DISTRICT : SIVASAGAR.

IN THE COURT OF THE SESSIONS JUDGE AT SIVASAGAR ::::::

Ref. :- Sessions Case No.290 (S-S) 2013

(Arising out of G.R. Case No.1555/2013)

U/S 302 of the IPC.

Present :- Sri S. Khound,

Sessions Judge,

Sivasagar.

The State of Assam : Prosecution

-Vs-

Sri Gyan Pd. Saikia : Accused

APPEARANCE :

For the prosecution/State of Assam : Mr. A. K. Bora, P.P.

Sivasagar.

For the accused : Sri. D. K. Gohain, Advocate.

(State defence counsel)

Dates of depositions : 21.04.2014, 21.05.2014, 16.09.2014,

29.04.2015, 10.08.2015, 29.09.2015,

01.03.2016, 28.07.2016.

Date of argument : 19.09.2016

Date of Judgment : 06.10.2016

J U D G M E N T

1. Accused Sri Gyan Pd. Saikia, S/O Late Thaneswar Saikia, resident of Tingiripam

Abhoipuria Gaon under Amguri Police Station in the District of Sivasagar, here in this case has

been put on trial to answer the charge U/S 302 of the Indian Penal Code ( in short the 'IPC').

2. The facts as disclosed in the First Information Report ( in short the 'FIR') was that

on 30.08.2013 informant Sri Prahlad Karmakar, S/O Late Leathu Karmakar of Tingiripam

Abhoipuria Gaon under Amguri P.S lodged an FIR before the O/C of Amguri P. S. to the effect

that on 28.08.2013, at about 8.00 p.m. accused Gyan Pd. Saikia and Gobin Karmaka, who are the

inhabitants of Tingiripam Abhoipuria Gaon had been going for shopping from the residence of

Gobin Karmakar, but on the way quarrel took place between them and in the midst of quarrel

Contd....page—2

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accused Gyan Pd. Saikia pushed Gobin Karmakar into the river Namdang from the bridge and

since then Gobin Karmakar is untraced. Later on, i.e. on 30.08.2013 the dead body of Gobin

Karmakar found floating in Namdang river near the Mazjid of Tingiripam Abhoipuria Gaon.

Thereafter informant lodged Ejahar wherein 20 Nos of villagers put their signatures for taking

necessary action against the accused. Hence this case.

3. On receipt of the FIR, police registered Amguri P.S. Case No.131/2013 U/S 302

IPC and investigated into the case. On completion of investigation accused was charge-sheeted

under Section 302 of the IPC.

4. On appearance of the accused before the court of the learned committal

Magistrate, the learned Magistrate after furnishing copy of the case to the accused, and after

hearing submissions of learned counsels and notifying Public Prosecutor committed the case to

the court of Sessions.

5. On being receipt of the case on committal, and on appearance of the accused

before this court, my learned predecessor after hearing both sides and having found prima-facie

materials against the accused Gyan Pd. Saikia framed charge U/S 302 of the IPC and read over and

explained to the accused, to which the accused pleaded not guilty and claimed to be tried.

6. The prosecution to bring home the charge examined as many as eleven witnesses

including Medical Officer Dr. Sadhan Bora as P.W.4 and Investigating Officer Sri Nandeswar

Dutta as P.W.11, whereas defence examined none. The statement of the accused has been

recorded as per provision of Section-313 of the Criminal Procedure Code ( in short the 'Code').

Defence plea was of total denial of the charge.

THE POINT FOR DETERMINATION IS -

7. Whether on 28.08.2013, at about 8.00 p.m., at village Tingiripam Abhoipuria

Gaon under Amguri P. S. in the District of Sivasagar, the accused did commit

murder intentionally or knowingly causing the death of Gobin Karmakar, and

thereby committed an offence punishable U/S 302 of the IPC. ?

