GOPAL CHOWDHURY Vs. STATE OF ASSAM

JUDGEMENT

(1.) This Criminal Appeal is so preferred under Section 374 Cr. P.C. against the judgment of conviction and sentence passed by the AddI. Sessions Judge, Kamrup at Guwahati on 26-11-1991, in Sessions Case No. 67 (K-G)/88 by virtue of which the sole accused/appellant viz., Shri Gopal Chowdhury, is convicted under Section 304 part II. I.P.C. and sentenced to undergo R.I. for five years and to pay a fine of Rs. 3.000/- (Rupees three thousand only) in default to undergo R.I. for further six months.

(2.) Heard Mr. S.S. Sharma, learned counsel appearing for the sole accused/appellant and Mrs. K. Deka, learned P.P. representing the State of Assam figuring here as respondent.

(3.) All the points so taken as good grounds in this memo of appeal are pressed into service and it is emphatically argued that in the background of the facts and circumstances of the instant case, the judgment of conviction is bad in law and hence this criminal appeal. By elaborating the arguments, it is further pointed out that the learned trial Court has rather drawn adverse inference and the learned trial Court even erred in relying upon the evidence of P.W. 2, Pradip Dutta, who, according to the prosecution, was the only eye witness to the alleged occurrence. It is pointed out that on no account, the evidence of P. W. 2 can be said to be trustworthy because of certain major contradictions cropping up and that being the position, in the background of the facts and circumstances of the case, the accused/appellant was and is entitled for acquittal. It is further submitted that out of the six prosecution witnesses examined in course of trial P.W. 1 is the first informant who is a hearsay witness, P.W. 2 is Pradip Dutta who claims to have seen the occurrence out his statement, as submitted, is full- of contradictions. P.W. 3 is the Medical Expert conducting the post-mortem examination over the dead body of Manmohan Dutta on 27-7-1985, when, as per the prosecution case, for the alleged occurrence taking place on 13-7 -1985 after doubt a week, Manmohan Dutta (Since deceased) succumbed to his injuries and breathed his last when he was so admitted in the hospital for treatment. By referring to the evidence of P.W. 3. Mr. Sharma the learned counsel for the accused/appellant also submits that the sequence of events taking place as coming from the mouth at P.W. 2 with that of the injuries said to have been sustained by Manmohan Dutta (Since deceased) do not find full corroboration with that of the injuries so found on the person of the deceased when the postmortem examination was so conducted. As regards P.W. 4 it is submitted that he happened to be a nearby shop keeper who can well be said to be a formal witness. P.Ws. 5 and 6 are the Police personnel one of them being the investigating officer. It is also submitted that by going through their evidence in no way anything can be taken out with regard to the occurrence particularly the accused/appellant assaulting Manmohan Dutta. Their evidence only reveal with regard to the inquest report prepared, investigation completed, charge sheet submitted and examination of same of the wit nesses under Section 161 Cr.P.C. In that background when, as submitted, the prosecution had failed to substantiate the charges so levelled against the accused/appellant, the learned Court below thus would not have convicted him under Section 304 Part II I.P.C. In this connection, attention is also drawn with regard to non- examination of some of the material prosecution witnesses. It is also pointed out that the unnatural conduct of the P.W. 2 would ha\Te well been kept in the mind of the trial Court while admitting him to be a trustworthy witness and furthermore when the charge was so framed under Section 302 r/w Section 34 I.P.C. and out of two of the accused facing trial one got acquitted in such circumstance, without altering the charge under Section 302 I.P.C. or 304 part I or part II I.P.C. the learned Court below has erred as to convict the accused/appellant under Section 304 part II I.P.C. when at the time of framing of the charge against the two accused persons, the case of the charge was commission of an offence in furtherance of the common intention and that common intention part being not proved relating to the meeting of minds prior to the occurrence, in that case, great prejudice is caused to the present accused/appellant being convicted without altering the charge dropping the same to be read with Section 34 I.P.C. in support of his contention. Mr. Sharma the learned counsel for the appellant has referred to a case reported in State of West Bengal v. Vindu Lachmandas Sakhrani alias Deru1. It is also pointed out that while dealing with the matter the Supreme Court has referred to reported cases in Prabhu Babaji Norloy v. State of Bombay2 and Krishna Govind Patil v. State of Maharashtra3. The learned counsel for the appellant has also referred to another reported case in Anil Phukan v. State of Assam4, on the pointed that while disposing off the matter banking on the evidence of a solitary eye - witness the Court has to take due precaution and has also to search relating to any other independent corroborating evidence supporting the prosecution story. In the instant case it is submitted that no such independent corroborating evidence is coming from the mouth of any of the witnesses on the point of occurrence.