Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

1. The Appellants have assailed the correctness of
judgment and order dated 21.11.2015 passed by Gauhati
High Court in Criminal Appeal No.113/2014 – Pulen
Phukan and 10 others versus State of Assam whereby the
appeal was dismissed confirming the judgment and order
of Trial Court i.e. Sessions Judge at Dibrugarh passed in
Sessions Case No.27 of 2000 whereby 11 accused were
convicted under Sections 147/148/447/323/302/149 of
Indian Penal Code, 18601 and sentenced to Rigorous
Imprisonment for life under Section 302/149 IPC and
Rigorous Imprisonment for six months under Sections
147/148/447/323 IPC. Further a fine of Rs.1,000/- was
imposed on each of the 11 accused and in default of
payment of fine, to undergo further one-month Rigorous
2. It would be relevant to note here that although trial
was conducted against 11 out of 13 accused and all of
them were convicted and sentenced as above, all the 11
convicted accused had preferred an appeal before the High
Court which had been dismissed. However, before this
Court only four of such accused have preferred an appeal,
namely, Pulen Phukan (accused no.1), Jiten Phukan
(accused no.3), Mridul Saikia @ Midul Saikia (accused
no.5) and Mozen Phukan (accused no.2). Two of the
thirteen accused namely Dhajen Phukan and Muhiram
Phukan remained absconded and there is no material on
record regarding their arrest or trial.
3. The prosecution story begins with lodging of a First
Information Report2 on 13 June, 1989 at Police Station
Chabua, District Dibrugarh, reported by Smt.Nareswari
Phukan (PW1). It is a very short and crisp FIR which states
that around 12 noon on 13.06.1989, thirteen residents of
the village came to her house, cordoned off her house
without any reason and caused grievous injury on the
head of her brother-in-law Robi Phukan (PW 2) by giving
blows with sharp weapons and three of the accused
persons, namely, Mozen Phukan, Dulen Phukan and
Haren Saikia committed murder of Pradip Phukan by
assaulting him with sharp cutting weapons, necessary
action may be taken regarding the said incident. This was
registered as Chabua Case No.70/89 under Sections
147/148,149,447, 302, 326, 34 IPC. The police came to
the spot, made the necessary enquiries and after
completing the formalities sent the dead-body of the
deceased for post-mortem. They also collected some
material from the spot for which recovery memos were
prepared and the material taken into custody. After
completing the investigation, charge-sheet was submitted
on 3rd May, 1991 against eight accused, namely, Mozen
Phukan, Mridul Saikia, Kuleshwar Chetia, Pulen Phukan,
Baren Saikia, Dulen Phukan, Kiran Saikia and Harnath
Saikia. Five accused could not be arrested as such they
were not sent for trial being absconders, namely, Jiten
Phukan, Dhajen Phukan, Muhiram Phukarn, Haren
Saikia and Jiban Chetia. It appears that at some stage
three more accused were arrested and they were also sent
for trial. The two accused who remained absconding are
Dhajen Phukan and Muhiram Phukan. The charge-sheet
was submitted finding prima facie case for trial under
Sections 147, 148, 149, 447, 448, 324, 326 and 302 IPC.
The charges were read out to the accused who pleaded not
guilty and claimed to be tried.
4. The prosecution examined seven witnesses and also
filed four documentary evidences to prove the charges. The
seven witnesses are as follows:
i. PW 1- informant and eye-witness: Smt.Nareswari
Phukan (sister-in-law of the deceased);
ii. PW2-Eye-witness and injured: Robi Phukan (brother
of the deceased);
iii. PW 3 – Eye-witness: Smt.Jogmaya Phukan (sister in
law of the deceased) ;
iv. PW 4- Eye-witness: Smt.Anjana Phukan, (relative of
the deceased);
v. PW 5 – Bhuban Phukan, relative of the deceased;
vi. PW 6 – Dr.Naleswar Sonowal who conducted the
autopsy on the dead-body of the deceased; and
vii. PW 7 – Nilo Chiring, the Investigating Officer who
submitted the charge-sheet (Ex.-4).
5. The documentary evidence produced and proved by
the prosecution are:
i. FIR (Ejahar)-Ex.-1;
ii. Seizure of the axe-Ex.-2;
iii. Post-mortem report-Ex.-3;
iv. Charge-sheet-Ex.-4.
6. The Trial Court and the High Court came to the
conclusion that the evidence led by the prosecution was
unquestionable and have accordingly recorded the
conviction and sentence as afore-stated.
