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IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE, JORHAT
Present :- Mrs. Suchandra Bhattacharjee,
Addl. Sessions Judge, Jorhat.
JUDGMENT IN SESSIONS CASE NO. 109 (J-J) 2015
G. R. CASE NO. 166/15
Committing Magistrate :
Smt. C.R. Saikia,
Sub Divisional Judicial Magistrate,
Titabor, District - Jorhat.
State of Assam
Vs.
1. Sri Phatik Dutta
Son of Sri Kumud Dutta
2. Sri Rahul Barman
Son of Sri Poresh Barman
3. Sri Dilip Sabar
Son of Late Ajit Sabar
All are residents of New Sonowal
P. S. Mariani, District - Jorhat.
District - Jorhat…………………………..Accused persons.
APPEARANCE :
Sri Siddique Ali, Addl. Public Prosecutor – for the State.
Sri Muhidhar Dutta and Ms Pranati Borthakur, Advocates – for the
accused persons.
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Charge framed under section 302 of I.P.C.
Date of recording Prosecution evidence: 18.09.15, 07.11.15, 02.01.16,
04.03.16 & 03.05.16
Date of recording statement U/S 313 Cr. P C : 17.05.16
Date of Argument : 31.05.16
Date of Judgment : 31.05.16
JUDGMENT
1] The prosecution case in brief is that on 15.04.15, informant Sanjib Saikia
lodged a written ejahar at Mariani Police station stating inter alia that on
14.04.15 at about 03.00 p.m. his father Atul Saikia, went out to his farmhouse,
when till evening he failed to return then he went in search of him and at some
distance from the farm house, found his father lying dead in a burnt condition
having his mouth gagged with cloth.
2] After receiving the FIR, the officer in charge Mariani registered a case
vide Mariani P.S case no.78/15, u/s 302. Thereafter, investigating officer took up
the investigation of the instant case and after completion of the investigation,
submitted charge sheet against the accused persons namely Dilip Sabar, Phatik
Dutta and Rahul Barman @ Pawan under section 302 I.P.C. The learned lower
court after appearance of the accused persons before it, committed the case to
the Sessions Court as the case is exclusively triable by Court of Sessions. After
committal of the instant case, the learned Sessions Judge, Jorhat, transferred the
instant case to this court for disposal. This court after hearing the counsels for
both sides and perusing the materials on record framed charge under section
302 IPC against the accused persons and read over and explained the contents
of the charge to which they pleaded not guilty and claimed to be tried
3] The prosecution to prove its case examined as many as eight witnesses.
The accused was examined under section 313 Cr. P C wherein they denied the
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incriminating materials came out against them and also denied to adduce any
evidence in their defence.
4] Point for determination in this case is :
Whether the prosecution, beyond all reasonable doubt, proved
the fact that the accused persons on 14.04.15 killed Atul Saikia by
gagging his mouth with cloth and by burning him with the intention to
cause his death?
5] Heard the learned counsels for both the sides and considered the entire
materials available on record.
6] Let at the outset the entire evidence on record be perused.
7] P.W. 1 Sri Sanjib Saikia is the complainant. He deposed that about five
months back at about 3:30 – 4:00 p.m. his father went out from the house to his
paddy field situated near Naga Hill. He deposed that his father used to regularly
go out at about 3.30 p.m. to 4.00 and return at about 5 p.m. But on the date of
the incident his father failed to return back till 5 p.m. When he failed to return
back he along with his mother and one of his village persons namely Ajit Saikia
duly searched his father but did not find him anywhere. Then again he along
with other village people went to search his father and found his father lying
dead in a jungle which is 50 meters away from their paddy field. After finding his
father dead he lodged FIR on the same day. He marked the FIR as Exbt. 1 and
Exbt. 1 (1) as his signature. The FIR was written by one person near to the
police station. After getting the information police came to the place of
occurrence and did inquest on the dead body of his father in his presence. He
marked the inquest report as Exbt. 2 and Exbt. 2 (1) as his signature.
Defence declined to cross examine him.
8] P.W. 2 Sri Mridul Saikia, deposed that on 14.04.2015 at about 5.30 p.m.
he went out to church during then his sister called him up and informed him that
his father is not at home and asked him to come back to home. After coming to
home he did not find anyone at home and came to know that all the family
members went out to search his father. Accordingly, he went out to search his
father. Thereafter, he heard from the village people that his father is found dead
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in a jungle which is situated at about 40-50 meters away from their paddy field.
