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. 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.
The charge-sheet was submitted finding prima facie case for trial under Sections 147, 148, 149, 447, 448, 324, 326 and 302 IPC.
PW 1- informant and eye-witness: Smt.
Nareswari Phukan (sister-in-law of the deceased); ii. Jogmaya Phukan (sister in law of the deceased) ; iv.
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. 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. 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 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. On seeing the accused persons coming, the deceased went out through the back door of the house then the accused persons chased him. The accused also entered Bhuban’s house and assaulted Pradip, the deceased. However, on seeing the accused persons entering the house, he also came in.
On the day of the occurrence police along with the accused came to his house searching for him and his brother (deceased). 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. She also states that the accused had left the axe which was the weapon of assault on the body of the deceased. Incised wound 4 x 2 cm x bone deep in the lateral side of the left elbow.
Also Read: https://newslaw.in/case-type/civil/doctrine-of-necessity-in-a-societys-election-meeting/
Incised wound 4 x 2 cm x bone deep in the lateral side of the left elbow. He also states that the earlier Investigating Officer Dhirendra Saikia had collected the post-mortem report 19 from the Medical College and had not done any investigation in the case. 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 deceased. 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. 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. 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. 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 24 in which the crime was committed.
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. In her cross-examination, she admits that she did not enter the house of PW-4 and PW-5 where the deceased was assaulted. 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. 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 object.
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. 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.
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.
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. 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. The appellants are set at liberty forthwith.
Also Read: https://newslaw.in/case-type/civil/delay-and-laches-in-land-allotment-case/
They may be released forthwith, if not wanted in any other case.
Case Title: PULEN PHUKAN AND ORS. Vs. THE STATE OF ASSAM (2023 INSC 305)
Case Number: Crl.A. No.-000906-000906 / 2016