7. Heard learned counsel for the parties and perused the
material on record.
8. Learned counsel for the appellants made the following
A. The prosecution has not come forward with fair and
honest version for the following reasons:
i. The FIR is very sketchy. The statement of the first
informant (PW-1) before the Trial Court is a clear
improvement from the version mentioned in the FIR.
ii. PW-1, PW-2 and PW-3 have clearly stated that at least
five police personnel were present at the time the
incident took place. It is also stated that the police
personnel had accompanied the accused. There is no
explanation given regarding the presence of the police
throughout the occurrence.
iii. If the police personnel were present outside the house
of the deceased then the matter ought to have been
reported by them regarding the incident rather than
PW-1 going to the Police Station to lodge the FIR.
iv. The accused accompanied the police to the Police
Station along with PW-2 who was throughout
assaulted on the way.
v. Why did the police personnel who were five in number
not make any attempt to apprehend the accused and
not only let them go scot-free but also accompanied
them to the Police Station.
B. There is no evidence whatsoever to show that all the
accused had come with a common object with regard to
the offence to be committed and if that be so invoking
sections 147,148 and 149 IPC would be untenable in law.
The ingredients of Section 142 of IPC are not established
by any evidence.
C. There is material inconsistency in the evidence of the
eye-witnesses PW-1 to PW-4 which completely discredits
their testimony not only for the reason that they are
interested witnesses being relatives of the deceased but
also on careful scrutiny of the evidence, their testimony
cannot be regarded as reliable. Further testimonies of PW1 to PW-4 vis-à-vis their statements under Section 161
Code of Criminal Procedure, 19733 are quite inconsistent.
3 CrPC
D. It is a clear case of false implication at the hands of
the police inasmuch as:
i. The police were present throughout the incident,
which presence has not been explained.
ii. The FIR is written by one Md.Majid Sikdar whose
evidence is not only not recorded in the police case
diary but also not produced through trial to prove the
iii. The first informant has clearly stated that she did not
know the contents of the FIR as the same was not
read out to her and that she had only put her
signatures where she was told to.
9. On the other hand, learned counsel for the StateRespondent submitted that both the Courts below i.e. the
Trial Judge as well as the High Court, after considering
the material evidence on record, have recorded concurrent
findings on conviction and as such the same would not
require any interference by this Court.
10. Before proceeding with the analysis of the evidence
led by the prosecution, the deposition of each of the seven
witnesses is briefly recorded hereunder:
10.1 The first informant PW-1 opens her statement by
stating that she knows the accused persons by name
and face. She further states that she knows the
accused persons present in the dock on the day of her
statement; the two absconded accused Dhajen and
Muhiram are not present; she then reiterates the
contents of the FIR; while Robi Phukan (PW 2) was
being assaulted, the deceased fled by the back court
yard; the accused persons chased the deceased who
entered into the house of Anjana Phukan (PW4); she
followed the accused persons who also entered into the
house of Anjana Phukan (PW4); that Kuleswar
assaulted the deceased with iron rod and Pulen
Phukan gave a blow on the neck of the deceased, as a
result of which he fell down. The accused thereafter
left that place. She then states that while the accused
persons were taken to the Police Station she along with
Jogmaya Phukan (PW-3) came to the Police Station
where the FIR was written and she put her thumb
impression; she proves her thumb impression on the
FIR which is marked as Ex.-1; thereafter she proceeds
for the Mission Hospital where the body of the
deceased had reached. In her cross-examination she
states that Chabua Police Station is about 3 kms. away
from her house; she reached the Police Station at
about 3-4 PM; she did not read Ex.-1 which was
written in the Police Station and only her signatures
were obtained thereon; it was also not read over to her;
she does not know what is written in it; the police did
not question her. Then she denies the suggestion
about the assault being incorrect. Lastly she states
that on the date of occurrence, the police were
accompanying the accused.
10.2 PW 2- Robi Phukan, brother of the deceased, is
an eye-witness as also alleged to be injured. According
to him, the deceased, his mother and Jogmaya his wife
and he himself were present at home on the fateful day
at about 12 noon when the accused persons armed
with dao etc. came to their house and enquired about
Pradip (deceased). On seeing the accused persons
coming, the deceased went out through the back door
of the house then the accused persons chased him.
The deceased entered Bhuban’s (PW-5) house (which
is the same house as Anjana’s (PW-4) as they are
husband and wife). The accused also entered
Bhuban’s house and assaulted Pradip, the deceased.