Contd....page—3

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DECISION AND REASONS THEREOF

8. To arrive at a judicial decision let the evidence on record be appreciated.

9. P.W.1 is the informant Sri Prahlad Karmakar who deposed that accused Gyan

Prasad is his neighbour and deceased Gobin Karmakar was his only son. About 8/9 months back

(from the date of deposition) P.W.1 along with his deceased son Gobin Karmakar and the

accused Gyan Pd. Saikia were sitting together in the house of P.W.1. Thereafter, at about 3 p.m. in

the afternoon accused took Gobin Karmakar with him and went out somewhere. Thereafter P.W.1

went to Namghar for prayer. At about 9 p.m. accused came alone to the Namghar and offered

prayer by lying on the ground. When P.W.1 asked the accused regarding Gobin Karmakar then

accused fled away. Since Gobin Karmakar did not return home as such P.W.1 searched for him

but he could not be traced out. On the very next day accused also came and P.W.1 along with the

accused went to the jungle in search of Gobin Karmakar but he could not be found . After three

days of the occurrence the dead body of Gobin Karmakar was recovered in Namdang river and

his body was identified by P.W.1 and at that time accused was not present there. Accordingly FIR

was lodged. In cross examination P.W.1 deposed that how his son died that he does not know. He

further deposed that accused and his deceased son worked together and both of them earned

money together and on the day of occurrence accused and deceased went to the bank of Namdang

river and at that time none of them consumed liqueur. P.W.1 further deposed that since the

deceased and the accused went out together at the time of occurrence as such P.W.1 suspects that

it was none but the accused who committed murder of the deceased Gobin Karmakar. P.W.1

further deposed that at the time of occurrence there was less amount of water in the river and one

betel-nut tree was used to connect both banks of the river and for crossing the river people used

the said betel-nut tree. P.W.1 also deposed that deceased Gobin Karmakar did not know

swimming. P.W.1 denied defence suggestion that during investigation he stated before police that

the deceased died since he could not swim.

10. P.W.2 is Sri Anil Buragohain who deposed that he knows the accused and the

deceased. About eight months back (from the date of deposition) the occurrence took place. On

that day P.W.2 heard that son of Prahlad Karmakar died in the Namdang river. Accordingly being

the V.D.P. Secretary he informed police and police came and recorded P.W.2's statement. P.W.2

deposed that how the deceased Gobin Karmakar died that he does not know. P.W.2 denied

defence suggestion that he stated before police that after recovery of the dead body Prahlad

Karmakar (P.W.1) attempted to assault P.W.2. Contd...page—4

Page—4

11. P.W.3 is Smti Sidheswari Saikia who deposed that accused is her nephew. About

one year back (from the date of deposition) the occurrence took place on which date dead body of

the deceased Gobin Karmakar was recovered from Namdang river. Later on Prahlad Karmakar

reported to P.W.3 that on the day of occurrence accused and the deceased went out together but

though the accused returned home but deceased Gobin Karmakar did not return. On being asked

the accused reported to P.W.3 that on the day of occurrence he along with deceased Gobin

Karmakar went to one grocery shop situated at the other side of the river and thereafter Gobin

Karmakar stayed there for repairing of his bicycle and accused returned home. Thereafter Gobin

Karmakar did not return home. On the very next day on being reported regarding the occurrence

by the accused and Prahlad Karmakar, P.W.3 reported the matter to police. Thereafter police

came and conducted inquest on the dead body of the deceased which was recovered from the

river Namdang. Ext.1 is the inquest report where Ext.1(1) is the signature of P.W.3. He further

deposed that police did not seize anything.

In cross examination P.W.3 deposed that he did not see the occurrence and he also

did not see the accused and the deceased going together on the day of occurrence.

12. P.W.4 is the Medical Officer Dr. Sadhan Bora who deposed that on 30th August

2013 he was working at Sivasagar Civil Hospital as Senior Medical & Health Officer. On that

day, on police requisition he did the post-mortem examination on the dead body of Gobin

Karmakar, male Hindu, age 21 years of Tingiripam Abhoipuria Gaon under Amguri P.S. in

connection with Amguri

P. S. Case No.131/2013 U/S 302 IPC. The dead body was accompanied by UBC 714 Rajen Gogoi

and relative Sri Sagar Kol and found as follows :

1. External appearance: An average build male dead body with black in complexion. Both eyes

and mouth closed. Rigor mortise present.

2. Injury : Lacerated injury over the both thigh. Underlying bone comes out.

3. Cranium and spinal canal : - Scalp, Skull and vertebrae – healthy. Membrane - congested.

Brain and spinal cord – congested and pale.

Liver, Spleen and kidney are congested and healthy.

