Dismissed

Tarun Das, v. the State of Assam and Ors.

Gauhati HC11 Aug 2022Crl.A./43/2012

Case brief

AI extract

What is this about?

An injured victim challenged acquittal in a fatal assault case. The Court dismissed the appeal and declined to disturb the acquittal. It nevertheless directed compensation for the injured victim and the deceased’s dependants or next of kin under the Assam Victim Compensation Scheme, with verification by the District Legal Services Authority.

What did the court decide?

State directed to grant victim compensation after Karimganj District Legal Services Authority enquiry and verification, preferably within three months of receipt of a certified copy.

Tarun Das, Vs the State of Assam and Ors. — Murder and Culpable Homicide | Gauhati HC (2022)

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GAHC010003782012

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.A./43/2012

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TARUN DAS,

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S/O LATE SUMNTA DAS, R/O VILL.BARGOOL, UNDER P.S. R.K. NAGAR, DIST. KARIMGANJ, ASSAM.

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VERSUS

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THE STATE OF ASSAM and ORS,

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Advocate for the Petitioner : MR.A BISWAS

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Advocate for the Respondent : PP, ASSAM

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BEFORE

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HONOURABLE MR. JUSTICE N. KOTISWAR SINGH HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

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JUDGMENT

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Date : 11-08-2022

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( N. Kotiswar Singh, J )

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Heard Mr. A. Tewari, learned Amicus Curiae. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam as well as Mr. A. Ahmed, learned counsel for respondent Nos.2 to 8.

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2. The present appeal has been preferred against the judgement and order dated 30.04.2011 passed by the learned Additional District and Sessions Judge, FTC, Karimganj in Sessions Case No.49/2009 by which all the accused-persons were acquitted by giving benefit of doubt.

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3. Being aggrieved by the acquittal, the present appeal has been preferred by Tarun Das, one of the injured in the incident contending that there are sufficient eye witness accounts and other evidences on record to sustain their conviction.

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4 . However, before we proceed with the appeal, we have noted, as mentioned by Mr. Ahmed, learned counsel, that one of the accused who was acquitted, namely Rabindra Kumar Das, expired during the pendency of this appeal.

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5 . In order to appreciate the contentions of the appellant, which we will be dealing in more detail, we would like to refer to the evidence on record and also the finding recorded by the Trial Court in acquitting the accused by giving benefit of doubt.

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6 . A criminal case was initiated after a First Information Report was lodged by Bimala Bala Das, the mother of the present appellant as well as his other brother, who died in the incident, namely, Satyajit Das.

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7. In the said First Information Report, it has been mentioned that about 1 pm on 15.01.2008, her two sons, Satyajit Das (deceased) and Tarun Das (the appellant herein) went together to Bargool Kali Mandir to offer lut on account of Sankranti and while returning home, when they reached near the house of Indrajit Das (PW1), the accused-persons arrived in a Maruti Van armed with deadly weapons like iron rod, lathi, sword, bhojali, etc., and struck her younger son Tarun Das on his head whereupon he fell down. Her elder son, Satyajit Das then screamed and with the help of neighbours, he took Tarun Das to Kanu Acharya, a Rural Health Practitioner, who lived nearby. There also, the accused-persons came and assaulted her sons thereby causing grievous injuries and threw them on the road. Later on, on being informed by the police, the informant took her injured sons to the hospital but on the way, her elder son succumbed to his injuries. The younger son, Tarun Das, was given treatment in Karimganj Government Hospital. Her younger son also sustained grievous injuries on his head and both the legs. It has been also stated that as she was busy with the funeral of her dead son and treatment of her injured son, there has been delay in lodging the First Information Report. In the said First Information Report, seven persons have been named including the present respondents.

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8. On the basis of the said First Information Report, a police case being R.K. Nagar PS Case No.08/2008 under Sections 147/148 /149/302/307 of IPC was registered on 18.01.2008. Pursuant thereto, investigation was launched and on completion of investigation, police filed charge-sheet against seven accused, namely, Gautam Das, Nimaichand Das, Rabindra Kr. Das, Buddha Das, Arit Namasudra, Nilmani Namasudra and Raju Acharjee.

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9. Before the Trial Court, the accused-persons were charged -

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( i ) for forming an unlawful assembly with weapons in hand and attacking victim Tarun Das and Satyajit Das in prosecution of common object and thereby committing an offence punishable under Section 148 of IPC read with Section 149 of IPC,

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( ii ) for voluntarily causing hurt on the person of Tarun Das by means of various weapons including sharp and pointed weapons and the said act was done in prosecution of common object or the unlawful assembly to cause injury on Tarun Das and thereby committing an offence punishable under Section 324 of IPC read with Section 149 of IPC,

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( iii ) for committing murder by causing death of Satyajit Das and thereby committing an offence punishable under Section 302 of IPC read with Section 149 of IPC.

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10 . In support of its case, the prosecution examined as many as 9 witnesses. The accusedpersons denied the charges and did not adduce any evidence in their defence.

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11. The Trial Court, after considering the evidences adduced by the prosecution, acquitted all the accused by giving benefit of doubt, which is the subject-matter of challenge before this Court.

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12. We will, now, briefly refer to the prosecution evidences.

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13. Prosecution Witness (PW1), Indrajit Das, stated that when the occurrence took place at around 2.30 to 3 pm, he was in his house and a village kirtan was going on at that time in Sannyasibari. On hearing the hullah, he went to the place of kirtan and on the road, he saw Satyajit and his brother, the appellant, lying in injured condition where about 200 to 250 people had gathered. He stated that, however, he cannot say how they sustained the injuries.