Kuleswar hit him with a dao while he was trying to
enter. Then I did not see who assaulted with dau on
the deceased’s neck. Thereafter the accused persons
came near him and caused injury by assaulting with
lathis. The police arrived there a little later and took
him to the hospital for treatment. He further states
that he sustained injuries on his head and hands. In
the cross-examination he states that the police did not
question him with regard to the incident. When the
accused persons came, he was outside the house.
However, on seeing the accused persons entering the
house, he also came in. He came out when the
deceased was chased by the accused. He then states
that the police personnel and the accused persons
caught hold of him. He claims to have seen the
hacking of his brother. He denies the suggestion that
actually he did not see anything. He admits that before
the police he had not stated that Kuleswar and Dhule
had assaulted the deceased. He further goes on to say
that the police personnel had come along with the
accused to his house. Another relevant fact which he
mentions in the cross-examination is that prior to the
incident of his brother’s murder, police had registered
a case against them on the basis of allegation made by
Pulen Phukan. They had appeared in the court while
the police were searching for them. On the day of the
occurrence police along with the accused came to his
house searching for him and his brother (deceased).
10.3 Jogmaya Phukan (PW-3) is the wife of Robi
Phukan (PW-2). She has given a similar version that
while she was sitting at home with her husband, the
deceased and her mother-in-law at around 12 noon
the accused persons armed with dao and axes came to
their house. The deceased on seeing them went out
through the back door and entered Anjana’s house.
He was chased by the accused who also entered into
Anjana’s house. She saw Kuleswar assaulting the
deceased with an iron rod and Dulen assaulting on the
neck with an axe. The neck had almost separated from
the body and it was hanging. The accused persons
took her husband Robi Phukan (PW2) to the Police
Station assaulting him. She also states about the
police personnel coming to her house along with the
accused and that they witnessed the incident.
According to her also, the police did not question her.
She further states that 5-6 persons have entered into
the room where the deceased was assaulted. She also
states that she did not enter the said room. She
further states that police had come to apprehend her
husband and the deceased.
10.4 Anjana Phukan (PW-4) has stated that she knows
the accused persons as also the deceased who was her
brother-in-law by relation. Their house is in the
neighbourhood and they share common boundary. On
the date of the occurrence at about 12 noon she heard
some sound outside and she saw the deceased enter
her house in a haste and accused Kuleswar who was
chasing him assaulted with an iron rod. Despite the
same the deceased entered into the house and then
Dulen Phukan with an axe assaulted on the deceased
neck as a result of which he fell down instantaneously.
The neck had almost severed and he died immediately.
The accused persons then fled the scene. She however
states that she stayed at home with the dead-body till
about 4 PM when the police came and took the deadbody. Her two small children had been taken away by
her mother to her home; her husband was not at
home. She also states that the accused had left the axe
which was the weapon of assault on the body of the
deceased. She further states that she signed the
recovery memo (Ex.-2). In her cross-examination she
stated that she had seen Kuleswar, Dulen Phukan and
Pulen Phukan and also the five police personnel with
them. The various suggestions given by the defence
were all denied by her. She also states that the seized
articles have not been produced in Court and she has
not seen them.
10.5 Bhuban Phukan (PW-5) is not an eye-witness.
He has only stated that he returned in the evening
after working when he came to know that Pradip
Phukan had been murdered inside his house. He
further states that his wife and children had left for
their maternal home. He also states that two days after
the incident police visited his house and took away one
axe and he prove his signature on Ex.-2(2).
10.6 Dr.Naleswar Sonowal (PW-6) conducted the
autopsy and had noticed the following ante-mortem
1.Incised wound 10 x 3 cm x 6 numbers of
cervical vertebrae cuts in the right side of the
back of the neck. Skin, muscles, vessels, nerves
and 6th cervical vertebrae were cut completely
and slightly the spinal cord.
2. Incised wound 4 x 2 cm x bone deep in the
scapular end at the clavicle, clavicle was cut.
3. Incised wound 4 x 2 cm x bone deep in the
lateral side of the left elbow. Bevelled cut incised
wound 9 x 3 cm x skin cut in the left temporal
4. Bruises 3 x 3 cm below the left nipple.
5. Bruises 3 x 2 cm over the 11th right rib in the
interior axillary line.”
She has stated that the dead-body was received at the
hospital at 1 PM on 13.06.1989 and the post-mortem
was conducted at 11 AM on 14.06.1989.
