Judgment Session case No.167(JJ)18. UPEN Gogoi Vs State ...

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DISTRICT: JORHAT

IN THE COURT OF ADDITIONAL SESSIONS JUDGE, JORHAT

Ref.:- Sessions Case No. 167(JJ)/2018

G.R. Case No. 2404/2018

U/S. 307/326 of the IPC

State ...... Prosecution

Vs.

Shivaram Gogoi …........ Accused

APPEARANCES:-

For the Prosecution : Shri Siddique Ali, Addl. P.P.

For the accused : Smt. Rupali Rai Baruah, Advocate

Date of charge : 12.11.2018

Date of recording evidence : 04.12.2018, 19.07.2019 & 30.07.2019

Date of argument : 30.07.2019.

Date of judgment and order : 13.08.2019

P R E S E N T:

SMT P. KATAKI,

ADDL. SESSIONS JUDGE, JORHAT.

JUDGMENT

1. The brief fact of the prosecution as revealed from the ejahar is that on 03.08.2018, Smt. Aity Gogoi, wife of the victim lodged an ejahar to the effect that on 02.08.2018 at 5 p.m when her husband Upen Gogoi was on his way from

the Hahsora weekly market, the brother of her husband (her brother-in-law) namely, accused Siboram gogoi @ Suren Gogoi attempted to kill her husband near the deserted portion of the NH-37 near Upahar shop. When her husband

was shouting to save his life, she went out and saw that the accused was hitting her husband with a hammer. There was a tussle between her husband and the

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accused and as a result of which, the accused left her husband in an almost death state and ran away. When her husband with blood stain in his body, was

proceeding towards Hahsora Chariali to save his life, few people gathered there and took her husband to Teok FRU, however, on seeing his critical condition, doctor referred him to Assam Medical College, Dibrugarh for better medical

treatment. 2. On the basis of the said ejahar, Teok P.S Case No.332/18 dated

03.08.2018 was registered under Section 307 of IPC. Police conducted the investigation and submitted charge sheet against the accused under Section 307 of IPC. On appearance, copies were furnished to the accused as per provision of

Section 207 of Cr.P.C. As the offence against the accused is exclusively triable by the Court of Session, learned Chief Judicial Magistrate, Jorhat, committed the case to the Court of Hon’ble Sessions Judge, Jorhat for trial.

3. After receiving the case from the committal court, case was registered as Session Case No.167 (JJ) /18 and the Hon’ble Sessions Judge, Jorhat was pleased to transfer the case to this Court for trial.

4. Upon receipt of the case record as well as after going through the

materials available in the case record and after hearing the submission of the learned counsel for both sides, my learned predecessor framed the formal charge against the accused under Sections 307/326 of IPC. The contents of the charges

were read over and explained to the accused to which he pleaded not guilty and claimed to be tried.

5. In order to bring home the charge against the accused, the prosecution examined five (5) witnesses. After closure of the prosecution evidence, statement of the accused person was recorded under Section 313 of Cr.P.C

wherein he denied the allegation leveled against him and stated that he was innocent and he did not hit the victim who was his own brother and that nothing was recovered from his possession. Accused also declined to adduce any defence

evidence.

6. I have heard the argument advanced by the learned counsel for both

sides.

POINTS FOR DETERMINATION:

“A. Whether the accused Shivaram Gogoi on or about 02.08.2018 at 5 p.m,

at Hahsora Chariali near Upahar shop under Teok P.S assaulted the husband of the informant Upen Gogoi with a hammer on his head and chest and with such intention and under such circumstances that if by that act, he had caused the

death of the victim Upen Gogoi , he would have been guilty of murder and that he caused hurt to the victim Upen Gogoi and thereby committed an offence punishable under Section 307 of IPC ?

B. Whether the accused Shivaram Gogoi on or about 02.08.2018 at Hahsora

Chariali near Upahar Shop under Teok P.S caused grievous hurt to the victim Upen Gogoi, i.e., the husband of the informant by means of a hammer and thereby committed an offence punishable under Section 326 of IPC ?