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In the cross-examination, he stated that the accused are respected persons in the village and the injured were accused in the murder case of Joy Kumar Das in connection with

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which the deceased was arrested and the injured, Tarun Das, remained absconding. He also stated that he heard that the deceased and the injured had attacked the kirtanees with weapons whereupon the villagers chased them and, as a result, the deceased, Satyajit, fell on the culvert.

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14. PW2, Benu Madhav Acharjee, stated that it was Poush Sankranti and kirtan was going on in the village and he was present in his shop at that time. Seeing the hustle on the road, he enquired from the public, who informed him that the deceased and the injured person had come drunk and attacked the kirtan party. PW2, however, did not go to the place of occurrence and heard that Satyajit and Tarun were beaten up. He stated that he did not witness the assault though he saw both of them lying near his shop. He did not know how they came to that place.

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In his cross-examination, he stated that Satyajit and Tarun had left the village after becoming accused in Jay Kumar Das murder case.

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15. From the above, it is evident that PW2 was not an eye witness, but heard about the incident from other persons. However, he saw the two injured persons near his shop.

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16. The third witness, PW3, is Bimala Bala Das, who is the mother of the deceased as well as the appellant. She stated that her two sons, Satyajit, Tarun and daughter, Manju, had gone to Bargool Kali Mandir for offering lut and she heard from the public that a darbar was going on at Kali Mandir. Coming to the place of occurrence, she saw her two sons lying near the house of Kanu Master. When she asked her two sons about the incident, Satyajit informed her that Nim Das, Gautam Das, Buddha Das, Rabindra Das, Raju Acharya, Amrit Namasudra and Nilmani Namasudra had assaulted them. She and her daughter, thereafter, took Tarun and Satyajit Das to Ramkrishna Nagar Hospital and after 2/3 days, she lodged the Ejahar.

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In her cross-examination, she stated that she did not know if Satyajit and Tarun were accused in the murder case of Jai Kumar Das of the village.

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17. From her evidence, it appears that she was not an eye witness. The only relevant evidence, which can be attributed to her is the statement made to her by Satyajit about the involvement of the accused having assaulted them.

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18. PW4, Digesh Das, was declared hostile. In his examination-in-chief, he stated that at the time of the incident, he was present at the western side of his residence. Hearing a hue and cry, he went to the place of occurrence where he saw Satyajit and Tarun lying on the road in injured condition. He stated that the police did not record his statement.

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In his cross-examination by the prosecution, he denied having stated to the police about the kirtan in the village on the occasion of sankranti and that Satyajit and Tarun were present at the time of offering lut in the Kali Mandir and that Ananda Acharya was the main person among the kirtanees. He also denied having told the police that amongst the assembled kirtanees, Rabindra Das, Ananda Acharya, Kanti Acharya, Amrit Acharya, Amrit Das, Pranjit Namasudra, Swapan Rai, Nilmani Namasudra, Lani Rai, etc. were present and that they had assaulted Satyajit and Tarun and that he also saw Lani Rai assaulting Tarun with a stick and Pranjit assaulting him with a bat.

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In his cross-examination by the defence, he stated that there were many people at the place of occurrence and some of them were from the village and some from outside and at the place of occurrence, he did not find Tarun’s mother. He also stated that he cannot say how Satyajit and Tarun sustained the injuries.

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19. PW5, Dr. Tafajjul Hussain, examined the injured Tarun Das and found the following injuries on his body:-

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“ 1. Adhesive wound about ½ x 5 mm on head.

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2. Swelling on nazal septum and bleeding seen.

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3. A whole 1/2” depth below knee joint and fresh blood seen.”

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He opined that the injuries were simple in nature though caused by sharp weapon.

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In his cross-examination, he stated that the injuries were superficial in nature.

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20. PW6 is Dr. F. Karim, who again examined the injured Tarun Das and found the following injuries:-

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“ 1. Lacerated injury over occipital region 2”x1”x bone deep.

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2. Tenderness on left leg.

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3. Tenderness right leg with abrasion.

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X-ray of skull was normal. X-ray right leg and ankle and hand fracture of right fibula. X-ray left leg normal. All injuries are fresh caused by blunt object. No.1 and 2 injuries are simple in nature. No.3 injury is grievous in nature.”

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He stated that one of the aforesaid injuries was grievous in nature.

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He also conducted the post mortem examination on the body of the deceased Satyajit Das and found the following injuries:-

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“ 1. Lacerated injury right parietal region 4”x ¼” x ¼” x bone deep with fracture of skull.

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2. Lacerated injury right leg 1” x ¼” x 1/4 “ with facture of tibia.

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Cranium and spinal cord

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Fracture of skull as described.

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Membrane – Congested with extra dural and sub dural haemorrhage on right side. Contusion of right cerebral hemisphere.

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Thorax – Wall ribs and cartilage normal.

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Pleura – Congested.

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Larynx and trachea – contains froth.

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Right lung and left lung – normal.

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Pericardium – normal.

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Heart and vessel – normal, contain dark blood.

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Abdomen – walls normal.

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Peritoneum – congested.

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Mouth, pharynx, oesophagus – congested.

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Stomach contains food materials.

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Small intestine contains mucoid matter.

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Large intestine contains faeces.

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Liver, spleen, kidney, bladder – congested.

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Organs of generation – healthy.

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Muscle, bone and joints – Fracture skull and right tibia as already described.”

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According to him, death occurred due to cardio respiratory failure resulting out of cranio cerebral injuries.

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In his cross-examination, he stated that cause of death was due to the head injury.