4. Thorax: Walls, ribs and cartilages – Fracture right side rib 4, 5,6,7 thoracic.

Pleurae - Underlying pleura injured. Larynx and Trachea were

healthy.

Right lung - injury, left lung – healthy. Pericardium – congested.

Contd....page—5

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Heart – Left side chamber empty &right side full of blood.

Vessels – healthy. Injury – As described in Injury.

5. Abdomen : - Walls – healthy, peritoneum – congested. Mouth, pharynx, oesophagus – congested.

Stomach and its contents - contains food particles and water,

Small intestine and its contents – contains half digested food and

water.

Large intestine and its contents – contains faecal matter.

6. Discharge and deformity – absent.

7. More detailed description : An average build male dead body with black in complexion. Both eyes and

mouth closed. Lacerated injury over the both thigh with fracture (2 cm X muscle depth).

Lacerated injury over the right side of the chest (3 cm X skin depth) underlying the

thoracic ribs. 4,5,6,7 fracture, underlying right lung injury with pleural space full

of blood clot. All the organs were congested. All the above sign were ante-mortem in

nature.

8. Opinion : P.W.4 opined that cause of death was due to shock and

haemorrhage, as a result of injury. Ext.2 is the post-mortem examination report and

Ext.2(1) is the signature of P.W.4. Ext.2(2) is the counter signature of the then

Joint Director, Health Services, Sivasagar which is known to P.W.4.

13. P.W.5 is Sri Bimal Borgohain who deposed that accused is known to him.

Deceased Gobin Karmakar is also known to him. Occurrence took place about three years

ago (from the date of deposition), and on the day of occurrence accused and deceased

Gobin Karmakar came to the shop of P.W.5 and after having a cup of tea they went away

from his shop. On the following day he heard that Gobin Karmakar died and his dead body

was found in Namdang river. Police came and interrogated him. In cross examination

P.W.5 deposed that how the occurrence took place that he does not know. He denied

defence suggestion that on the day of occurrence deceased Gobin Karmakar came to his

shop under influence of liqueur.

14. P.W.6 is Sri Ananda Karmakar who deposed that accused is known to him.

Deceased Gobin Karmakar is also known to him. P.W.6 deposed that on the day of

occurrence, at about 6 p.m. in the evening he had seen the accused and deceased Gobin

Karmakar came together to attend 'Janmstomi' function which was observed in the house

of Bimal Borgohain. Thereafter P.W.6 came out from the house of Bimal Borgohain. Later

on he heard that the dead body of Gobin Karmakar recovered from Namdang river. Apart

from this he knows nothing regarding the occurrence.

Contd....page—6

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In cross by prosecution P.W.6 deposed that he has stated before police

that on 28.08.2013, at about 9 p.m. two boys of Tingiripam Abhoipuria Gaon came to his

betel-nut shop situated by the side of Mechagarh road under influence of liqueur and

one of the two boys who smaller was in drunken state, and at that time an altercation

took place between the said two boys in front of of his shop relating to monetary

transaction. He has stated that the boy who was taller asked for a chiggerate, but

P.W.6 told him that chiggerate was not available in his shop. Thereafter P.W.6 shut the

shop. The name of the boy who small was Gobin Karmakar. P.W.6 further stated that he

went to Namdang river for viewing the dead body of Gobin Karmakar and dead body of

Gobin Karmakar was recovered on the following day of the occurrence.

In cross by defence P.W.6 deposed that accused is known to him prior to

the occurrence. He denied defence suggestion that he did not disclose the name of the

two boys before police who had come to his shop on the day of occurrence. He also does

not know how Gobin Karmakar died. He denied defence suggestion that accused did not

come to his shop on the previous day of the occurrence.

15. P.W.7 is Sri Manglu Bhuyan who deposed that accused is known to him.

Deceased Gobin Karmakar is also known to him. Occurrence took place about two years

back (from the date of deposition). P.W.7 simply deposed that he only heard that the

dead body of Gobin Karmakar was recovered from Namdang river.

16. P.W.8 is Sri Surajit Ghatowar who deposed that accused and deceased Gobin

Karmakar is known to him. P.W.8 deposed that about three years back (from the date of

deposition), the dead body of Gobin Karmakar was recovered from Namdang river after

three days of the occurrence. P.W.8 deposed that on the day of occurrence Prahlad

Karmakar, the father of the deceased Gobin Karmakar apprised him that on the day of

occurrence in the evening accused and deceased Gobin Karmakar went out together from

the house of Gobin Karmakar after returning from work but Gobin did not return home.

