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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