10.7 PW-7 is the Investigating Officer who had
submitted the charge-sheet. According to him, the
investigation was conducted by Sub-Inspector
Dhirendra Nath Saikia and after his transfer it was
entrusted to him. He then states that out of thirteen,
eight accused were charge-sheeted and five were
reported to be absconders. He also states that he
made several attempts to arrest the absconded
accused but could not find any traces of them. He also
stated that he made attempts to collect the injury
report of Robi Phukan (PW2) at St.Look Hospital,
Chabua and also at Medical College, Dibrugarh but
could not find any records of the injured person. He
proves the charge-sheet bearing his signature as Ex.-
4. He also states that the earlier Investigating Officer
Dhirendra Saikia had collected the post-mortem report
from the Medical College and had not done any
investigation in the case. All the investigation,
according to him, was carried out by Sub Inspector
D.Gogoi who had expired. In his cross-examination he
has stated that the scribe of the FIR was Md.Majid
Sikdar and that no evidence is recorded of the said
scribe in the case diary. The witnesses Nareswari
Phukan PW 1, Anjana Phukan PW 4 had not stated
before the Investigating Officer about the assault made
by Kuleswar and Dulen Phukan on the body of the
11. The accused in their statements under Section 313 of
the CrPC have not stated anything in particular, and have
denied their involvement in the incident. No evidence is led
in defence.
12. Having gone through the evidence not only which is
available on record of the appeal but also having seen the
original record, our analysis of the same is as under:
13. The job of the prosecution is not to accept the
complainant’s version as Gospel Truth and proceed in that
direction but the investigation must be made in a fair and
transparent manner and must ascertain the truth. The
evidence collected during investigation should then be
analysed by the Investigating Officer and accordingly a
report under Section 173(2) of the CrPC should be
submitted. Further, the duty of the Trial Court is to
carefully scrutinise the evidence, try to find out the truth
on the basis of evidence led. Wherever necessary the Trial
Court may itself make further inquiry on its own with
regard to facts and circumstances which may create doubt
in the minds of the Court during trial. If the investigation
is unfair and tainted then it is the duty of the Trial Court
to get the clarifications on all the aspects which may
surface or may be reflected by the evidence so that it may
arrive at a just and fair conclusion. If the Trial Court fails
to exercise this power and discretion vested in it then the
judgment of the Trial Court may be said to be vitiated.
14. In the present case, the informant (PW-1), the injured
eye-witness (PW-2), eye-witness (PW-3) and eye-witness
(PW-4) have categorically stated that police personnel had
accompanied the accused and they were there throughout
the incident. This fact is noticed by the Trial Court in its
judgement but it fails to get this clarification from the
prosecution as to what occasioned the presence of the
police personnel accompanying the accused and standing
outside the house of the deceased to watch the accused
assault PW-2 and commit the murder of his brother. The
Trial Court had simply brushed aside the argument of the
defence on this count without giving a serious thought.
15. If the police personnel were present at the time of
commission of the offence, they should have immediately
acted upon to set the criminal machinery in motion by first
apprehending the accused from the spot itself rather than
allowing them to get way by accompanying the police to
the Police Station while continuing to assault the injured
(PW-2) on the way. The entire version of the prosecution
witnesses that the police personnel accompanied the
accused and were standing outside the house of the
deceased creates a serious doubt on the very genesis of
the prosecution story.
16. Coming to the evidence of the eye-witness PW-1, the
informant in her report has not assigned any specific role
to any accused. It is only stated that 13 persons came to
her house, some of them chased and followed the deceased
who was trying to save himself by escaping from back
courtyard and entering into the neighbour’s house where
he was done to death. As per the FIR this role is given to
Mozen Phukan, Dulen Phukan and Haren Saikia.
However, in her statement in the trial she has stated that
Kuleswar assaulted with an iron rod whereas Pulen
Phukan caused the injury on the neck of the deceased.
Interestingly, she also states that the accused persons
were taken to the Police Station. She along with Jogmaya
came there and lodged the FIR (Ex.-1) which was written
at the Police Station. In her cross-examination, she states
that she did not read the Ex.-1, it was written at the Police
Station and she had only put her signatures. Ex.-1 was
not read over to her, she did not know the contents of the
same. Then she goes on to state that there were police
along with accused.