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DISCUSSION, DECISION AND REASONS THEREOF:

7. I have heard the arguments of learned Addl. P.P. and the learned defence

counsel. I have also gone through the entire evidence available with the case record. Now, let me discuss the evidence on record to see as to whether the prosecution would be able to prove its case against the accused Shivaram Gogoi.

8. PW-1 Smt. Aity Gogoi deposed that she is the complaint of the case and

accused is her own brother-in-law. The incident took place on August, 2018. On the said date, she was at home. Her husband had gone to weekly market located at Hahsora chariali. When her husband was returning home from the market, accused hit her husband in front of Upahar shop with a heavy hammer on the

back of his head and crushed the bones of his chest by standing on his body. As her husband was late in returning home, she was waiting for him at the gate. At that time, she heard hue and cry and immediately she rushed to the place of

occurrence and saw that the accused was hitting her husband and one Gaurisankar arrived at the place of occurrence in his motor cycle who broke the scuffle took place between the accused and her husband. Accused ran away

leaving the hammer at the place of occurrence. At that time, the Upahar Shop was opened. PW-1 has further deposed that she saw injury in the head of her husband, the fingers of his hand was blotted and the bones of his chest were

broken. Later on, one of the shop keepers of that locality, namely, Dilip had seen the occurrence and he came to the place of occurrence and took her husband to the police station and therefrom, police shifted her husband to Teok Civil

Hospital. After providing preliminary treatment, the doctor of Teok Hospital referred him to Assam Medical College,Dibrugarh. On the next day, she lodged the ejahar at Bamunpukhuri outpost. Ext.1 is the ejahar and Ext.1(1) is his

signature. Police seized the hammer through Ext.2 (seizure list), Ext.2(1) is her signature thereon. She saw the M.Ext.1 (hammer) in the Court. As she was busy with her husband in the hospital, there was a delay in lodging the ejahar.

9. In her cross-examination, PW-1 stated that her house is located at a

distance of about 300 ft from the NH.37; that their land was acquired by the Government for the four lane project; there is no house located between the house of the accused and them (PW-1) and only a boundary wall in existence

between the two houses. Accused has a shop premises in front of his house, but the said shop is run by someone else. The land on which they are living is their ancestral property in the name of her father-in-law. Government had compensated her husband monetarily for acquiring their land, but she is not

aware of how much money has been distributed to her husband and the accused. She is the second wife of the victim Upen Gogoi. A heap of earth gathered by JCB existed nearby the place of occurrence ; the left leg of her

husband has defective and he has to bend to walk and takes the help of stick; there are some other shops, i.e. wedding hall, gift shop located below the Upahar shop and construction work of the building is going on at the upper floor;

there were a number of people present at the time of occurrence; they have to carefully cross the road; there is a distance of 50 ft from her gate to Upahar shop; her husband had taken a bag in his hand for shopping. She denied the

suggestion that her gate is not located at a distance of about 50 ft from the place of occurrence. PW-1 stated that her husband had taken the stick for shopping. She made her husband sit in the Mulla grocery shop and poured water

on his head. She was not aware as to whether there was any distribution of

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money between her husband and the accused received from the Government. She has further denied the suggestion that she falsely implicated the accused as

he asked for money received from the Government; that her husband was not hit by the accused at the place of occurrence with a hammer and that accused had not ran away from the place of occurrence leaving the hammer at the place of

occurrence and that she did not see the accused hitting her husband and her husband was not hit on the head and bones of his chest were not broken and that she did not go to the hospital. PW-1 stated that her house is situated near

the old 37- NH and the old NH-37 falls near the left side from Jorhat town (near the newly constructed portion of 4 lane Highway). PW-1 stated that she did not state before police that she made her husband sit in front of the shop.

10. PW-2 Bani Prabha Neog deposed that the complainant is her mother and accused is her paternal uncle. The occurrence took place on the 2nd day of August, 2018 at about 5 p.m. On the said date, she was present at her mother’s

house and her father had gone to Hahsora weekly market. When her father did not return home from market, her mother went on to the market. As her mother was late in returning home, she was waiting at the gate and at that time, she

saw that her mother was crying at the place of occurrence. She also went to the place of occurrence and saw her father was lying with blood stain on his body. Blood was oozing out from his head. Her father was not in a position to talk.

