Gauhati High Court
Ramesh Bhuyan vs State Of Assam on 24 August, 2012
Author: P.K.Saikia
Bench: A K Goel, P.K. Saikia
1
IN THE GAUHATI HIGH COURT
THE HIGH COURT OF ASSAM, NAGALAND.MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH
Criminal Appeal (J) No.156/2007
Ramesh Bhuyan,
Son of Sri. Birsa Bhuyan.
R/O: Mutock T.E.,
P.S.: Lahoal,
District-Dibrugarh : Accused/ Appellant
Versus
State of Assam : Respondent
PRESENT THE HON'BLE CHIEF JUSTICE MR A K GOEL THE HON'BLE MR JUSTICE P.K. SAIKIA For the accused/appellant : Ms R.D. Mazumdar, Amicus Curiae.
For the respondents : Mr D Das, Addl PP Assam.
Date of hearing : 06.08.2012
Date of judgment and order :
JUDGMENT AND ORDER (CAV)
(P.K.Saikia, J)
1. This jail appeal is directed against the judgment dated 06.08.07 passed by the learned Sessions Judge, Dibrugarh in Sessions Case No.10/06 convicting accused/appellant under Section 302/34 IPC and sentencing him to suffer imprisonment for life and to pay a fine of Rs.3000/- in default R.I. for another period of three months for the offence aforesaid.
Crl. Appeal No.156(J)2007 2
2. Being aggrieved by and dissatisfied with, accused/appellant preferred this present appeal.
3. The facts necessary for disposal of the present appeal, in short, are that on 05.05.05, there is a quarrel between Ramesh Bhuyan and Rajesh Bhuyan, both are the sons of one Birsa Bhuyan of Muttak Tea Estate under Lahoal Police Station. During the quarrel, Ramesh Bhuyan inflicted dao blows on Rajesh Bhuyan which caused his instantaneous death. An FIR to that effect on being lodged by said Birsa Bhuyan with O/C Lahoal Police Station, Police registered the same and ordered investigation.
4. During the course of investigation, Police visited the place of occurrence, got an inquest done on the dead body with the help of the Executive Magistrate, sent the same to hospital for post mortem examination, seized a dao, allegedly used in committing the crime on the strength of seizure list Ext.5, arrested the accused person and on completion of the investigation, he submitted the charge sheet under Section 302 IPC against the accused person and forwarded him to the Court to stand his trial there.
5. The Magistrate, before whom the charge sheet was so laid, committed the case to the Court of Sessions since the offence under Section 302 IPC is exclusively triable by the Court of Sessions. Learned Sessions Judge after commitment of the case and on hearing the parties, framed charge under Section 302 and charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried.
6. During trial, the prosecution side has examined as many as 10 witnesses including the Medical Officer who conducted autopsy on the Crl. Appeal No.156(J)2007 3 dead body of the person aforesaid. The statement of the accused person under Section 313 CrPC was recorded. Accused plea was of total denial. However, on being required, he declined to adduce any evidence of his own. On conclusion of trial and after hearing the parties, learned Trial Court held the accused of offence under Section 302 IPC, convicted him there-under and sentenced him to punishment as aforesaid. It is that judgment which has been assailed herein this appeal.
7. Before putting the rival arguments, advanced before us by the counsel for the parties , on the touch stone of judicial scrutiny, we find it necessary to have a brief review of the evidence on record and the evidence of Doctor is first taken up for consideration. Dr. H.K. Mahanta, who conducted the post mortem examination on the dead body of the deceased, on 06.05.05 at Dibrugarh Medical College & Hospital, was examined as PW 9. His findings are as follows:-
"A male dead body of average built, wearing a ganjee, half-pant and jangia. Rigormortis was present in all limbs of the body. Injuries:
1. One stab wound measuring 1'5 x 0'5 cms x 4cm on outer part of the right arm in the middle.
2. One incised wound measuring 4 x1 cm x bone deep on occipital region mostly on right side. The underlying occipital bone is incised measuring 3 x 0'5 cm through which brain tissues come out.
3. One scratch wound (abrasion/measuring 14 x 0'2 cm onfront of abdomen in the middle part placed horizontally.
4. One abrasion (scratch/wound 6 x 0'2 cm at the front of nexk upper part placed obliquely upwards and to left.
5. One abrasion (scratch/wound measuring 12 x 0'5 cm on the front of neck middle part 2 cm above the injury No.3
6. One abrasion (scratch/wound measuring 8 x 0'2 cm on left side of the front of neck upper part placed obliquely downwards to the left.
Scalp and skull were incised as described in injury No.2. Membrance was incised under injury No.2.
Brain was found congested with incised wound measuring 3 cm x 0'5 cm at right occipital bone under Injury No.2. Crl. Appeal No.156(J)2007 4 All other organs were healthy.