In cross examination P.W.8 deposed that how Gobin Karmakar died that he does not know.

It is further deposed by P.W.8 that on the day of occurrence he did not see the

deceased Gobin Karmakar going to his working place along with the accused. Later on

P.W.8 heard that deceased Gobin Karmakar died by falling into river.

17. P.W.9 is Sri Jugesh Ghatowar who deposed that he knows the accused and

deceased Gobin Karmakar. About three years ago (from the date of deposition)

Contd....page—7

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Gobin Karmakar died. P.W.9 deposed that on the day of occurrence father of the deceased

reported him that on the day of occurrence Gobin had proceeded to his working place

along with the accused but Gobin did not return home. Later on dead body of Gobin

Karmakar was recovered from river after three days of the occurrence. In cross

examination P.W.9 deposed that he did not see the occurrence. He also did not notice that whether

on the day of occurrence deceased Gobin Karmakar proceeded to his working place along with the

accused or not.

18. P.W.10 is Sri Utpal Doley, the Circle Officer of Jorhat (West) Revenue Circle

deposed that on 30.08.2013 he was working as Circle Officer at Amguri Revenue Circle. On that

day, on police requisitions he held inquest on the dead body of Gobin Karmakar in connection

with Amguri P.S. Case No.113/2013 U/S 302 IPC on being identified by Prahlad Karmakar on the

bank of Namdang river. Thereafter dead body was sent to Civil Hospital for conducting post-

mortem examination. Ext.1 is the inquest report where Ext.1(1) is the signature of P.W.10. In

cross-examination P.W.10 deposed that in the inquest report (Ext.1) approximate date of time of

death of the deceased is recorded as 28.08.13 wrongly through oversight in place of 30.08.13.

19. P.W.11 is the Investigating Officer Sri Nandeswar Dutta who deposed that on

30.08.2013 when he was on duty as O/C of Amguri P.S., on that day, at about 11.30 a.m. he

received an Ejahar from the complainant Sri Prahlad Karmakar and registered Amguri P.S. Case

No.131/2013 U/S 302 IPC and he himself investigated the case. Ext.3 is the Ejahar where

Ext.3(3) is the signature of P.W.11 with note. During investigation dead body of Gobin Karmakar

was recovered from Namdang river. The dead body was found near the bridge of Namdang river.

P.W.11 further deposed that inquest was conducted on the dead body by the Executive Magistrate.

Thereafter dead body was sent for Post-Mortem examination. During investigation P.W.11

visited the place of occurrence, recorded statements of the witnesses as well as the complainant

and also prepared Sketch map. Ext.4 is the Sketch map where Ext.4(1) is the signature of P.W.11.

Thereafter P.W.11 collected the post-mortem report and on completion of investigation Charge-

Sheet was submitted against the accused U/S 302 IPC. Ext.5 is the Charge-Sheet where Ext.5(1)

is the signature of P.W.11.

In cross-examination P.W.11 deposed that there are 20 Nos of signatures of the

villagers in the Ejahar. P.W.11 further deposed that during investigation he did not record the

statement of all the witnesses. During investigation he recorded the statements of the witnesses

Gulook Ghatowar, Mongal Bhuyan, Sujit Ghatowar, Jogen Ghatowar who had stated before him

Contd....page—8

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that at the time of occurrence deceased went to respond to nature's call but he did not return. It is

further deposed by P.W.11 that he did not record the statement of the witnesses who had

seen the occurrence. He denied defence suggestion that without having any material, Charge-

Sheet is submitted against the accused person.

20. Above are the evidence led by the prosecution to establish their case U/S 302 IPC

against the accused.

21. To prove the charge under Section 302, IPC, the prosecution has to establish

beyond reasonable doubts :-

(i) That the death of some human being was caused,

(ii) That such death was neither suicidal nor accidental but it was homicidal,

(iii) That it was accused whose act or the consequence of his act, caused such death,

(iv) That the accused had no legal excuse or defence for causing such death or

for causing such injury.