Then she called her husband through Mobile phone and her husband brought her father to Teok P.S in his car. Thereafter, her father was sent to Assam Medical College, Dibrugarh and her father was under medical treatment for 15 days. On

enquiry, her father told her that accused hit him with a hammer and her father was injured on his head, chest and hand. Police seized the hammer and she signed on the seizure list. Ext.2 is the seizure list, Ext.2 (2) is her signature

thereon.

11. In her cross-examination, PW-2 has stated that her father was a retired school teacher and he carries out agriculture with the help of hired workers. She denied the suggestion that she did not state before police that on the day of

occurrence, she was present at her mother’s house, her mother was crying and upon reaching at the place of occurrence, she did not see her father lying with blood stain on his person; NH 37 (old portion) is situated at a distance of about

100 mtrs from her mother’s house; the distance from the old NH.37 to the place of occurrence would be less than 100 mtrs; the occurrence took place at the newly constructed NH.37; there are a number of shops located apart from the

Upahar Shop; earth was hipped for construction purpose of the Four lane Highway; there are some other houses nearby the Hahsora Chariali; her uncle has a shop in front of his house; she never seen her uncle sitting in the shop. She also denied the suggestion that at the time of occurrence, her

uncle was not sitting in his shop. Police found shirt of her father with blood stain. She and her mother went to the place of occurrence; her mother had taken the hammer from the house. She further denied the suggestion that on the

day of occurrence, she did not come to the gate (of her mother’s house), she did not hear hue and cry and went to the place of occurrence; she did not see her mother crying; she did not see head injury of her father and blood was oozing

out from the head; she also denied the suggestion that her father was not in a position to talk; that her father was under medical treatment; that she falsely stated that on being asked about the occurrence, her father told her that the

accused hit him with a hammer for which he received injuries on his head, chest

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and hands. She further denied the suggestion that her mother falsely implicated the accused and she has deposed before the court as tutored by her mother.

12. PW-3 Dr. Dibakar Chaubey deposed that on 02.08.2018, he was working

as Registrar, Department of Surgery, AMCH, Dibrugarh. On that day, he examined the victim Upen Gogoi who came with the history of physical assault and was admitted in the Surgery Ward. There was history of loss of

consciousness and vomiting. On examination of the chest, there was decreased air entry on the left side, there was tenderness on left side of chest. The opinion of PW-3 after examination was grievous injury. Exhibit 3 is the report and exhibit

3 (1) is his signature.

13. In his cross-examination, PW-3 stated that he had not stated the age of injury in his medical report. The injury might have been caused sometime back. The lung was not properly inflated may be because of tenderness or pain in the chest. Tenderness can only be ascertained by clinical examination. Vomiting may

be caused as a result of wound sustained on the chest. Most of the injuries were sustained by the victim on the frontal side of the body. Injuries as caused to the victim can be caused by falling on rocky rough surface while walking in high

momentum.

14. PW-4 Upen Gogoi /victim deposed that complainant of the case is his wife and accused Sivaram Gogoi is his own brother. About one year back, at about 5 PM, he was on his way to buy tablets for his blood pressure from Pharmacy.

On his way, he fell down and became unconscious. He was not aware where he was taken and by whom. Next day regained he consciousness at the hospital. He got hurt on his feet and on the chest. The police had not inquired him in

connection with the present case.

15. At this stage the prosecution prayed to declare the witness as hostile. Upon hearing and considering the materials available on record, the prayer of the prosecution was allowed and the witness has been declared as hostile. In his

cross-examination by the prosecution, PW-4 denied the suggestion that he had stated before the police that on 02.08.2018 at 5 PM when he was coming towards his home from Hahchara Chariali after marketing, his brother Sivaram

Gogoi @ Suren Gogoi came towards him smiling near Upahar shop and he thought that he would tell him something. At that time, the hands of his brother were behind him and when his brother reached near him he did not say anything

but took out a iron hammer and hit him on the head to kill him and then he shouted “I am dying” and hearing his shouting his wife dragged him away and stopped the hammer from hitting his head. He was drenched in blood and the

incident was witnessed by people from the Upahar shop and other people. Later on, he became unconscious. He does not know what happened thereafter. He regained consciousness at AMCH, Dibrugarh. He denied the suggestion that he is

deposing falsely in Court to save his accused younger brother.