Stomach found healthy and empty.
In the opinion of Doctor, Death was due to coma resulting from head injury. All injuries were antemortem. Injury Nos. 1 and 2 were caused by sharp cutting pointed weapon and other injuries were caused by blunt object. The injuries were homicidal in nature.
In his cross examination, Doctor had stated that stomach of the deceased was found empty. So he cannot say whether the deceased consume any alcoholic substance prior to his death. "
8. The evidence of Doctor reveals that the deceased sustained wounds on his body before his death and the wounds No.1 and 2, above, were sufficient enough to cause the death of the deceased. From the above, it appears that the death of deceased was homicidal in nature.The accused did not deny the fact that deceased died a homicidal death.
9. So situated, let us consider the testimonies of other witnesses. PW 1 Shri Birsa Bhuyan is the informant and the father of the accused as well as the deceased. According to him, on the fateful night, he was sleeping in one of the rooms of his house. His two sons were sleeping in the adjacent room. At night the cry of his wife woke him up from sleep and thereafter, he found his son Rajesh Bhuyan lying dead inside his house. His wife Sukormoni told him that accused Ramesh, his son, inflicted blows with a dao on his brother which occasioned his death.
10. When he enquired the accused as to why he killed his brother, he confessed to killing his brother and he, thereafter, lodged an FIR with the Police. In his cross examination, he has admitted that the deceased was alcoholic and used to quarrel with the people. Even on the date of occurrence, deceased consumed alcohol and quarreled with people outside his house.
Crl. Appeal No.156(J)2007 5
11. PW 2 Sri Dinesh Bhuyan, is the son of the accused, he also residing in the same house. He deposed that on the fateful evening after dinner, he came out of his house. When he was a little away from his house, his brother-in-law told him that there was a quarrel going on in his house. He, thereafter, returned to his house and saw the deceased lying death with wounds on his body. In the meantime, his father Ramesh went to his sister house. Sukormoni, his mother, told him that accused inflicted injuries on the deceased.
12. Police was informed, Police came and apprehended the accused from his sister house. During the course of investigation, the accused produced a dao before the Police which the later seized from the accused. In his cross examination, he has stated that on the fateful night, after taking dinner, he came out of his house to join his duty and as such, he did not witness the occurrence in question.
13. PW 3 Smti. Sukormoni Bhuyan is the mother of the deceased and the accused. She deposes that on the fateful night at the relevant time, she was grinding spices in the kitchen, Ramesh was inside their house. In the meantime, Rajesh came home. Soon thereafter, she heard hue and cry. She came out of kitchen and went to the room of her sons. Arriving there, she saw Rajesh lying on the ground with many wounds on his person. He also sustained wound on his head as well.
14. Her son Ramesh was also there at that time but he left such place thereafter and did not return home for whole of the night. Her son Rajesh died on that night itself. After his death, her husband reported the matter to the Police. In her cross examination, she has stated that she did not witness the incident in question; that the deceased was alcoholic and that he used to quarrel with people.
Crl. Appeal No.156(J)2007 6
15. PW 4 Sri Ananda Gosai is a casual labour. According to him, his house is situated just in front of the house of the accused person. On the fateful night at about 11 pm, he came from duty. On arriving his gateway, he saw many people conversed at such place. His wife told him that Ramesh had cut Rajesh. Thereafter, he went to the house of the accused person and saw the deceased lying dead on the ground with injuries on his body.
16. He did not find the accused in his house at that time. Next day, in the morning, Police came there and conducted an inquest on the dead body. In his cross examination, he admitted that he was not there at the place of occurrence when the incident in question took place.
17. PW 5 Sri Buban Gosai is also a casual labour. He deposes that on the fateful evening there was a hue and cry coming from the house of the accused person. Initially, he believed it to be a simple quarrel between the family members of the accused person. However, in the morning, when he went to the house of the accused person, he saw Rajesh lying dead in his house. The mother of the accused told him that accused Ramesh cut his brother with a dao. In the meantime, Police came there and held an inquest on the dead body. He was declared hostile.
18. PW 6 Sri Gakul Bhuyan deposes that one day in the morning, he went to the house of the accused person and found some Police personnel there. He also saw the body of the deceased there. Police got an inquest done on the dead body of the deceased. The father of the deceased told him that there was a quarrel between the accused and the deceased following which Rajesh met his death. In his cross examination, he has stated that deceased Rajesh used to take liquor quite occasionally.
Crl. Appeal No.156(J)2007 7
19. PW 7 Sri Tirtush Orang also a garden labour. He deposes that one day at about 11 pm, he returned home after attending his duty. On arriving at the place of occurrence, he found many people conversing at such place. He came to know that Ramesh had killed Rajesh.