The dead body of his father was found in bunt condition and his mouth was
found gagged with cloth. He noticed sign of cloth being tied near his mouth. He
deposed that adjoining to their paddy field, paddy field of accused Photik Dutta is
situated. He further deposed that he heard from his mother that prior to the
incident accused Phatik Dutta abused his father for dispute regarding the
boundary of their paddy field. Seeing the condition of his father he suspected
that his father was killed. He deposed that he does not know who killed his
father.
In his cross examination he deposed that his house is situated at New
Sonowal Seujigaon. The place where his father was lying dead is situated about
half kilometer away from his house. He deposed that in their paddy field they do
not have any house and no one stays near their paddy field where his father was
lying dead. Their paddy field is situated near Naga Hill .Naga people also have
paddy land land but their land is situated little far away from their paddy field.
They did not have any dispute with Naga people. Their paddy field is situated in
between the land of accused Rahul @ Pawan Barman and Photik Dutta.
Thereafter, land of Ajit Saikia,Dilip Saikia is situated. He deposed that none of
the people have any residential house at their paddy field. He admitted that he
has not seen any face to face quarrel between accused Phatik Dutta and his
father. He heard from his mother that accused Phatik Dutta abused his father in
his absence which she heard. They have got cordial relation with their
neighbours. House of accused persons is situated far away from their home. He
deposed that he does not know whether there were any visiting terms between
his father and the accused persons.
9] P.W. 2 Sri Joonmoni Dutta, is the wife of accused Phatik Dutta. She
deposed that she knows the accused Rahul Barman @ Pawan but does not know
the another accused standing in the dock(Dilip Sabar) and also does not know
the complainant Sanjeev Saikia and also did not know the deceased Atul Saikia.
She deposed that she does not know anything about the incident.
Defence declined to cross examine him.
10] P.W. 4 Smt. Bina Saikia, is the wife of the deceased Atul Saikia. She
deposed that on 14.04.15 at about 03.30 p.m. her husband went out from home
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but he failed to return to home till evening. As he failed to return till evening they
duly searched him and also went to the farm house but failed to trace him out.
She deposed that her daughter in law Sunti Saikia saw her husband to go
towards their farm house situated at Naga pahar which is about 1-1 ½
kilometers away from their house. At about 9.30 p.m. her son Sanjeev Saikia
informed her that the dead body of her husband is found lying near the farm
house situated at Naga Pahar in burnt condition having his mouth gagged with
cloth. The clothes on his body were found to be burnt. She deposed that on the
same day of the incident the accused Rahul Barman met her husband at their
home at 8.30 a.m. to 9.00 a.m. and told her husband to meet him at 4.00 p.m.
and when she asked him why he wants to meet her husband then he told that
she need not know as it is their personal matter. When she asked her husband
he also did not say anything to her. Police during the investigation brought her
before the magistrate to record her statement. She marked her statement before
the magistrate as Exbt. 3 and Exbt. 3 (1), 3 (2) and 3 (3) as her signatures. She
deposed that she suspects that the accused persons have killed her husband as
one of the accused persons namely Rahul Barman asked her husband to meet
him at about 4.00 p.m. on the date of incident to discuss some personal matter.
In her cross examination she deposed that the accused persons Rahul
Barman and Phatik Dutta belong to their village. She deposed that they did not
have any visiting terms with the aforesaid accused persons though they had
talking terms with them. The accused Rahul Barman came to their adjoining
residence on the day of the incident to collect the larva of ant during then the
accused asked her husband to meet him at 4.00 p.m. and at that time she was
standing near her husband and saw accused Rahul Barman to come to nearby
residence. There was no dispute between her husband and the accused persons.
But in the month of February while her husband was putting fencing on the land
of their farm house situated at Naga pahar where land of accused persons is also
situated the accused Phatik Dutta used some abusive language against her
husband. The dead body of her husband was found lying outside of their farm
house in the reserve forest and the said fact was informed to her by her son.
After getting the information she did not go to see the dead body of her
husband, from there the dead body of her husband was taken to Jorhat Medical
College and Hospital. She saw the dead body of her husband after postmortem
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examination. When his dead body was brought to her house she found his mouth
gagged with cloths. She denied the fact that accused Rahul Barman did not come
to the nearby residence or did not ask her husband to meet him at 4.00 p.m. to
discuss some personal mater. She denied the fact that she has not stated before
the police and magistrate that she found the dead body of her husband in burnt
condition being gagged his mouth with cloth. She denied the fact that she has
not stated to the police or the magistrate that she suspects that the accused
persons have killed her husband.