16. In his cross-examination, PW-4 stated that his left leg is not in proper working condition since childhood. He has to take support for walking. There were stones near the place where he had fallen down. The place was near four Lane Highway was being constructed and there were huge boulders. There was

discord between him and his accused younger brother on account of property and compensation for land taken for Four-lane highway. The discord is settled now. The present complaint has been lodged by his wife and he came to know

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about the same subsequently. The complaint was lodged by his wife due to mistake as a result of discord.

17. PW-5 Dilip Das deposed that he knew the accused as well as victim (P.W-

4) of the present case. They were from the same village. At the time of the incident he was present at his shop which is located at a distance of 30 meters from the place of incident. He saw the victim losing consciousness and falling on

the ground. He poured water on his head and informed the family members of the victim who took him away.

17. The cross-examination of PW-5 was declined.

18. From the evidence on record it can be seen that the PW-4 Upen Gogoi

who is the victim and the injured witness has himself stated that about one year back, at about 5 PM, when he was on his way to buy tablets for his blood pressure from Pharmacy, he fell down on the way and became unconscious. He

was not aware where he was taken and by whom. Next day regained he consciousness at the hospital. He got hurt on his feet and on the chest. In his cross-examination, PW-4 stated that his left leg is not in proper working

condition since childhood. He has to take support for walking. There were stones near the place where he had fallen down. The place was near four Lane Highway was being constructed and there were huge boulders. PW-1 also in her

deposition confirmed that a heap of earth gathered by JCB existed nearby the place of occurrence; the left leg of her husband has defective and he has to bend to walk and takes the help of stick.

19. Though PW-4 has been declared hostile by the prosecution, the evidence

of PW-4 has been supported by PW-5 Dilip Das who is the eye-witness of the incident. PW-5 has stated in his evidence that at the time of the incident he was present at his shop which is located at a distance of 30 meters from the place of

incident. He saw the victim losing consciousness and falling on the ground. He poured water on his head and informed the family members of the victim who took him away.

20. It is a settled principle of law that the statement of hostile witnesses is not to be brushed aside in toto and the Court can consider evidence of hostile

witnesses to corroborate other evidence on record. It is clearly well-settled that mere fact that a witness is declared hostile does not make him unreliable witness so as to exclude his evidence from consideration altogether but the said evidence remains admissible in evidence and there is no legal bar to base conviction or

acquittal upon the testimony of hostile witness if corroborated by other reliable evidence. The evidence of hostile evidence remains admissible and it is open for a Court to rely on the dependable part thereof as found acceptable and duly

corroborated by other reliable evidence available on record. 21. Though the prosecution has placed reliance on the evidence of PW-2 who

is the daughter of the victim and the complainant, she also denied the suggestion made by the defence that at the time of occurrence, her uncle was not sitting in his shop. From the suggestion given to PW-2 what can be inferred

is that at the time of the incident the accused was sitting in his shop. Thus, if the accused was present in his shop at the time of the incident, he cannot be present

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at the scene of occurrence at the same time more so when the deposition of PW-4 and PW-5 is taken into consideration.

22. PW-3 Dr. Dibakar Chaubey in his evidence deposed that the injury of the

victim was grievous injury, in his cross-examination, PW-3 stated that he had not stated the age of injury in his medical report and that the injury might have been caused some time back. Most of the injuries were sustained by the victim on the

frontal side of the body. Injuries as caused to the victim can be caused by falling on rocky rough surface while walking in high momentum. PW-4 has stated in his cross-examination that his left leg is not in proper working condition since childhood, he has to take support for walking and there were stones near the

place of occurrence was near the four Lane Highway which was under construction and there were huge boulders. Thus, it can be seen that the version of PW-4/Victim is also corroborated by the medical evidence on record.