20. PW 8 Sri Bhushan Ekka a garden labour. It is in his evidence that his house is situated near the house of the accused person. One day in the morning, he saw many people to have assembled in the house of the accused person. On going there, he saw Rajesh lying dead inside their house. Mother of the accused Ramesh told him that Ramesh cut his elder brother Rajesh with a dao. In his cross examination, he has admitted that he did not tell the Police that mother of the accused told him that accused had cut his elder brother with a dao.
21. PW 10 Sri Nani Gopal Deka is the Investigating Officer of the case. According to him, on receipt of the FIR from one Birsa Bhuyan, O/C Lahoal Police Station registered a case and entrusted the PW 10 to investigate the same. During the course of investigation, he went to the place of occurrence accompanied by a Magistrate Jogesh Borah, who conducted an inquest on the dead body of the deceased and in that connection, he had also prepared an inquest report as well which was proved as Ext.3.
22. Thereafter, PW 10 made necessary arrangement for sending the dead body to hospital for post mortem examination. He also seized the dao from the house of the sister of the accused on being produced by the accused person. The dao so seized was proved as material Ext.1 and is said to be the weapon used in committing the crime. He also arrested the accused person, collected the post mortem report and on completion of Crl. Appeal No.156(J)2007 8 the investigation, he submitted charge sheet under Section 302 IPC against the accused person.
23. In his cross examination, he has stated that the accused confessed his guilt before him and also delivered the dao material Ext.1 aforesaid which he seized on the strength of seizure list Ext.5. It is also in his evidence that after the incident, the accused took shelter in his sister house. He, however, denied the suggestion that dao was not recovered from the possession of the accused person.
24. Above being the evidence on record, let us see how far such evidence makes out the charge against the accused person. On the perusal of the record, we have found that none of the witnesses, examined here, witnessed the incident in question which is why the prosecution has relied number of circumstances to make out the allegation brought against the accused person.
25. On our perusal of the evidence on record, particularly, the evidence of PW 3, we have found that on the night in question, there was a quarrel between the accused and the deceased and such quarrel took place in their own house. Her evidence further reveals that the quarrel, above, ended up injuring quite severely one of the sons of the PW 3. He was none other than the deceased, Rajesh Bhuyan. The deceased succumbed to the injuries sometime in the night aforesaid.
26. These claims of PW 3 find unfettered support from PW 1 and PW 2. Even PW 4 and PW 5 lends support to the claim of PW 3 that on the night in question, the deceased met his death, and that too, in his own house. The evidence rendered by them further shows that death of the deceased was occasioned by wounds, he sustained on the night eventful. Though these PWs were subjected to cross examination, yet, there is Crl. Appeal No.156(J)2007 9 nothing on record to show that what these PWs have stated before the Court implicating the accused with the crime under consideration should not be believed for one reason or another.
27. It is also worth noting here that despite some of the PWs, particularly, PW1, PW 2 and PW 3 being the nearest relatives of the accused, they too chose to speak out against the accused person. This only shows that what PWs aforesaid have stated before the Court is nothing but truth only. The claim of those witnesses that deceased met his death at his own house finds further support from PW 6, PW 7 and PW 8, as, they too saw a gathering in the house of the accused person on the morning of 06.05.05 and also saw the dead body of the deceased in his own house.
28. In this context, it may be stated that there is undeniable evidence on record to show that soon after the alleged incident, the accused left his house and took shelter in the house of his sister. The evidence of PW 3 and PW 10 makes such a position abundantly clear. Even PW 4 when he came into the house of the accused person on the night of the incident itself, he did not find the later in his house.
29. We have, therefore, no hesitation in holding that the accused left his house soon after the alleged incident and took shelter in the house of his sister. In the facts and circumstances of the present case, the accused leaving his house moment after the alleged incident and his taking shelter in the house of his sister till the time of arrest by the Police next day in the morning again serve to show that accused was the person who killed the deceased on the night aforesaid.
30. The I/O in his evidence has stated that he seized a dao from the house of the sister of the accused on being produced by the accused Crl. Appeal No.156(J)2007 10 on 06.05.05. The evidence, so rendered by I/O draws support from PW 2 as well as the averments made in Ext.5, seizure list. The above evidence which remains mostly undisturbed clearly shows that a dao was seized from the house of sister of the accused person soon after the alleged incident on being produced by the accused.
30.(A) The recovery of dao from the accused person and that too when he was taking shelter in the house of his sister, coupled with the fact that 1) he was seen leaving his house soon after the alleged incident with a dao with his hand and 2) the detection of many wounds including two incised wounds which, as opined by Doctor, which occasioned the death of the deceased incriminates the accused more and more with the crime in question.
31. We have already found that deceased met his death on the night of 05.05.05 and his death was homicidal in nature. His evidence again demonstrates that two cut wounds, one on the outer part of the right arm and other on the occipital region occasioned the death of deceased on the night of 05.05.05.