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21. PW7, Manju Rani Das, is the sister of the deceased and the appellant. She stated that at around 12 noon, Satyajit left her residence for Bargool Mandir and he was accompanied by Tarun. At about 1 pm, she also left her residence and went to Bargool Mandir. On her way to the Mandir, she heard the scream of her brothers from the house of Kanu Acharya and when she went there, she saw the accused Nim Das, Buddha Das, Gautam Das, Ravi Das, Raju Acharya, Amrit Lal Namasudra and Nilmani Namasudra beating Satyajit and Tarun. She stated that Nim Das had a rod, Buddha, a bat, Gautam, a dagger and others had sticks in their hands. She tried to stop them but they did not pay any heed to her. She stated that after assaulting her brothers, they brought them to the road and threw them on the road. Thereafter, lifting her brothers in a vehicle, she and her mother took them to the hospital. On the way, Satyajit died and Satyajit told her mother about the persons, who had assaulted him. Tarun was given first aid in Kalibari and then sent to Karimganj Civil Hospital.

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In her cross-examination, she denied that she did not inform the police that on the day of the incident, she had gone to Bargool Mandir after hearing the scream from her brothers, that she went to the residence of Kanu Acharya and going there, she witnessed accused Nim Das, Gautam Das, Buddha Das, Ravi Das, Raju Acharya, Amrit Lal Namasudra and Nilmani Namasudra assaulting her brothers; and that Nim had a rod, Budha, a bat, Gautam, a dagger and others had sticks in their hands; and that she prevented them from assaulting and that the injured persons were thrown on the road. She also denied having told the police that at about 3 pm on 15.01.2008, she was in her residence and that the police informed that her brothers were lying near the house of Kanu Acharya. Thereafter, she and her mother went there and with the help of police, took them first to Ramkrishna Mission and then to Kalibari Hospital. She also denied that she stated before the police that she did not hear from Tarun about Raju Acharya, Rabindra Acharya and Gautam. She also denied that out of grudge, she had deposed falsely against the accused-persons.

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22. PW8, Tarun Das, is the appellant, who survived the said assault. He stated that at about 12 noon on the day of the incident, he and his brother, Satyajit, went to Bargool Kali Mandir to offer puja. On the way, near the house of Indrajit Das, accused Nimchanda Das, Buddha Das, Nilmani Namasudra, Raju Acharya, Rabindra Das, Gautam Das and Amrit Lal

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Namasudra intercepted them on the road and told them not to come to the village. He stated that Raju Acharya assaulted him on his head with a lathi. Then, his brother, Satyajit, took him to the house of village doctor Kanu Acharya but he was not present at his house. At that time, the accused-persons again came to that house and assaulted him (PW8). He stated that the accused Nimchand Das hit Satyajit’s head with a rod and Buddha hit Satyajit’s head with a bat. Rabindra Das hit his right leg with a lathi. Satyajit sustained injury on his head and he (PW8) received injuries on his head and both of his legs. He stated that while the accused were assaulting them, his sister, Manju Rani, came to the place of occurrence and requested the accused not to assault them. However, all the accused dragged them and threw them on the road. After some time, his mother came to the place of occurrence and enquired about the incident and Satyajit told his mother that the accused had assaulted them. His mother and sister took them to the hospital with the help of the police. On the way, Satyajit succumbed to his injuries. Later on, they were taken to Karimganj Civil Hospital.

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In his cross-examination, he admitted that he and Satyajit were accused in Jai Kumar Das murder case. He also stated that his sister saw the accused-persons assaulting them. He also stated that accused Nimaichand Das was a teacher.

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He denied having not informed the police about the accused-persons striking blow on Satyajit. He denied the suggestion that Pranjit did not hit Satyajit on his head and Lani Roy did not hit his head and Chandramani did not injure him on his legs. He also denied the suggestion that Raju Acharya and Rabindra Das tried to save them. He also denied that he did not inform the police that he did not see Gautam Das near the place of occurrence. He, however, stated that at the time of assault, he did not see Buddha. He also denied the suggestion that when he and Satyajit carried out an attack in a drunken state, they had a fight with Swapan Roy, Lani, Chandramani, Pranjit, etc. and, thus, sustained the injuries. He also denied the suggestion made to him that accused did not assault him and his brother.

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23. PW9, Mohoram Ali Laskar, was the Officer-in-Charge of Kalibari Police Outpost. He deposed that on the day of the occurrence, at about 3.30 pm, one Pabitra Das informed the police that during a kirtan at Borgool village, Satyajit and Tarun rebuked the kirtanees in slang language and started creating a ruckus in the area. Then he made an entry in the General Diary and went to the place of occurrence and found Satyajit and Tarun Das lying in

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injured condition. Then he sent them to Kalibari Hospital for treatment. Thereafter, they were taken to Karimganj Civil Hospital. Satyajit succumbed to his injuries and on 18.01.2018, Bimala Bala Das, mother of the deceased filed an Ejahar before the police. Accordingly, a police case was registered. Though he started investigation and recorded statements of the witnesses, he was transferred and thereafter, he handed over the case diary to the Officer-inCharge of R.K. Nagar PS, Santosh Kumar Das, who, on completion of investigation, submitted the charge-sheet against the accused-persons.

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He (PW9) mentioned about the statement given by Digesh Das (PW4), who was declared hostile, to the effect that PW4 had stated before him that on 15.01.2008 on the occasion of Sankranti, he was present at the village kirtan and there were about 25-30 persons of different age groups present in the kirtan. He also stated that Ananda Acharya was the main person among the kirtanees. At the time of offering lut, Satyajit and Tarun were also present.

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PW9 deposed that the said witness (PW4) stated before him that Rabindra Das, Ananda Acharya, Kanti Acharya, Amrit Acharya, Amrit Das, Pranjit Namasudra, Swapan Rai, Nilmani Namasudra, Lani Rai, etc. were present among the gathered kirtanees and he had seen Satyajit and Tarun being assaulted by the above-named accused-persons and that he had seen Lani Rai assaulting Tarun with a lathi, Pranjit, with a bat.

