Promod Sarmah was in a adjoining room. They were tenants of the deceased coupule. As PW-2 was coming out from her room, the accused have said to have attacked her with a Dao aiming at her head, she had a providential escape as the dao blow instead of straightway falling on her head strucked against a beam. Yet Smti. Sarmah sustained injury on her hand in her bid to protect herself from dao blow. She was in fact referred by the police for medical examination, but no such record has been placed before the Court, Be that as it may, when the wife was under attack her husband PW-1 rushed from behind and caught hold of the accused. Both of them cried for help but there was no Response from the neighbours. So they went out for help and a few neighbours came 10 the scene of occurrence. The matter was reported co the Police by the PW-1 and a uase u/s 302 IPC was registered and taken under investigation. The accused in the meantime surrendered before the police. There is some dispute about his surrender to the police with the incriminating, weapon of attack or without it. This aspect will be dealt with at the appropriate stage. The accused was put to trial Prosecution examined as many as 8 witnesses to prove the charge against the accused. His defence at the trial was that he had gone lo Bazar on his return he found his aunt and butchered, he went to the tenants PW-1 & 2, who advised him to run away. He accordingly rushed to the police station, where he was booked as an accused. The trial Court rejected his defence plea and found him guilty of the offence charged and sentenced him as already noted above. Hence, this appeal from jail. Since the appellant was not assisted by a counsel Mrs. R. Borbora was appointed as amicus curiae, but regretable enough although appointed as the amicus curiae, the counsel has not turned up much less to assist the Court. We therefore, recquested Mr. B. Warrphira who was present in the Court room, who acceeded to our request with slight hesitation, seeking some time to go through the evidence. We have been taken through the evidence on record by the learned Amicus Curiae and with his help, as also that of the learned P.P. appearing for the State, this appeal is being disposed of.

(3.) Before proceeding any further it would be pertinent to note that it is a case of double murder with another added attempt at life of prosecution witness No. 2 Mrs. Renu Sarmah. Out of the 8 witnesses examined by the prosecution PW-2 is an eye-witness to the occurence so far as it relates to attack by the accused on her head. As for the assault on the deceased, is very rightly pointed out by the learned amicus curiae she does not claim to be an eye-witness to the assault on the deceased Jainath and Dipti. The prosecution case for that part of its story mainly depends on the evidence of PW-1 Promod Sarmah who saw the accused coming out of the room with dao in his hand and that of his wife PW-2 who was attacked by the accused. Apart from these two witnesses there was two other witnesses namely Jiten Saikia PW-5 who was informed by PW-1 that the accused had come to assault him. On being so informed, he rushed to the place of occurence and found some other persons from the locality that the couple Joinath and Dipti had been killed and lying dead. Learned amicus curiae argued that the trial Court by adopting a distorted line of reasoning as conjecture has arrived at the finding to the effect that it was none else than the accused who had killed Joinath and Dipti. This approach on the part of the trial Court has come under severe attack. According to the learned amicus curiae there is no legally reliable evidence available on record to sustain the appellant's conviction which is based on a faulty reasoning adopting a process of elimination. Learned amicus curiae questioned the appellant's conviction that merely because no one else had motive and opportunity or excess to the place of occurrence the accused has been convicted, pausing a question as to what evidence had the prosecution had adduced in proof of motive? he submitted that it is based on very slender evidence. Referring to the statement of PW-2 who testified about same quarrel between the deceased and the accused who was jobless, it was contended that even if this quarrel is believed or accepted, it is not a motive strong enough to impel some one to commit murder of his uncle and aunt who had provided an unemployed youth with shelter. As for opportunity and accessibility to the place of occurence it was strongly urged that the prosecution has failed to establish the inaccessbility of any one other than the accused. Merely because he was jobless and staying with his uncle it would be too hazardous to reach at the conclusion that it was he and he alone who committed murder of his uncle and aunt.