31A. Our foregoing discussion has , now, revealed that prosecution has established the following circumstances very firmly:
(i) Soon before the alleged incident, there was a quarrel between the brothers, who were accused and deceased;
(ii) The quarrel left one of the brothers severely injured which occasioned his death same night in their own house;
(iii) Two cut wounds, one on the upper right arm and other on the occipital region occasioned the death of deceased;
Crl. Appeal No.156(J)2007 11
(iv) Moments after the alleged incident, accused was seen yielding a dao in his hand;
(v) He left the place of occurrence soon thereafter;
(vi) He was apprehended from the house of his sister next day in the morning and
(vii) Police also seized a dao (Material Ext.1) on being produced by the accused person.
32. Those circumstances when read together with the well established facts on the night in question, the deceased met his homicidal death having been subjected to cut wounds, makes it more than clear that circumstances which prosecution has proved against the accused person clearly form a chain of events, unbreakable anywhere ,which leads to the sole and lone conclusion the accused, and none else, had committed the death of deceased on the night aforesaid.
33. One more factor has again strengthened our view that accused killed his brother, the deceased on the night aforesaid. There is undisputable evidence in the form of testimony of PW 1, the father of the accused and the deceased, to show that accused admitted that he cut and injured the deceased and made such statement soon after the incident under scrutiny. Evidence, so tendered by P W 1, remains totally unchallenged.
34. There is absolutely nothing on record to show that the accused made such confession under compulsion. Such extra judicial confession is found to be truthful as well as it finds support on material points from the evidence, rendered by PWs, particularly PW 1 since he is also found saying that his son was seen with a dao in his house moments after the alleged incident. The Doctor, who claims to have seen several Crl. Appeal No.156(J)2007 12 wounds including two cut wounds on the body of the deceased also lends more and more credibility to the extra judicial confession.
35. Situation being as above, we are of the opinion that extra judicial confession which accused made to his father was truthful and it was made voluntarily as well. In the face of the above disclosures, we have found that extra judicial confession gives one more firm footing to the prosecution case. Accordingly, we have no hesitation in coming to the conclusion that on the night in question, the accused, and none else, caused the death of the deceased.
36. Now, the question is whether for such death, the accused can be held guilty of offence of murder. We have already found that the accused had inflicted several wounds on the body of the deceased but two cut wounds, one on his left arm and other on the occipital region were responsible for death of the deceased on the night of 05.05.05.
37. Though materials on record reveal that there was a quarrel between the brothers soon before the alleged incident yet there is nothing on record to show that the accused attacked the deceased without premeditation in a sudden fight in a heat of passion upon sudden quarrel and without offenders taking undue advantage.
38. Again there is no evidence whatsoever on record to show that the death of the deceased was caused when the accused exercised his right of private defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.
39. Quite contrary to it, the accused/appellant only plea was that he was innocent and this case has been foisted upon him falsely. As stated above, such a plea is found to have fallen flat on its face and Crl. Appeal No.156(J)2007 13 therefore, we are constrained to hold that the accused intentionally killed his brother on the night of 5th May ,2005 and as such , charge, brought against him, has been found to have proved beyond all reasonable doubts and the judgment of the Trial Court, therefore, invites no interference from this Court of appeal.
40. In the result, the appeal is dismissed.
41. Return the LCR.
42. We appreciate the assistance rendered by Ms R.D. Mazumdar, learned Amicus Curiae and direct that an amount of Rs.5000/- be paid to Ms R.D. Mazumdar, as her remuneration by the State Legal Services Authority.
43. In view of the provision prescribed by Section 357(A) Cr.P.C. the victim or his/her dependents are entitled to get compensation for rehabilitation in appropriate cases. Therefore, for the sake of brevity and in the light of our discussions, made in Criminal Appeal No.93(J)/2005 (disposed on 22.12.2011), with regard to the victim compensation as provided by Section 357(A) Cr.P.C., we make the following directions:-
1. As an interim measure an amount of Rs.50,000/- shall be deposited by the State Government with the District Legal Services Authority of Dibrugarh District within a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependent(s), who suffered loss and injury as a result of death of the deceased and if such dependant(s) or legal representative(s) need any rehabilitation.
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2. Upon such enquiry, if it is found that the dependent(s), if any, need rehabilitation, then the District Legal Service Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government.
3. It is made clear that if the District Legal Services Authority, after due enquiry, arrives at the findings that there is no dependent(s) or that the dependant(s) of the deceased/victim does not required any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs.50,000/- without delay, in favour of the State Government.
4. A copy of this judgment be furnished to the 1) Chief Secretary to the Govt. of Assam, 2) Secretary, State Legal Services Authority, Assam and Secretary, District Legal Services Authority, Dibrugarh for doing needful as indicated above JUDGE CHIEF JUSTICE samir Crl. Appeal No.156(J)2007