11] P.W.5 Dr. N.K. Gogoi deposed that on 15.04.2015, he was working as
Assistant Professor Department of Forensic Medicine, JMCH, Jorhat on that day
one dead body of Atul Saikia male 67 years son of late Manik Saikia resident of
Seuji gaon, P.S. Mariani, District Jorhat was brought for post mortem
examination in connection with Mariani P.S. G.D.E. No. 313 dated 14.04.15. The
dead body was brought and identified by UBC 551 Bhupen Chandra Das and
Mridul Saikia son of accused. He performed the post mortem examination on the
same day at about 11:25 a.m. and found the following.
A male dead body of average built with scalp hair, body hair and wearing
garments being charred. Body is cold on touch. Rigor mortis is present over
whole body. Burn injuries present over whole body except portions of both the
soles of feet. The base of burn injuries are reddened. Line of redness present
between healthy and burnt area. The burn injuries are epidermal to dermo
epidermal in depth and covers about 98 % of total body surface area. As per his
opinion as to the cause of death, death was due to shock as a result of
antemortem burnt injuries sustained over the body covering about 98% of total
body surface area. Approximate time since death 18 to 24 hours. He marked the
post mortem report as Exbt. 4 and Exbt. 4 (1) as his signature and the inquest
report as Exbt. 2 and Exbt. 2 (2) as his signature.
In his cross examination he deposed that as per injury report 100% burn
injury was found on the body. He denied the fact that the post mortem
examination on the dead body could not be performed as 100% burn injuries
was found. There was 98% burn injury on the body. As the feet i.e. soles of feet
were not found burnt.
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12] P.W. 6 Smt. Tulu Bora, deposed that about one year back in the year
2015 during Goru Bihu, in the morning the accused Rahul Barman came to their
house to pluck the nest of ant, during then deceased Atul Saikia also went to
their home. She heard them (accused Rahul Barman and the deceased) speaking
very silently when she heard the accused Rahul Barman and the deceased to
speak so silently then she went near them and heard saying them to meet each
other at about 4.00 p.m. when she asked them that why they want to meet at
4.00 p.m. the deceased Atul Saikia told her that she does not need to know
about the same. Thereafter, she heard that Atul Saikia died and his body is found
in burnt condition. She heard that his mouth was found being gagged with cloth.
Police during the investigation brought her before the magistrate. She marked
her statement before the magistrate as Exbt. 5 and Exbt. 5 (1) and 5 (2) as her
signatures.
In her cross examination she deposed that when accused Rahul Barman
came to their home Bina Saikia (wife of deceased) was also there in their home.
She denied to have deposed falsely that she heard the accused Rahul Barman
and deceased, Atul Saikia to say to meet at about 4.00 p.m. She denied the fact
that she did not hear anything.
13] P.W. 7 Sri Arup Sarma deposed that Atul Saikia died one year back during
Goru Bihu by sustaining burn injury, he was found dead in burnt condition near a
drain situated near his farm house situated at hilly area. After coming to know
about the death of the deceased, he went to the place of occurrence. During
then police seized one green Assamese gamocha (towel), one yellow Hawai
sandal, one wooden case to keep machete, one Naga dao (machete), one nylon
rope half burnt being tied with a bamboo and another nylon rope. He marked the
seizure list as Exbt. 6 and Exbt. 6 (1) as his signature and Material Exbt. 1 as the
green gamocha (towel), Material Exbt. 2 as Hawai Sandal (Slippers). Material
Exbt. 3 as wooden case, Material Exbt. 4 as the machete (Naga dao) Material
Exbt. 5 as the Nylon rope, Material Exbt. 6 as the half burnt nylon rope being tied
with bamboo.
In his cross examination he stated that the place where the dead body
was found was a hilly and jungle area. The residential area from that place is
about 300 - 400 meters away. The place where the body of the deceased was
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found is called Desoi valley Reserve Forest. He deposed that four days prior to
the incident Naga people caused trouble at that area and dispossessed few
people from their land.