17. The statement of PW-1 does not inspire confidence
primarily for two reasons out of many. Firstly, that the FIR
version and the statement during trial are materially
different and secondly, once the deceased had escaped
from the back door of the house of PW-4 and PW-5,
followed by some of the accused, PW-1 would have no
opportunity to reach the house of PW-4 and PW-5 where
the actual assault took place and to witness the manner
in which the crime was committed. It, therefore, appears
to be a tutored version.
18. Robi Pukhan (PW-2), brother of the deceased has also
not seen the occurrence. According to him, initially he was
standing outside his house. Thereafter, when the accused
entered his house, he came inside and by that time Pradip
Phukan (the deceased) had escaped through the back door
to the house of PW-4 and PW-5 and when he tried to follow
Pradip Phukan, he was stopped by the police and the other
accused persons. His version was that he received injuries
from the accused after they had assaulted the deceased
whereas the other eye-witness PW-1 stated that PW-2 was
assaulted along with the deceased. He further states that
police came there and took him to the hospital; he received
injuries on his head and hand. He has again stated that
police personnel had come along with the accused.
Interestingly, there is no injury report on record. The
Investigating Officer (PW-7) had specifically stated that
despite his best efforts, he could not obtain any medicolegal report of PW-2. Thus, the presence of PW-2 is also
19. Jogmaya (PW-3) wife of PW-2 has given a different
version of the incident. According to her, the accused
persons chased her husband and assaulted him and then
the accused persons took her husband to the Police
Station assaulting him all along. Thereafter, she along
with PW-1 came to the Police Station to lodge the FIR. She
had also clearly stated that five police personnel of the
Chabua Police Station had come to her house with the
accused persons and the police witnessed the incident. In
her cross-examination, she admits that she did not enter
the house of PW-4 and PW-5 where the deceased was
assaulted. She states that police had come to apprehend
her husband and the deceased. She further stated that
she did not see all the accused and she did not witness
the assault on the deceased.
20. PW-4 and PW-5 are the husband and wife who reside
in the neighbourhood of the deceased and it is in their
house that the deceased was assaulted. Evidence of PW-4
has been discarded by the Trial Court. With regard to the
manner of assault, her evidence is only relevant to the
extent that an incident took place in her house and not as
to the manner of assault. She, however, states that she
remained in her house till 4PM along with the dead-body
of the deceased till such time police came and took the
21. PW-5 has not stated anything material.
22. PW-6 is the Doctor who conducted the autopsy.
23. PW-7 is the Investigating Officer.
24. Coming to the legal issues, we first deal with the issue
as to whether in the facts and circumstances it was a case
of unlawful assembly and further the accused were
members of the unlawful assembly with common object is
made out or not. Chapter VIII of the IPC deals with
‘Offences Against the Public Tranquillity’. Sections 141 to
149 deal with definition of unlawful assembly, being
member of unlawful assembly, punishment of being part
of the unlawful assembly armed with deadly weapons and
every member of unlawful assembly to be guilty of the
offence committed in prosecution of common object to be
punished under Section 149 IPC. According to Section 149
IPC every member of the unlawful assembly must know
the common object of their assembly and also the offence
likely to be committed in prosecution of the common
25. The evidence of all the eye-witnesses has been
narrated in detail in the earlier part of this judgment. None
of the eye-witnesses have taken names of all the accused
persons who are said to be 13 in number. Only names of
3-4 accused persons are taken who are said to have
assaulted the deceased and the injured PW-2. None of the
eye-witnesses have stated that all the accused persons
had come with a common object of committing murder
and assaulting the injured PW-2. It is also not stated by
any of the eye-witnesses that there were any utterances by
one or many or all the accused that they must eliminate
the deceased and cause injuries to the injured PW-2.
There is no evidence to the effect that any of the accused
exhorted the others saying that they have to eliminate the
deceased and assault the injured (PW-2). Further, it is
clearly stated by the eye-witnesses PW-1, PW-2 and PW-3
that at least five police personnel were accompanying the
accused and that they were standing outside and did not
interfere in the commission of the alleged crime. From the
above it is clear that it is difficult to decipher that all the
members of the unlawful assembly were aware of the
common object.
26. There is one more reason to discard the theory of
unlawful assembly. PW-2 and PW-3 have stated that the
police along with the accused had come to arrest the
deceased and the injured. If that was the object and the
police were taking help of the accused persons then also
the factum of common object of committing the crime of
murdering the deceased is not borne out. It could be that
the common object known to the accused was of
apprehending the deceased and the injured PW-2 as there
was some criminal case registered against them lodged by
Pulen Phukan, one of the accused. In view of the above
analysis, we are unable to hold that there was an unlawful
assembly and further to uphold the conviction under
Section 149 IPC.
