Criminal Appeal No. 32 (J) of 2015. Case: Nalia Das and Anr. Vs State of Assam. Guwahati High Court

Case NumberCriminal Appeal No. 32 (J) of 2015
CounselFor Appellant: Ms. Usha Das, Learned Amicus Curiae, Adv. and For Respondent: Ms. Shamima Jahan, learned Additional Public Prosecutor.
JudgesMr. Ajit Singh, C.J
IssueIndian Penal Code - Sections 302, 34; Code of Criminal Procedure - Section 161
Judgement DateSeptember 19, 2016
CourtGuwahati High Court


Mr. Ajit Singh, C.J

  1. Appellants Nalia Das and Sarulora Das @ Jatin Das have been convicted under Section 302/34 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/- each with default stipulation.

  2. The victim of the incident was Nayanmoni Saikia, aged about 35 years.

  3. According to the prosecution case, on 30.11.2009, around 7 p.m., Nayanmoni had gone out from the house towards village and as he reached Chakradhora Gaon Tinali (Tri-juncture), Sarulora Das caught hold of him tightly with his both arms and Nalia Das dealt a blow on his head with an axe. Thereafter, both of them fled from the scene of occurrence. Nayanmoni was immediately taken to Golaghat Civil Hospital by his brother Jitumoni Saikia (PW-1) and father Tikheswar Saikia (PW-2). But since the condition of Nayanmoni did not improve, he was referred to Dibrugarh Hospital on 1.12.2009 for better treatment. Ejahar exhibit 1 of the incident was lodged by Jitumoni at Ghiladhari Police Station, which was registered as First Information Report. In the ejahar, Jitumoni did not claim himself to be an eye witness nor did he mention the name of Sarulora as a participant in the crime. Nayanmoni, however, succumbed to the head injury on 3.12.2009. Dr. Dhrubajyoti Deka (PW-5) conducted the post mortem examination on the dead body of Nayanmoni. He found one incised looking lacerated wound on left parietal temporal region of the head of Nayanmoni. The doctor opined that Nayanmoni died due to coma, as a result of head injury caused by blunt face impact.

  4. The Investigating Officer, Tahindra Nath Dutta (PW-11) arrested the appellant Nalia Das on 6.12.2009 from his house. He also seized one axe Material exhibit 1 from there vide seizure exhibit 5. Jiba Das (PW-8), Biren Das (PW-9) and Minati Das (PW-10) are witnesses to seizure.

  5. During trial, the appellants denied the charge and pleaded false implication. They, however, did not examine any witness in defence.

  6. The trial court relying upon the evidence adduced by the prosecution convicted and sentenced the appellants as aforesaid.

  7. After hearing the learned counsel for the appellant and learned Additional Public Prosecutor, we are of the considered view that the appeal deserves to be allowed. Jitumoni has been examined by the prosecution as an eye witness. But, as mentioned above, in the ejahar lodged by this witness, he did not claim himself to be an eye witness to the incident. Not only this, he...

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