14] P.W.8 S.I. Amar Jyoti Gogoi, deposed that on 14.04.2015 he was working
at Mariani police station as attached officer, on that day O/C Mariani P.S.
received one telephonic information stating that an aged person is lying dead in
Desoi valley Reserve Forest in bunt condition and after receiving the same it was
entered vide G D. entry 313 dtd.14.04.15 and after entering the same, the O/C
Mariani P.S. along with him and other police officials went to the place of
occurrence, situated at Desoi Valley Reserve Forest at about 9.30 p.m. on the
same day and after going there found lot of people gathered over there. Then
the people took them to the place where they found a person aged about 60
years lying dead having 90% burnt having his mouth gagged with cloth and his
mouth also tied with cloth which was also burnt but the sign was there, nearby
leaf were found burnt. The following articles were found lying near the
deceased;- one green assamese gamocha, one hawai sandal, one wooden case
of dao(machete) one naga dao(machete),one nylon rope and another burnt
nylon rope and accordingly all the aforesaid articles were seized in presence of
witnesses. He marked the seizure list as Ext 6 and Ext 6(2) as his signature. On
the same day at about 11.00 p.m, Circle Officer, Mariani Sri Torali Das did the
inquest on the dead body in presence of witnesses. He recorded the statement of
the seizure witnesses. Thereafter, the dead body was brought and was sent for
post mortem examination On the subsequent day i.e. 15.04.15, Sanjib Saikia,
son of the deceased lodged written FIR and it was registered as Mariani P.S.case
No. 78/15, u/s 302 IPC. He marked the FIR as Ext 1 and Ext1 (2) as the
signature of the then O/C Mariani P.S. S.I Jugal Kishore Saikia, which he knows
very well. Thereafter, he was entrusted with the investigation of the case and on
being entrusted with the investigation, he recorded the statement of the
complainant at the police station and also recorded the statement of Mridul
Saikia another son of the deceased at the police station, while recording the
statement, it came out that accused Phatik Dutta has prior enmity with the
deceased and he threatened the deceased to kill him. Thereafter, he visited the
place of occurrence, situated at Desoi Valley at Reserve Forest and prepared the
sketch map of the same. He marked the sketch map as Ext 7 and Exbt.7(1) as
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his signature. Then he recorded the statement of witnesses near the place of
occurrence. On the same day i.e. on 15.04.15 accused Phatik Dutta and
Budhuwar Rajak were brought to the police station to record their statement.
Budhuwar Rajan was allowed to go after recording his statement. The accused
Rahul Barman was arrested on 25.04.15 and forwarded for custodial detention
and accused Dilip Sabar was arrested on 26.04.15. On 28.04.15 and 29.04.15
Bina Saikia and Tulu Bora were respectively sent before the magistrate to record
their statement U/S 164 Cr.P.C. Thereafter, post mortem examination report was
collected. After completion of the investigation and after finding sufficient
materials against the accused person charge sheet is submitted against the
accused persons u/s 302 IPC. He marked the charge sheet as Ext 8 and Exbt. 8
(1) as his signature.
In his cross examination he stated that he has recorded the statement of
the witnesses near the place of occurrence i.e. at Seuji Gaon which is situated
quite near to the same. The exact place of occurrence is situated at Desoi valley
where there is no inhabitation of any people. On 15.04.15, FIR was received,
Complainant Sanjib Saikia and witnesses Mridul Sakia are brothers. On 15.04.15
both of them were examined. He denied the fact that none of the witnesses
stated anything against the accused persons. He denied the fact that he has not
recorded statement of Bina Saikia and Tulu Bora. He confirmed that Bina Saikia
(P.W. 4) did not state to him that she suspected the accused persons or she
found the dead body of her husband having its mouth ganged with cloth. He
deposed that he has not come to know during the investigation that during the
aforesaid incident any disturbance by Naga people was created. He stated that
he heard earlier that some disturbance was caused by Naga people at Desoi
Valley but he does not know in what area/portion of Desoi valley the disturbance
was caused.
DISCUSSION, DECISION AND REASONS THREOF :
15] The perusal of evidence of doctor (P.W. 5) and the post mortem
examination report of the deceased marked as Ext. 4 clearly reveals that the
deceased died due to shock as a result of ante mortem burn injuries sustained
over the body covering about 98% of total body surface area. In simple parlance
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the death of the deceased was caused due to burn injuries or as he was burnt
alive.
16] Hence, keeping in view the post mortem examination report (Ext. 4), the
prosecution had the burden to prove that the burn injuries, which resulted in the
death of the deceased, were caused by the accused persons. But after the
perusal of entire evidence on record it appears that the prosecution is neither
supported by any direct evidence nor any other cogent evidence to bring home
the charge against the accused persons.
17] It is pertinent to mention that the perusal of entire evidence on record
nowhere reveals any material against the accused Dipak Sabar in particular. The
only material, as brought by P.W. 2 and P.W. 4, against the accused Phatik Dutta
is that in the month of February regarding the boundary of his and deceased’s
paddy field, the accused Phatik Dutta used some abusive language to the
deceased and the material, as brought by P.W. 4 and P.W. 6, against the
accused Rahul Barman is that on the same day of the incident, the accused
Rahul Barman came to collect larva of ant at the home of P.W. 6 and during then
he met the deceased at their home and told the deceased to meet him at 4.00
p.m. and when both of them (P.W.4 and P.W.6) asked them that why they want
to meet then both of them told to them that they need not to know as it is their
personal matter.
18] It is pertinent to mention that other than the foregoing material on
record, prosecution failed to prove any cogent material against the accused
persons. It appears that there is nothing cogent on the record which appears to
connect the accused persons with the death of the deceased. It appears that
there is nothing on the record which would suggest that the accused persons
burnt the deceased. Moreover, it is pertinent to mention that P.W. 4 categorically
deposed that there was no dispute between her deceased husband and the
accused persons as such.
19] Hence, in view of the foregoing discussions, I am of the opinion that the
prosecution, has utterly failed to prove the guilt of the accused persons. Hence,
the accused persons Phatik Dutta, Rahul Barman and Dilip Sabar are acquitted of
the charge u/s 302 IPC. Let all the accused persons be set at liberty forthwith.
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20] Bail bonds are cancelled and the bailors are discharged.
21] Let the seized articles be disposed of, in due course of time by destroying
the same.
22] Send the copy of this judgment to learned District Magistrate.
Given under my hand and seal of this court on this the 31st day of
May, 2016.
Addl. Sessions Judge, Jorhat.
Dictated & corrected by me,
Addl. Sessions Judge, Jorhat.
Typed by : (Sri Dambaroodhar Bora), Stenographer.
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A N N E X U R E:
List of witnesses from prosecution side :
P.W. 1 : Sri Sanjeev Saikia.
P.W. 2 : Sri Mridul Saikia.
P.W. 3 : Smt. Joonmoni Dutta.
P.W. 4 : Smt. Bina Saikia.
P.W. 5 : Dr. N.K. Gogoi.
P.W. 6 : Smt. Tulo Bora.
P.W. 7 : Sri Arup Sharma.
P.W. 8 : S.I Amarjyoti Gogoi.
List of witnesses from defence side :
Nil.
List of witnesses from the side of Court :
Nil.
List of documents from prosecution side :
Ext. 1 : F.I.R.
Ext. 2 : Inquest Report.
Ext. 3 : Statement of P.W 4 U/s. 164 Cr. P.C.
Ext. 4 : Post Mortem Report.
Ext. 5 : Statement of P.W 6 U/s. 164 Cr. P.C.
Ext 6 : Seizure List.
Ext 7 : Sketch Map.
Ext 8 : Charge sheet.
List of Exhibits from defence side :
Nil.
List of Exhibits from the side of court :
Nil.
List of Material Exhibits from prosecution side:
Material Ext 1- Green Gamocha (Towel).
Material Ext 2- Hawai Sandal (Slippers)
Material Ext 3- Wooden Case.
Material Ext 4- Machete (Naga Dao).
Material Ext 5- Nylon Rope.
Material Ext 6- Half burnt rope being tied with bamboo.
Addl. Sessions Judge, Jorhat.
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ORDER
31.05.16 Accused Phatik Dutta and Rahul Barman are present.
Accused Dilip Sabor is produced from jail.
Seen petition no. 472/ 16 filed for the accused persons
namely Phatik Dutta and Rahul Barman praying to allow
time for argument. It appears that accused persons have
failed to show any reasonable cause, hence the petition is
rejected.
Heard the learned counsels for both the sides.
Judgment is prepared on separate sheets and tagged with
the case record. The same is delivered in the open court
today.
This court is of the opinion that the prosecution, has
utterly failed to prove the guilt of the accused. Hence, the
accused Phatik Dutta, Rahul Barman and Dilip Sabor are
acquitted of the charge u/s 302 IPC.
Bail bonds are cancelled and the bailors are discharged.
Let the seized articles be disposed of, in due course of
time by destroying the same.
Send a copy of this judgment to the learned District
Magistrate, Jorhat.
Addl. Sessions Judge, Jorhat