27. Now coming to the issue as to whether the named
accused were the actual assailants or not and whether the
eye-witnesses’ version of naming the five accused namely,
Kuleswar, Pulen Phukan, Dulen Phukan, Mozen Phukan
and Haren Saikia can be relied upon to record conviction.
In the FIR, Kuleswar and Pulen Phukan have not been
assigned any role of assault. The role assigned is to Mozen
Phukan, Dulen Phukan and Haren Saikia. PW-1 has
taken the name of Kuleswar assaulting on the leg with an
iron rod and Pulen Phukan assaulting on the neck. In the
cross-examination, she has stated that Dulen Phukan
assaulted on the neck. PW-2 has stated that Kuleswar hit
the deceased with a dao then he says that he did not see
who assaulted Pradip Phukan and later on says that it was
Pulen Phukan who dealt a blow on the neck. PW-3 has
stated that Kuleswar assaulted with an iron rod and Dulen
Phukan assaulted on the neck with an axe. PW-4 has
stated that Kuleswar dealt a blow on the leg with an iron
rod and then Dulen Phukan dealt a blow on the neck of
the deceased with an axe. There is no recovery at the
instance of any accused under Section 27 of the Evidence
Act. The axe, according to the evidence, was left on the
dead-body of the deceased. From the above what is evident
is that Kuleswar’s name was not included in the FIR but
his name has been consistently taken by the eyewitnesses of first assaulting the deceased with an iron rod.
In so far as Pulen Phukan is concerned, his name has been
taken by PW-1 and PW-2 for assaulting on the neck and
whereas PW-3 and PW-4 have taken the name of Dulen
Phukan striking on the neck. Thus, there is material
inconsistency in the statement of the eye-witnesses.
28. Another important aspect to be noted from the
evidence of PW-1, PW-2, PW-3 and PW-4 is that after being
hit by Kuleswar with an iron rod, Pradip Phukan, the
deceased struggled to enter the room and there he was
assaulted on the neck. When according to the prosecution
story itself Pradip Phukan, the deceased had entered the
neighbour’s house it would be very difficult for the eyewitnesses to also have entered the house of PW-4 and PW5 and to witness the assault. PW-1 and PW-3 have not
stated that they also entered the room where the assault
took place. PW-2 has clearly stated that when he tried to
follow Pradip Phukan he was stopped by the accused and
the police personnel who were standing outside.
29. The above evidence creates a very serious doubt on
the entire prosecution story. It is quite possible that the
police personnel of the concerned Police Station were there
to arrest the deceased and his brother and in that process
some resistance may have resulted into the incident
causing the death of Pradip Phukan. The injuries of PW2 have not been proved as admittedly there was no injury
report. Even the scribe of the FIR has not been produced
nor the signatures have been proved. It is quite possible
that it was a complete set-up by the police. They having
committed the murder in the process of arresting the
deceased, and thereafter, knowing the enmity between the
two parties, set-up a false case against the accused.
Apparently for this reason, no explanation has come
forward to explain the presence of the police personnel of
Chabua Police Station throughout the incident.
30. The prosecution has not established the place of
occurrence by any material exhibit of having collected the
blood-stained earth from the place of occurrence. Even
the material exhibit, the axe, which is said to have been
taken into custody by the police whether on the date of the
incident or two days thereafter has also not been produced
nor any evidence led to that effect. It is still a mystery as
to how the Investigating Officer in his statement has stated
that he had filed a charge-sheet against eight accused as
five were absconding and there is no further statement
regarding three more accused being arrested and put to
trial, how the Trial Court proceeded to convict 11 accused
and only two were set to be absconding. Even the scribe of
the FIR has not been examined. It was extremely relevant
when PW-1 has stated that she had no knowledge of the
contents of the FIR.
31. From the above analysis, we are of the view that
although the death of Pradip Phukan was homicidal but
we are not convinced that the prosecution has established
the case beyond reasonable doubt against the accused
appellants. The appellants would be entitled to benefit of
doubt. The appeal is accordingly allowed. The conviction
and sentence are set aside. The appellants are set at
liberty forthwith. They are in judicial custody. They may
be released forthwith, if not wanted in any other case.
32. Pending applications, if any, are disposed of.
MARCH 28, 2023. 


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