(v) That the accused did such an act :-

(a) with the intention of causing death or

(b) with the intention of causing such bodily injury,

(i) as the accused knew it likely to cause death or

(ii) (a) that such an injury was sufficient in the ordinary course of nature to cause

death or (b) that the accused caused death by doing an act which he knew, in

all the probabilities, to cause death.

(iii) or the accused caused such bodily injury to such person as was likely to cause

death.

22. It is seen from the entire evidence on record that P.W.1 being the informant and

father of the deceased simply stated that he suspected the accused of committing murder of the

deceased Gobin Karmakar on the ground that accused and the deceased went out together and

thereafter though accused returned but deceased did not return and subsequently dead body of the

deceased was recovered in the Namdang river. In cross examination P.W.1 deposed that how his

son died that he did not see. P.W.2, P.W.3, P.W.7, P.W.8 and P.W.9 in their evidence categorically

stated that they neither saw the accused and the deceased together last alive and do not know how

the deceased died. P.W.5 Bimal Borgohain in evidence deposed that on the day of occurrence

accused and the deceased came together to P.W.5's shop and had a cup of tea there and again went

Contd....page—9

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away. P.W.5 did not deposed anything regarding any quarrel between the accused and the deceased

taking place at the time of their visit to P.W.5's shop and P.W.5 nowhere whispered regarding

unnatural behaviour of accused and the deceased during that time of visit. P.W.6 Ananda Karmakar

though admitted in evidence that he stated before police that on 28.07.2013, at about 9 p.m. at

night the deceased along with a tall boy came to the shop of P.W.6 in drunken condition and asked

for a chiggerate and during that time altercation between the deceased and the other boy took place

regarding sharing of money, but that part of evidence is not put by the prosecution to the

Investigating Officer during examination-in-chief to prove the same. Apart from that P.W.6 could

not say whether that tall boy who accompanied the deceased at the relevant time was the accused

or not.

23. Since there is no ocular evidence before the prosecution to prove the offence of

murder, hence the prosecution relied upon the following circumstances to establish the complicity

of accused for the offence of murder :

(i) The accused was last seen together with the deceased,

(ii) The accused had unnatural behaviour after the occurrence.

24. Before addressing the circumstances it is necessary to ascertain whether the death

of Gobin Karmakar was homicidal one, and if so, whether it amounted to murder. Suffice to

mention here that in evidence the Medical Officer opined that during post-mortem examination of

the deceased Gobin Karmakar on 30.08.2013 he found lacerated injury over the right side of the

chest underlying the thoracic ribs, and fracture underlying right lung injury. It is further opined by

the Doctor that he found in the stomach of the deceased half digested food and water. Cause of

death of the deceased was due to shock and haemorrhage. All aforesaid signs were ante-mortem in

nature.

25. Admittedly, the mere fact that the accused was last seen in the company of the

deceased would not necessarily lead to the irresistible inference that the accused must have

committed the murder. However, if the fact of “last seen together” is established and the accused

fails to explain as how his companion met with unnatural death, then this fact become highly

incriminating and an interference of the guilt of the accused can be drawn. But the complicity of

the accused must be proved beyond all shadow of doubt. Some additional circumstances must also

be proved by the prosecution to complete the chain of circumstances ending with the hypothesis of

the guilt of the accused and inconsistent with his innocence. Contd....page—10

Page--10

26. In the case of Balu -Vs- Balu (2003) 7 SCC 37, the Apex Court held that once

the fact of “last seen together” is proved , it is for the accused to explain the said circumstances. In

the case of Bodhraj -Vs- State of Jammu & Kashmir (2002) 2 SCC 45, the Apex Court has

opined that the theory of last seen together comes into play where the time gap between the point

of time when the accused and the deceased were seen last alive and when the deceased is found

dead is so small that possibility of any person other than the accused being the author of the crime

becomes impossible. It has further been opined that if there is long gap and possibility of other

persons coming between exists, in the absences of any other positive evidence to conclude that the

accused and the deceased were last seen together, it would be hazardous to come to a conclusion of

guilt in those cases. In catena of judgments Hon'ble Apex Court was of the view that unless there

was other definite evidence and motive, an accused could not be convicted merely on the fact that

at some point he was spotted with the victim. The 'last seen theory' should be applied taking into

consideration the case of the prosecution in its entirely and keeping in mind the circumstances that

precede and follow the point of being so last seen.