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During the cross-examination, he stated that regarding the incident of 15.01.2008, about 62 villagers had lodged a written Ejahar stating that Satyajit Das and Tarun Das being armed with dagger and bhujali in a drunken state had attacked the villagers. He also stated that Bimala Bala Das, PW3, stated before him that one Pranjit Roy inflicted blow on the head of Satyajit with a bat and Lani inflicted lathi blow on the head of Tarun. However, he stated that this witness, PW3, did not state before him that the deceased, Satyajit Das, reported to her that Nim Das, Gautam Das, Buddha Das, Rabindra Das, Raju Acharjee, Amrit Namasudra and Nilmani Namasudra had assaulted them.

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PW9 further stated that Bimala Bala Das (PW3) did not state before him that she did not hear anything from Satyajit and Tarun as they were also unconscious.

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PW9 also stated that Manju Rani Das (PW7) did not state before him that she saw accused Nim, Gautam, Buddha, Raju Acharjee, Amrit Lal Namasudra, Lilamoni Namasudra assaulting Satyajit and Tarun. PW9 also stated that the said Manju Rani Das (PW7) did not state before him that she saw the accused Nimai carrying rod in his hand, Buddha carrying a bat in his hand and Gautam carrying a dagger and the other persons were armed with lathi. She also did not state that she tried to resist the said persons.

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PW9 also stated that the said witness (PW7) had stated before him as follows:-

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“At about 3 pm on 15.01.08, I was present at my home. At that time the police informed that Satyajit and Tarun were lying in injured condition at the foothills of Kany Acharya’s house. On being informed, my mother and I went there and found them in morbid condition and at first we took them to Ramkrishna Mission and then to Kalibari Hospital with the help of police.”

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PW9 also stated that Tarun Das (PW8) made the following statement during the

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investigation:-

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“Accused Nimchand Das hit Satyajit on his head with a rod, Buddha Das hit Satyajit’s head with a bat, Rabindra Das hit on my right leg with a lathi and my head and both legs were injured, and our sister Manju requested the accused persons for debarring from assaulting. Satyajit and I told our mother about the assault on us by the accused persons.”

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The I/O (PW9) also stated that PW8 also had made the following statement:-

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“I gave my statement to my mother in restless condition and Raju Acharya and Rabindra Das tried to save us. I had not seen Gautam, Buddha near the PO and Buddha sent a car to the PS to bring the police.”

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24. On completion of recording of evidence of the witnesses of the prosecution, the accused were examined under Section 313 of Cr. P.C. They all denied having knowledge of the incident and of all the incriminating materials attributed to them, and they claimed to be innocent. They also declined to adduce any evidence in their defence.

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25. The Trial Court made an observation that as regards PW1, as can be ascertained from his cross-examination, what he stated was what he had heard from the others. Similarly, the Trial Court observed that from the evidence of PW2, it is clear that he did not go to the place of occurrence and did not see who had assaulted whom and also he did not know how Satyajit and Tarun sustained injuries.

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Similarly, the Trial Court also noted that PW4, at the time of the incident, was in his house and on hearing hullah, he went to the place of occurrence and saw Satyajit and Tarun lying on the road in injured condition. Thus, his evidence does not show as to how they sustained injuries on their persons.

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The Trial Court then observed that from the evidence of PW1, PW2 and PW4, it is clear that they did not see as to who had assaulted Satyajit Das and Tarun Das and as to how they sustained injuries on their bodies. However, their evidences go to show that they found Satyajit and Tarun lying in injured condition on the side of a culvert.

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The Trial Court also noted that from their evidence, it is not revealed as to whether the injured persons met Bimala Bala Das (PW3), mother of the deceased and Manju Rani Das (PW7), sister of the injured persons at the place of occurrence and whether the injured brothers had reported them anything. The Trial Court noted that in their respective evidences, PW1, PW2 and PW4 have not implicated any of the accused persons with the crime in this case.

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26. We have carefully examined the aforesaid observations of the Trial Court.

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27. We have also noted that PW3 and PW7 are perhaps the most important witnesses as far as the prosecution case is concerned as they claimed to have seen the accused-persons assaulting the deceased and the injured.

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28. As regards PW3, the mother of the deceased, the Trial Court noted that there was a suggestion from the defence that she stated before the police that she heard nothing from Satyajit, and her another son Tarun was unconscious, which was later denied by her. PW9, the I/O, who recorded the statement of PW3, stated that PW3 had stated before him that she did not hear anything from Satyajit, and Tarun was unconscious. The Trial Court then drew the conclusion that, from the evidence of PW9, the I/O, it can be ascertained that PW3,

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mother of the deceased, did not state before him that Satyajit had reported her mother that accused Nim Das, Gautam Das, Buddha Das, Rabindra Das, Rabindra Acharjee, Amrit Namasudra and Nilmani Namasudra had assaulted them. The Trial Court also observed that the First Information Report does not show that the deceased Satyajit Das had reported the informant, PW3, that the accused-persons had assaulted him.

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29. The Trial Court also noted that from the cross-examination of PW3, mother of the deceased, it is revealed that police reached the place of occurrence before her arrival.

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In our view also, the aforesaid evidence of PW9, the I/O, is highly relevant to appreciate properly the evidence of PW3, the mother of the deceased. PW3 claims that on reaching the place of occurrence, her deceased-son Satyajit told her as to who had assaulted him and his brother, Tarun, but, on the other hand, evidence of PW9 (I/O) indicates that he had reached the place of occurrence earlier than PW3 after receiving the information on the basis of which a GD Entry was made. Therefore, what can be ascertained is that the I/O (PW9) had reached the place of occurrence earlier than PW3 and when the I/O stated that PW3 reached the place of occurrence later, the possibility of conversation between the mother and the deceased-son by which the names of the accused were mentioned by the injured to their mother does not appear to be very convincing. If the deceased was still in a position to communicate to his mother as to who had assaulted him and his brother, he could have as well communicated the same to the police, when police arrived at the place of occurrence as there is evidence to the effect as stated by the I/O that he had reached the place of occurrence earlier than PW3, the mother of the deceased.

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Similarly, we have also noted that the evidence of PW7, sister of the injured, though stated in similar lines as her mother, does not appear to be corroborated by the evidence of PW9, the Investigating Officer.

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30. As regards the aforesaid witnesses, the Trial Court made an observation in paragraph18 of the judgment that the evidence of PW9 (I/O) suggests that PW7 arrived at the place of occurrence after arrival of the police and she did not see the alleged incident and, as such, the Trial Court seems to have doubted her evidence and, accordingly, did not give much credibility to the evidence of PW3 and PW7, the mother and sister of the deceased

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respectively.

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31. As regards Tarun Das, who had survived the assault, he, too, gave testimony before the Court as PW8.

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32. Before we analyse the evidence of PW8, we would like to remind ourselves that the evidence of a surviving witness during an assault has to be taken much more seriously and placed on a higher pedestal than other witnesses inasmuch as he himself being an eye witness would most unlikely falsely implicate others. Therefore, the evidence of such person has to be given more credence and cannot be lightly considered.

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33. Keeping the aforesaid principle in mind, we will proceed to examine what the Trial Court had observed about the evidence of PW8.

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34. The consideration of the evidence of PW8 by the Trial Court is to be found at para No.19 of the impugned judgment whereby the Trial Court after assessing the evidence made the observation that the evidence of PW8, Taurn Das, is not free from contradictions.

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35. The Trial Court observed that in his deposition, PW8 had deposed that the accused Nimaichand struck blows on the head of Satyajit by means of a rod and Buddha Das struck blows on the head of Satyajit by means of a bat and the accused Rabindra Das inflicted lathi blow on his right leg. But from the evidence of PW9, the Investigating Officer, it has been revealed that in course of the investigation, the said witness, PW8, Tarun Das, did not mention those facts to the I/O.

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The incriminating facts mentioned by PW8 during the testimony in the trial were not mentioned before the I/O when his statement was recorded under Section 161 of Cr.P.C., which in the present case would amount to material contradiction in terms of “Explanation” in Section 162 of Cr.P.C. as these are very vital aspects.

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36. Trial Court further went on to observe that though according to PW8, Tarun Das, at the time they were assaulted by the accused, his sister, PW7, Manju Rani Das, came to the place of occurrence and requested the accused persons not to assault them and thereafter, PW3, his mother Bimala Bala Das, also arrived and whereupon, he and Satyajit reported to their mother (PW3) that they were assaulted by the accused.

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However, the Trial Court also noted that these facts were not mentioned by PW9, the Investigating Officer of having been told to him by PW8. In fact, the Investigating Officer has categorically stated that these were not disclosed to him by the injured Tarun Das (PW8) during the investigation.

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37. The Trial Court also made the observation that during the investigation, what PW8 (Tarun Das) had stated before PW9 (the Investigating Officer) was that Swapan Roy and Loni Roy were the ones who had assaulted him causing injuries and one Pronojit struck blows on the head of Satyajit. The said Pronojit, however, has not been indicted. Further, PW9 also stated that PW8, Tarun Das, had stated before him that the accused Raju Acharjee and Rabindra Das had tried to save him and that he (Tarun Das, PW8) did not see the accused Gautam and Buddha Das at the place of occurrence. Because of the aforesaid contradictions in the evidence of PW8, the Trial Court did not appear to have been convinced by the statement of PW8.

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The Trial Court rather held that the aforesaid improvements amounts to embellishment and these were not stated by PW3, PW7 and PW8 when they made their statements before the PW9 (Investigating Officer) under Section 161 of Cr.P.C. which would amount to material contradictions and as such these could not be relied upon.

¶135

38. In this regard, the Trial Court referred to the decision of Hon’ble Supreme Court in Bimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and Another, reported in 2003

¶136

SCC (Cri) 596 wherein the Hon’ble Supreme Court held that when a witness did not state a particular fact to the police in the course of investigation, and prosecution seeks to prove the said fact through that witness, evidence of that witness regarding the said fact cannot be of any value.

¶137

39. In the light of the above observations by the Learned Trial Court, we have also given our anxious consideration on the evidence of PW8.

¶138

40. As can be seen from above, while there seems to be some discrepancies in the evidences of PW3 and PW7, i.e. the mother and sister, who though made specific allegations against the accused persons of having assaulted the deceased and his brother based on the information apparently furnished to them by the deceased and PW8, yet, as discussed above,

¶139

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it appears that these witnesses, PW3 and PW7 did not mention these facts before the Investigating Officer during investigation. PW9 (I/O) also testified to the effect that these witnesses (PW3 and PW7) did not mention these facts before him in course of the investigation.

¶141

41. It is also on record that PW3 and PW7 were not eye witnesses inasmuch as they came to the place of occurrence after the incident took place. Therefore, whatever they learnt is based on the statement made by some others. To that extent, it would amount to hearsay evidence. However, we have also noted that if the dying person states something to another person, it is an exception to hearsay evidence and it can be relevant under Section 8 of the Indian Evidence Act, 1872.

¶142

42. Similarly, the evidence of the injured witness who testified before a Court also must be given due weightage and cannot be lightly dealt with.

¶143

43. Under the circumstances, we have to scrutinize further as to the reason the Trial Court did not rely upon their statements while acquitting the accused.

¶144

44. As far as the information which was stated to have been given by the dying person Satyajit to his mother (PW3) to the effect that the accused persons had assaulted him in the manner narrated by PW3 in her testimony, what we have noted, as also contended by the learned counsel for respondent Nos.2 to 8, is that these facts were not mentioned in the FIR even though the FIR was lodged after two days of the incident. If Satyajit had indeed mentioned the names of the two accused to his mother, who is the informant, their names ought to have been reflected in the FIR which is not the case. Further, the evidence does not clearly indicate that when the mother arrived at the place of occurrence, whether Satyajit was in a position to mention the names of these persons inasmuch as records show that the police had arrived at the place of occurrence also. In fact, PW9, the Investigating Officer states in his evidence that after he arrived at the place of occurrence, the mother and daughter arrived. The evidence suggests that the police arrived at the place of occurrence before the arrival of the mother and sister of the injured. If Satyajit could mention the names of the two accused to his mother, we do not find any reason why he could not mention their names to the Investigating Officer as well who had arrived at the place of occurrence prior to

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arrival of PW3 and PW7.

¶147

45. PW7 stated in her deposition that Satyajit informed his mother the names of the accused persons who had assaulted him in her presence. During the cross-examination, the defence had drawn attention of the witness (PW7) to her previous statement made before the Investigating Officer to the effect that “ At about 3 pm on 15.01.08, I was in my residence. At that time the police informed that Satyajit and Tarun was lying on the foot of the house of Kanu Acharya. On being informed, going there me and my mother found them in morbid condition and with the help of police we took them at first to Ramkrishna Mission and then to Kalibari Hospital.”

¶148

Pointing to this, learned counsel for the respondent Nos.2-8 submits that if Satyajit had indeed mentioned the names of the accused to his mother, which was allegedly heard by his sister (PW7), their names ought to have found place in her statement recorded under Section 161 of Cr.P.C. This aspect has been confirmed by PW9 (Investigating Officer), who stated that PW7 had made the aforesaid statement recorded under Section 161 of Cr.P.C., which was brought to the notice of PW7 by the defence in the cross-examination as referred to above.

¶149

46. Thus, from the evidence of PW9, the Investigating Officer, it appears that PW7 did not state the incriminating facts mentioning the names of the accused being informed by Satyajit to his mother at the place of occurrence.

¶150

47. To that extent, we also feel that it can amount to material contradictions under Explanation to Section 162 of Cr.P.C. and will be unsafe to rely on the same.

¶151

48. Similarly, what we have noted is that, on the other hand, PW3, Bimala Rani Das, mother of the deceased Satyajit apparently had stated before the Investigating Officer that it was one Pronojit who had inflicted lathi blow on the head of Tarun. But the said Pronojit has not been charged.

¶152

49. PW9, the Investigating Officer, further clarified during his cross-examination that the said witness Bimala Rani Das (PW3) did not state before him during the investigation that the deceased Satyajit had reported to her that Nimai Das, Gautam Das, Buddha Das, Rabindra Das, Raju Acharjee, Amrit Namasudra and Nilmoni Namasudra had assaulted her sons. The Investigating Officer further stated during his cross-examination that Bimala Bala Das had stated before him that she did not hear anything from Satyajit and Tarun Das, who was also

¶153

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unconscious.

¶155

50. Thus, we are of the view that the said evidence of PW3, Bimala Das that Satyajit had stated to her that the accused persons had assaulted him does not appear to have been convincingly proved as the same is not corroborated at all by the evidence of the Investigating Officer, PW9.

¶156

51. Under the circumstances, we are reluctant to give too much reliance on the aforesaid statement of the deceased which was apparently made to his mother (PW3).

¶157

52. That leads us to the evidence of PW8, the surviving injured witness.

¶158

53. As we have already discussed, PW8 categorically mentions the names of the accused persons who had assaulted him and Satyajit. Therefore, we will examine as to whether his statement can be relied upon or if there is any material contradiction as contended by the learned counsel for respondent Nos.2 to 8, to render his evidence unreliable.

¶159

54. Though PW8 had categorically mentioned the names of the accused persons, respondent Nos.2-8 herein, yet, what we have also noted is that he did not mention these names in his statement made under Section 161 of Cr.P.C. which has been amply demonstrated in course of the cross-examination of the Investigating Officer (PW9).

¶160

55. Referring to the evidence of PW8, Tarun Das, who survived the assault, PW9, the Investigating Officer, specifically stated in his deposition during the cross-examination that Tarun Das, PW8 did not state before him during the investigation that “ accused Nimchand Das hit Satyajit on his head with a rod, Buddha Das hit Satyajit’s head with a bat, Rabindra Das hit on my right leg with a lathi and my head and both legs were injured, and, our sister Manju requested the accused persons for debarring from assaulting. Satyajit and I told our mother about the assault on us by the accused persons .”

¶161

56. On the other hand, PW9, the Investigating Officer stated that during the investigation, the said Tarun Das (PW8) had stated that it was Swapan Roy and Loni Roy, who had assaulted him causing injuries and it was Pronojit who struck the blow on the head of Satyajit, causing injuries.

¶162

Interestingly, the said Swapan Roy and Loni Roy have not been arrayed as accused and no charges have been framed against them and there is no objection raised from anyone

¶163

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including the victim-appellant during the trial.

¶165

57. As per the Investigating Officer (PW9), what was stated by PW8 was that it was Pronojit who struck the blow on the head of Satyajit. The said Pronojit is also not an accused in the present proceeding. In other words, the persons who had been specifically mentioned by PW8 during the investigation as assailants were not made accused in this trial and on the contrary, persons who the witness had stated before the Investigating Officer had helped them, have been made accused.