23. On the other hand, it can be seen that PW-1 who is the complainant is an interested witness. Though PW-1 has stated in her deposition that a number of people witnessed the incident, her version is not corroborated by any of the

prosecution witnesses not even her daughter PW-2 who denied the suggestion made by the defence that at the time of occurrence, her uncle was not sitting in his shop. It can be seen that the complainant is the second wife of the victim and

there was discord between the accused and the complainant for property and compensation received for NH-37 Highway. PW-4 who is the husband of the complainant and victim in the present case that there was discord between him

and his accused younger brother on account of property and compensation for land taken for Four-lane highway. The discord was settled now. The present complaint has been lodged by his wife and he came to know about the same

subsequently. The complaint was lodged by his wife due to mistake as a result of discord.

24. Chapter 16 of Indian Penal Code deals with offences against human body.

As per Section 319 I.P.C. 'hurt' is described as under:

''Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt''.

25. Vide Section 320 I.P.C. 'hurt' will become 'grievous' under any one of the

following categories:

''First. - Emasculation.

Secondly. - Permanent privation of the sight of either eye.

Thirdly- Permanent privation of the hearing of either ear.

Fourthly. - Privation of any member or joint.

Fifthly. -Destruction or permanent impairing of the powers of any member or joint.

Sixthly. - Permanent disfiguration of the head or face.

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Seventhly. - Fracture or dislocation of a bone or tooth.

Eighthly. - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.''

26. Section 326 IPC reads as under:-

"326. Voluntarily causing grievous hurt by dangerous weapons or means.-- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

27. Punishment for 'hurt' depends upon the nature of injury and the nature of weapon used. 'Hurt' is commonly known as 'simple hurt/injury' is punishable under Section 323 I.P.C. However, when the said hurt was caused by a dangerous weapon or means then it is punishable under section 324 I.P.C. and if

the hurt is ‘grievous’ as defined in Section 320 I.P.C. then it is punishable under section 325 I.P.C. When such 'grievous' hurt has been caused by a

dangerous weapon further higher punishment is provided in Section 326 I.P.C.

28. In the present case, from the allegations leveled in the Ejhar and from the deposition of PW-1, it is seen that PW-1 has alleged that the accused crushed the bones of the chest of the victim by standing on his body. Now, if the said allegation is accepted as correct, the question that requires consideration by this Court is whether the expression "any instrument" used in Section 326

IPC includes kick, fist or blow by any other body part?

29. In Anwarul Haq Vs State of UP [(2005)10SCC581], the Hon’ble

Apex Court considered the expression "any instrument" in relation to Section 324 IPC and opined that the section prescribes a severe punishment where an offender voluntarily causes hurt by dangerous weapon or other means stated in

the section. The expression "any instrument which, used as a weapon of offence, is likely to cause death" when read in the light of marginal note to Section 324 means dangerous weapon which if used by the offender is likely to cause

death. The expression "any instrument" is used in relation to a weapon of offence. Similarly, in Mathai Vs State of Kerela [(2005) 3 SCC 260], the Hon’ble Apex Court opined that the expression "any instrument which, used as a

weapon of offence, is likely to cause death" has to be gauged taking note of the heading of the section. What would constitute a "dangerous weapon" would depend upon the facts of each case and no generalisation can be made. In view of the judgments of the Hon’ble Supreme Court in Anwarul Haq and Mathai

(supra), it is clear that the words "any instrument" as employed in Sec. 326, in my opinion, cannot be treated as body part. The language used in the said section is "voluntarily causes grievous hurt" by means of any instrument for

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shooting, stabbing or cutting or any instrument which is used as a weapon of offence. The grievous hurt is the result of blow given by an instrument. The

nature and gravity of injury alone is not sufficient to attract Sec. 326 unless it is shown that such grievous hurt is by means of any instrument or weapon mentioned in the section. In view of aforesaid, it is clear that as per language

employed in section 326 IPC, the body part cannot be treated as an instrument. An instrument has to be an outside mean/weapon and cannot be a body part and this count alone, the allegation that the accused crushed the bones on the

chest of the victim by standing on his body cannot be sustained.

30. Another allegation leveled against the accused as revealed from the

prosecution case is that the accused hit the victim in his head with an iron hammer and also broke the fingers of his hand with the said hammer. In this connection, it has come into notice of this Court that the weapon alleged to be used in commission of offence i.e. the iron hammer was recovered not from the

accused but taken by the Complainant herself to the police station at the time of lodging the Ejhar and thereafter seized by the police at the police station. As such, it is highly probable that the complainant planted the alleged weapon of

offence.

31. Section 307 of the Penal Code reads thus:

“307.Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

Attempts by life convicts.—When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.

Illustrations (a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section.

(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.

(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section.

(d) A, intending to murder Z, by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence in this section. A places the food on Z's table or delivers it to

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Z's servants to place it on Z's table. A has committed the offence defined in this section.”

From the perusal of the provision of Section 307 IPC it can be seen that the first part of Section 307 refers to “an act with such intention or knowledge, and under

such circumstances that, if he by that act caused death, he would be guilty of murder”. The second part of Section 307, which carries a heavier punishment, refers to “hurt‟ caused in pursuance of such an “act‟. The essential ingredients

for an offence of attempt to commit murder punishable under sections 307 IPC the most important ingredient is intention and knowledge. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with

some overt act in execution thereof. It is not essential that bodily injury capable

of causing death should have been inflicted.

32. Although the nature of injury actually caused may often give considerable

assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Court

has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in Section 307 IPC.

33. In State of Uttarakhand v. Jarnail Singh[S.L.P. (CRL.) No. 1651 of

2015], the Hon’ble Supreme Court held as under:

“17. In other words, in our view, the reasoning and the conclusion of the High Court in acquitting the respondent of the charges under Section 307 IPC and Section 25(1-A) appears to be just and proper as set out below and to which we concur and hence it does not call for any interference by this Court.

18. First, the parties involved in the case namely, the victim, his brother, who was one of the eye-witnesses with other two eye-witnesses and the accused were known to each other then why the Complainant-brother of victim in his application (Ex-P-A) made immediately after the incident to the Chief Medical Superintendent, Pilibhit did not mention the name of the accused and instead mentioned therein "some sardars".

19. Second, according to the prosecution, the weapon used in commission of offence was recovered from the pocket of the accused the next day, it looked improbable as to why would the accused keep the pistol all along in his pocket after the incident for such a long time and roam all over.

20. Third, the weapon (pistol) alleged to have been used in the commission of the offence was not sent for forensic examination with a view to find out as to whether it was capable of being used to open fire and, if so, whether the bullet/palate used could be fired from such gun. Similarly, other seized articles such as blood-stained shirt and soil were also not sent for forensic examination.

21. Fourth, weapon (Pistol) was not produced before the concerned Magistrate, as was admitted by the Investigating Officer.

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22. Lastly, if, according to the prosecution case, the shot was hit from a very short distance as the accused and the victim were standing very near to each other, then as per the medical evidence of the Doctor (PW-6) a particular type of mark where the bullet was hit should have been there but no such mark was noticed on the body. No explanation was given for this. This also raised some doubt in the prosecution case.

23. In our considered opinion, the aforesaid infirmities were, therefore, rightly noticed and relied on by the High Court for reversing the judgment of the Session Court after appreciating the evidence, which the High Court was entitled to do in its appellate jurisdiction. We find no good ground to differ with the reasoning and the conclusion arrived at by the High Court.”

34. In the present case, when the intention of the accused is ascertained

from the actual injury as well as from surrounding circumstances, the nature of the weapon used and the severity of the blows inflicted and the evidence on record, it does not establish commission of offence punishable under Section 307

IPC by the accused. Based on the evidence of the witnesses, it is likely that the injuries caused to the victim were caused as a result of his falling down due to his high blood pressure on heaps on rocky boulders near 4 Lane Highway after

which he became unconscious¸ got hurt on his feet and on the chest and regained his consciousness at the hospital. The ocular evidence of PW-4 is

cogent and corroborated by the medical evidence.

35. Thus, based on the evidence on record, the prosecution failed to prove beyond reasonable doubt that the accused had a common intention of causing

injuries or death upon victim Upen Gogoi. From the aforesaid evidence it is apparent that there is nothing to show that the accused hit the victim with a iron hammer on his head, chest and fingers. Infact, on the date of the incident the

accused was in his shop and not at the place of occurrence. Therefore there is nothing on record based on which accused person can be found guilty of offence under Section 326/307 of IPC. Thus, based on the evidence on record, it cannot

be proved beyond reasonable doubt that the accused had caused grievous hurt to the victim Upen Gogoi or that he had a common intention of causing injuries

or death upon victim Upen Gogoi.

36. In view of the above detailed discussion, I have no hesitation in concluding that prosecution has not proved the case against the accused beyond

shadow of doubt. Accused deserves to be accorded benefit of doubt.

37. It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubts. No matter how weak the defence of accused is but, the golden rule of the

Criminal Jurisprudence is that the case of the prosecution has to stand on its own legs. In the case of S.L.Goswami v. State of M.P[ 1972 CRI.L.J.511(SC)], the Hon'ble Supreme Court held:

"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or

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is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."

38. In Partap Vs. State [AIR 1976 SC 966] it has been observed by the Hon'ble Supreme Court that:

''The right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded.''

39. The onus and duty to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable

doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Nallapati Sivaiah v.

Sub Divisional Officer, Guntur [AIR 2008 SC19]

40. In the case of Sujit Biswas v. State of Assam [(2013) 12 SCC 406],

the Hon’ble Supreme Court has held as under:

"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343;

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State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979)."

41. The principle of presumption of the innocence of the accused until proved

guilty has been very lucidly stated by the Hon’ble Supreme Court in the decision of Harijana Thirupala And Ors. vs Public Prosecutor, High Court Of AP [2002(6)SCC470] as under :

“11. In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the curt must be integrated not truncated or isolated. In other words, the impact of evidence in totality on the prosecution case or innocence of accused has to be kept in mind in coming the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case.”

42. In Sohan Vs. State of Haryana[ (2001) 3 SCC 620], it has been observed by Hon'ble Supreme Court that :

''An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words, the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence. In this case, if only the Sessions Judge had reminded himself of the above mentioned basic or fundamental principles of criminal jurisprudence, direction of his approach and course of his appreciation of evidence would have been different and thereby perversity in appreciation of evidence could have been avoided.''

43. In Sharad Birdhichand Sarda Vs State of Maharashtra [AIR 1984 SC 1622], it has been observed by Hon'ble Supreme Court that :

“Where on the evidence two possibilities were available, one which went in the favour of the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. The principle had special relevance where the guilt of the accused was sought to be established by evidence.”

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44. In view of the above position and the materials available on record, as discussed above, I have come to the conclusion that the prosecution has failed to

prove that accused Shivram Gogoi committed the alleged offence u/s 307/326 of the IPC.

O R D E R

45. In the result considering the totality of the evidence, documents on record and facts of the case, it is found that the prosecution has failed to prove

the charge under Sections 307/326 of the IPC against the accused person. In view of the above discussion, this Court is of the opinion that the accused person is acquitted of the charge under Section 307/326 of the IPC. Set him at liberty

immediately.

46. Accused person is allowed to go on with bail for next six months as per

the provision of section 437A Cr.P.C as amended up-to-date.

47. Send a copy to the District Magistrate, Jorhat U/s 365 Cr.P.C.

48. File be consigned to Record Room subject to compliance of Section 437A

CrPC.

49. Judgment is pronounced in the open court, written in separate sheets and

tagged with the record.

Given under my hand and seal of this Court on this the 13th day of August, 2019.

(P. Kataki)

Addl. Sessions Judge, Jorhat

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APPENDIX:

WITNESSES FOR THE PROSECUTION :

PW.1 .. Iti Gogoi

PW.2 … Bani Proba Neog

PW.3 … Dr. Dibakar Chaubey

PW.4 … Upen Gogoi

PW.5 … Dilip Das

WITNESSES FOR THE COURT

NIL

WITNESSES FOR THE DEFENCE

NIL

EXHIBITED DOCUMENTS

Ext.1 .. Ejahar

Ext.2 … Seizure list

Ext.3 … Injury report.

Addl. Sessions Judge, Jorhat.

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