27. In the case of State of Karnataka -Vs- Chand Basha, the Hon'ble Apex Court

held that it will be hazardous to come to a conclusion of guilt in cases where there is no other

positive evidence to conclude that the accused and the deceased were last seen together.

28. In the instant case at hand though the alleged occurrence took place on 28.08.2013

but FIR was lodged on 30.08.2013 without any explanation regarding delay in lodging Ejahar.

Apart from that Medical Officer (P.W.4) examined the dead body of the deceased on 30.08.2013

i.e. on the date of recovery in the Namdang river and Doctor nowhere stated that injury is

homicidal in nature. There is a gap of two days from the time when the accused and the deceased

were seen last alive and the time when dead body of the deceased was recovered. The prosecution

could not establish that during the gap period of 2 (two) days there was no possibility of any other

persons coming between exists. Medical Officer (P.W.4) did not find any injury on the vital part of

the deceased and police also could not seize anything in this regard. Prosecution also failed to

prove the motive of the accused to commit murder of the deceased.

29. Regarding “last seen together” P.W.5 Bimal Borgohain deposed that on the day of

occurrence accused and deceased came together and had a cup of tea in the shop of P.W.5. P.W.6

Ananda Karmakar deposed that on the day of occurrence he saw the accused and deceased

Contd....page—11

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Gobin Karmakar coming together to attend 'Janamastomi' function which was observed in the

house of P.W.5 Bimal Borgohain but said Bimal Borgohain nowhere stated regarding said

'Janmastomi' puja being observed in his house. Though P.W.6 admitted that he stated before police

that on the day of occurrence the deceased and one boy came to P.W.6's house in inebriated

condition and altercated but P.W.6 nowhere mention that the other boy who accompanied the

deceased was none but the accused. In my view that part of evidence does not inspire any

confidence.

30. In evidence P.W.1 deposed that accused at 9 p.m. came to the 'Namghar' and

bowed and offered prayer, and when asked regarding whereabout of Gobin Karmakar then the

accused ran away. That part of evidence does not reflect abnormal conduct of the accused after

committing the alleged occurrence, since coming to 'Namghar' to offer prayer can not be said to

be abnormal conduct. Though P.W.1 deposed that on being asked regarding Gobin Karmakar

accused ran away but P.W.1 in his evidence clearly stated that on the next morning the accused

came to P.W.1 and he along with P.W.1 searched for Gobin Karmakar in the forest. In my view the

above piece of evidence does not make out a circumstances where from it can be assumed that

conduct of the accused after the alleged crime was abnormal. From the cross examination part of

P.W.3 it is seen that after the occurrence accused reported to P.W.3 that though the accused and

deceased at the time of occurrence went to a grocery shop situated at the other side of the river

Namdang but thereafter accused returned alone since deceased Gobin Karmakar refused to return

and stayed there to get his bicycle repaired. So in my view accused gave explanation regarding the

circumstances in which got separated from the deceased on the day of occurrence. It is seen from

the evidence of P.W.2 that he heard that on the day of occurrence deceased fell on the river and

died.

31. Admittedly at the time of occurrence deceased was drunk and he had to cross the

river with the help of a betel-nut tree which was used for crossing the river as reveals from

evidence of P.W.1. In such circumstances possibility of the death of the deceased by falling into

the river while trying to cross the river with the help of a betel-nut tree that too in drunk condition

can not be ruled out. P.W.1 also deposed that the deceased did not know swimming.

32. In the backdrop of foregoing discussions and on careful scrutiny of entire evidence

on record and keeping in mind factrs and circumstances of the case, I am of the view that

prosecution has failed to prove its case against the accused beyond all reasonable doubts to hold

Contd....page—12

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the accused guilty for a serious crime like a murder which is punishable U/S 302 IPC and which

invites minimum punishment of imprisonment for life. Accordingly, accused Gyan Pd. Saikia is

acquitted from the charge punishable U/S 302 of the IPC and set at liberty forthwith. Bail bond

stands cancelled.

33. Destroy seized articles, if any, in due course of law.

34. Judgment prepared in a separate sheets, pronounced and delivered in the open

court under my hand & Seal of this court on this the, 6th day of October, 2016 at Sivasagar.

( Sri S. Khound ),

Sessions Judge,

Sivasagar:

Dictated & Corrected by me

(S. Khound)

Sessions Judge, Sivasagar: