DILWAR ISLAM LASKAR Vs. STATE OF ASSAM

JUDGEMENT

(1.) Both these two appeals are directed against the judgment dated 13.2.95 delivered by the learned Sessions Judge, Hailakandi in Sessions Case No. 19/94. The appellants stand convicted under Section 302 read with Section 149 IPC and sentenced to undergo imprisonment for life with fine of Rs. 5000/- each for offence punishable under Section 302/149 IPC. The appellants are also to suffer 10 months R.1. for offence punishable under Sec 302 read with Section 149 IPC and to pay fine of Rs. 500/- each and in default to suffer R.I. for 2 month for offence punishable under Section 148 IPC.

(2.) The prosecution case has its genesis in the missing report dated 19.11.90 filed at Police Station Lala by one Smti Phulmati Sahu, PW 1stating that her husband Man Kumar Sahu who had gone to one Rajab Mia of Samarikana on the previous day ie. 18.11.90 around 8 A.M. for collection of his dues did not return. On the basis of this missing report Ext. I a search for the missing Man Kumar started. Four days after this report in the evening the police got some clue that a dead body of a unknown person was burned at Kandinullah Dakshin Beel near Bandukmara T.E. The dead body was recovered on the next day i.e. 24.11.90 at around 11 a.m. in presence of a Magistrate and it was identified as of Mon Kumar by Nirmal Sahu PW 7. This recovery, what resulted in registration of crime u/s 147/148/149/302/201 IPC and the case was transferred to Hailakandi since it was a case within the jurisdiction of Hailakandi P.S. wherein it was registered as Hailakandi PS Case No.3/91 u/s 147/148/149/302/201/115 IPC. After recovery of the dead body the PW 1 presented a written report Ejahar on 25.11.90. On completion of investigation the police submitted charge sheet against 11 accused declaring one Moniruddin as absconder. The committal Court also by order dated 14.10.93 declared him absconder.

(3.) We have heard learned counsel Mr. M.Nath, appearing for the appellants and Mr. D.Goswami, learned P.P., Assam for the respondent State. Learned counsel for the appellants has assailed the impugned judgment mainly on the grounds that - the names in the missing report Ext-I should not be relied upon by the trial Court, the evidence of PWs 2,3 and 4 examined as eye witnesses suffers from inter se contradiction and inherent infirmities which should not have been relied upon by the trial Court, the written report (Ejahar) Ext 2 lodged by the PW 1 has been wrongly treated as First Information Report. It is hit by provision of Section 162 Cr.P.C. should not have been excluded from consideration. The post-mortem report has not been proved by the doctor PW S who conducted the postmortem examination on and thus this report should not have been relied upon by the trial Court. It was urged that the essential ingredients of the offence charged have not at all been made out by the prosecution.