¶166

58. PW9, the Investigating Officer stated that PW8, Tarun Das, had given the statement that it was Raju Acharjee and Rabindra Das who tried to save them and he did not see Gautam Das and Buddha near the place of occurrence and it was Buddha who arranged to send a car to the Police Station to bring the police. Thus, if Tarun Das, PW8 had made the statement before the police during the investigation to the effect that it was Raju Acharjee, Rabindra Das, Gautam and Buddha who were extending their helping hands to the victims, it will be difficult to accept the said evidence of PW8 that they were portrayed as assailants during the trial.

¶167

In fact, the role is reversed from being good samaritans to assailants which, perhaps, makes it difficult for us to accept the evidence of PW8 as reliable on key and fundamental aspects of the incident. Certainly, anybody who has been initially shown to have come to the help of a person cannot become an assailant.

¶168

59. Under the circumstances, we also feel that there are material contradictions in the evidence of PW8.

¶169

Though PW8 mentions the name of other accused, namely, Nimai Chand Das, Amrit Namasudra and Nilmoni Namasudra, however, the exact role played by each of the individuals have not been mentioned by PW8 in his evidence except for stating that these people along with other accused assaulted them. In fact, in the testimony before the Court, PW8 assigns a specific role to Raju Acharjee of having assaulted him on head with lathi, while as per evidence of the Investigating Officer (PW9), PW8 had stated before him (the Investigating Officer) that Raju Acharjee had helped him. Similarly, other person who has been specifically named in his deposition is Nimai Chand Das by stating that it was Nimai Chand Das who hit

¶170

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Satyajit with a rod. However, the role of Nimai Chand Das has not been mentioned in the statement made under Section 161 of Cr.P.C. except by stating that he was instigating the others.

¶172

Similarly, in his deposition before the Trial Court, Buddha Das has been specifically mentioned as the one who hit Satyajit with a bat. On the same line, Rabindra Das also has been mentioned as the one who hit PW8 on his right leg with a lathi. Apart from these names, no other names have come out with specific role by each of the persons. On the other hand, as mentioned above, though Buddha Das and Rabindra Das have been accused as assailants during the trial, they were shown as those who had rendered help to him as stated by PW8 in his statement, as per statement given by him before the Investigating Officer during investigation, which has been corroborated by the Investigating Officer during his cross-examination.

¶173

60. Thus, what we see is that though PW8 had mentioned the names of Nimai Chand Das, Amrit Namasudra and Nilmoni Namasudra as his assailants, it has not come out in the evidence with the specific roles played by each of them in assaulting him and his brother. Further, in his statement recorded under Section 161 of Cr.P.C., they were the persons who had come to his aid when the assault took place as mentioned above, which were brought to the notice of PW8 during the cross-examination.

¶174

61. Further, when we come to the evidence of PW9 (the Investigating Officer), PW8 apparently had stated before him that it was Swapan Roy and Loni Roy who had assaulted him causing injuries and Prosonjit who had struck blow on the head of Satyajit. In our opinion, the aforesaid contradictions are not mere discrepancies but which go to the root of the matter by reversing the role of the accused. Further, the persons who have been specifically named as assailants in his statement recorded under Section 161 of Cr.P.C. have not been made accused.

¶175

62. Thus, in our view, the conviction of the accused, on the evidence of the PW8 though deserves to be taken seriously, will not be advisable because of the material contradictions as discussed above. The acquittal by the Trial Court, accordingly, in our view, cannot be said to be perverse.

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63. In this regard, we may refer to the decision of the Hon’ble Supreme Court in Gorle S. Naidu Vs. State of A.P. and Ors., (2003) 12 SCC 449 wherein the Hon’ble Supreme Court emphasized the principle which is to be followed while considering the case of acquittal by the Appellate Court .

¶178

The relevant portion of the aforesaid decision in Gorle S. Naidu (supra) reads as follows,

¶179

“ 15. The respective stands need careful consideration. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not . [See Bhagwan Singh and Ors. v. State of Madhya Pradesh , [2002 (2) Supreme 567]. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra, [AIR 1973 SC 2622), Ramesh Babulal Doshi v. State of Gujarat , [1996 (4) Supreme 167], Jaswant Singh v. State of Haryana , [2000 (3) Supreme 320], Raj Kishore Jha v. State of Bihar and Ors ., [2003 (7) Supreme 152], State of Punjab v. Karnail Singh , [2003 (5) Supreme 508] and State of Punjab v. Pohla Singh and Anr ., [2003 (7) Supreme 17] and Suchand Pal v. Phani Pal and Anr, [JT 2003 (9) SC 17]. ”

¶180

64. In the present proceeding, we do not find that there is any major perversity with the order of acquittal which is apparent on the record which would require our interference.

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Though there may be strong suspicion against the present respondents, because of the material contradictions which have been highlighted by learned counsel for respondent Nos.28, we decline to interfere with the order of acquittal of the respondent Nos.2-8.

¶183

65. For the reasons discussed above, we do not find any merit in the present appeal and accordingly, the same is dismissed.

¶184

66. While going through the order of acquittal, what we have noted is that no direction was issued by the Trial Court regarding grant of compensation to the victim or his dependents/kith or kin as contemplated under Section 357-A of Cr.P.C. which was incorporated in the Cr.P.C. by Amendment Act 5 of 2009 which came into operation w.e.f. 31.12.2009 whereunder, the victim or his/her dependents who have suffered loss of life or injury are entitled to be provided with certain compensation. Sub-Section (2) of Section 357A of Cr.P.C. provides that where the Court recommends for payment of compensation, the District Legal Services Authority or the State Legal Services Authority shall decide the quantum of compensation to be awarded under the Scheme prepared by the State Governments under Sub-Section (1) of Section 357A of Cr.P.C.

¶185

It has been brought to our notice that Government of Assam has already prepared a scheme known as Assam Victim Compensation Scheme, 2012 in exercise of powers conferred by Section 357-A of Cr.P.C. in co-ordination with the Central Government which was notified on 18.10.2012.

¶186

Para 5 of the aforesaid Scheme, 2012 provides as follows,

¶187

“ 5. Procedure for Grant of Compensation -

¶188

1. Whenever a recommendation is made by the Court or an application is made by any victim or his dependents under sub-section (2) of Section 357-A of the Act, to the State Legal Services Authority or the District Legal Services Authority, as the case may be, the said Authorities respectively shall examine the case and verify the contents of the claim with regard to the loss or injury caused to victim and arising out of the reported criminal activity and may call for any other relevant information necessary in order to determine genuineness. After verifying the claim, the District Legal Service Authority or the State Legal Services Authority, as the case may be, shall, after due Inquiry, award compensation within two months, in accordance with provisions of this Scheme.

¶189

2. Compensation under this Scheme shall be paid subject to the condition that

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if the trial court while passing judgment at later date, orders the accused person to pay any amount by way of compensation under sub-section (1)(b) of Section 357 of the Act, the victim/dependents shall remit an amount of compensation, or the amount ordered equal to the amount of compensation or the amount ordered to be paid under sub-section (3) of Section 357 of the Act, whichever is less. An undertaking to this effect shall be given by the victim/dependents before the disbursal of the compensation amount.

¶192

3. The District Legal Services Authority shall decide the quantum of compensation to be awarded to the victim or these dependents on the basis of loss caused to the victim, medical expenses to be incurred on treatment, minimum sustenance amount required for rehabilitation including such incidental charges as funeral expenses etc. The Compensation may vary from case to case depending on facts and circumstances of each case.

¶193

4. According to the Schedule of this Scheme, the quantum of compensation to be awarded under the Scheme shall be disbursed to the victim or his dependents, as the case may be, from the Fund.

¶194

5. Compensation received by the victim from the Central Government, State Government, Insurance Company or any other institution in relation to the crime in question namely, insurance, ex-gratia and/or payment received under any other Act or State-run-scheme, shall be considered as part of the compensation amount under this scheme and if the eligible compensation amount exceeds the payments received by the victim from collateral sources mentioned above, the balance shall be paid out of the Fund.

¶195

6. In fixing the quantum of compensation, regard must be had to the minimum wages and schedule to motor vehicle act, 1998.

¶196

7. The State or the District Legal Services Authority, to alleviate the suffering of the victim, may order for immediate first aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer-in-charge of the police station or Magistrate of the area concerned or any other interim relief as it may deem fit.

¶197

8. The compensation to the victim under this scheme shall not exceed the maximum amount prescribed in the Schedule.

¶198

9. State Government may review the maximum limit of compensation indicated in the Schedule by issuing official notification from time to time.”

¶199

Para 2(f) of the Assam Victim Compensation Scheme, 2012 defines “victim” as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir.

¶200

67. Though the incident had happened in the year 2008, the fact remains that the trial was concluded by way of acquittal vide judgment dated 30.04.2011 by which time the

¶201

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amendment in the Cr.P.C. had come into effect, and, as such, we are of the view that the kith and kin or dependents of the deceased victim as well as the injured would be entitled to compensation under the Assam Victim Compensation Scheme, 2012 as amended from time to time.

¶203

68. Though the said Scheme came into existence after passing of the order of acquittal, since the appeal has been taken forward before this Court, we are of the view that merely because the Scheme was prepared in 2012, it will not prevent the State from granting appropriate compensation under the aforesaid Scheme considering the nature of the case.

¶204

69. The quantum of compensation to be paid under the aforesaid Scheme has been revised from time to time.

¶205

As per the last revised Notification issued, i.e. 01.02.2019, in respect of death the minimum amount has been fixed as Rs.5,00,000/- (Rupees five lakhs) only and the same amount has been also fixed as the maximum amount also, and in respect of permanent disability (80% or more) the minimum amount fixed is Rs.2,00,000/- (Rupees two lakhs) only and in respect of partial disability (40% to 80%), the minimum amount has been fixed at Rs.1,00,000/- (Rupees one lakh) only and the maximum amount has been fixed at Rs.4,00,000/- (Rupees four lakh) only.

¶206

70. Accordingly, we would direct the State Government to grant appropriate amount of compensation to the dependants or next kith and kin of deceased Satyajit and also to the surviving injured victim Tarun Das as per the aforesaid Notification dated 01.02.2019 under the aforesaid Scheme for which Karimganj District Legal Services Authority will conduct the necessary enquiry and verification and submit a report to the competent State authority for grant of adequate amount of compensation under the aforesaid Scheme for which the Karimganj District Legal Services Authority will render all necessary assistance to the victims, which shall be undertaken as expeditiously as possible, preferably within a period of 3(three) months from the date of receipt of a certified copy of this order.

¶207

71. A copy of this order be furnished to the Member Secretary, Assam State Legal Services Authority as well as to the Secretary of Karimganj District Legal Services Authority for doing the needful.

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72. We would like to place on record the able assistance rendered to this Court by Mr. Atal Tiwari, learned counsel in conducting this appeal as Amicus Curiae who will be paid the honorarium at the rate fixed under the Rules.

¶210

73. With the above observations and directions, the present appeal stands disposed of.

¶211

74. LCR be remitted forthwith to the concerned Trial Court.

¶212

JUDGE JUDGE

¶213

Comparing Assistant

Tarun Das, v. the State of Assam and Ors.

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Tarun Das, v. the State of Assam and Ors.

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