Gauhati High Court
Shri Jorkhu Sahu vs The Sate Of Assam on 2 April, 2012
Author: A.K. Goel
Bench: A.K. Goel
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND,
MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND
ARUNACHAL PRADESH)
Crl.Appeal No.21 (J) of 2006
Shri Jorkhu Sahu,
Son of Manu Sahu,
Mouza and P.S. Mariani,
District - Jorhat, Assam.
............ Appellant.
-Versus -
The Sate of Assam.
............Respondent.
BEFORE HON'BLE THE CHIEF JUSTICE MR. A.K. GOEL HON'BLE MR. JUSTICE C R SARMA For the Appellant : Ms.. Meda Lila Gope.
Amicus Curiae.
For the Respondent : Mr. Z. Kamar,
Public Prosecutor,
Assam.
Date of hearing : 16.02.2012
Date of Judgment :02/04/2012.
JUDGEMENT AND ORDER (CAV)
(By C.R. Sarma, J)
[1] This appeal is directed against the judgment and
order, dated 30.11.2005, passed by the learned Additional Sessions Judge, Jorhat in Sessions Case No. 1 (J-J)/2005.
Crl. Appeal No. 21(J) of 2006 Page 1 of 1 2By the impugned judgment and order, the learned Additional Sessions Judge convicted Shri Jorku Sahu (hereinafter called the "appellant") under Section 302 of the Indian Penal Code (for short, the "IPC") and sentenced him to suffer rigorous imprisonment for life and pay fine of Rs. 2,000/-, in default, suffer rigorous imprisonment for another period of 6 (six) months for his conviction under Section 302 IPC.
[2] Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come with this appeal.
[3] We have heard Ms. M.L. Gope, learned Amicus Curiae, appearing for the appellant and Mr. Z. Kamar, learned Public Prosecutor, appearing for the State-respondent.
[4] The prosecution case, in brief, is that on 26.09.2003, at about 9.00 a.m., the appellant, being armed with a dao had appeared in front of the house of Shri Bondhu Goala (herein after called the "deceased") and called out his wife, namely Smti Ilachi Goala, addressing her as "Kaki". At that time, the deceased and his wife, i.e. PW-1 were inside their house alongwith their children. On being so called by the appellant, as soon as, the deceased came out, opening the door of the house, the appellant inflicted a dao blow on his head. On being so assaulted, the deceased had fallen down on the threshold of his house and the appellant fled the place of occurrence with dao in his hand. Finding her husband in injured condition, PW 2 carried him to Deberapar Govt.
Criminal Appeal 21(J)/ 2006 Page 2 of 2 3Hospital, wherefrom the deceased was referred to the Jorhat Civil Hospital. Before taking the deceased to Jorhat Civil Hospital, PW 2 had carried him to the Deberapar Police Out- Post and accordingly informed the police about the incident. However, the deceased succumbed to his injuries on the next morning.
[5] On receipt of the said information, from PW 2, police made an entry, being Deberapar Police GD Entry No. 456, dated 26.09.2003 and also received written Ejahar from PW 2 on 27.09.2003, launched investigation into the matter. During investigation, police visited the place of occurrence, prepared sketch map, got the inquest conducted through an Executive Magistrate, recorded the statement of witnesses, arrested the appellant, on being produced and seized a "Machi" dao (Ext. Ka), vide seizure list (Ext No. 3).
[6] At the close of the investigation, police submitted charge sheet under Sections 447/302 IPC against the accused and forwarded him to the Court for trial. The offence, being exclusively triable by the court of sessions, the learned Chief Judicial Magistrate, Jorhat committed the case to the court of Sessions; the learned Sessions Judge framed charge, under Section 302 IPC against the appellant. The charge was read over and explained to the accused person, to which he pleaded not guilty and claimed to be tried.
In order to prove their case, prosecution examined as many as 11 (eleven) witnesses including the medical officer Criminal Appeal 21(J)/ 2006 Page 3 of 3 4 (PW 11), who performed the post-mortem examination and the investigating officers (PWs 9 and 10), who conducted the investigation.
At the close of the evidence for the prosecution, the accused person was examined under Section 313 of the Code of Criminal Procedure (for short, the "Cr.P.C."). He denied the allegations, brought against him. No defence evidence has been adduced in this case.
[7] Considering the evidence on record, more particularly, the evidence of PWs 1 and 6 i.e. the wife and the son, respectively of the deceased, the learned Sessions Judge held the accused guilty for the offence under Section 302 IPC and convicted and sentenced him, as indicated hereinabove.
[8] Ms. M.L. Gope, learned Amicus Curiae, appearing for the appellant, taking us through the evidence on record, has submitted that there is no substantive and reliable evidence to show that the alleged eyewitness i.e. PWs 1 and 6 had seen the appellant, inflicting dao blow on the deceased, in as much as it was a dark night. It is also submitted that both PWs 1 and 6, being close relative of the deceased, were interested witnesses and their evidence cannot be relied upon without corroboration from the independent witnesses. The learned Amicus Curiae has also contended that the single blow, given by the appellant, as alleged by PW 1, indicates that the appellant had no intention to cause the death of the Criminal Appeal 21(J)/ 2006 Page 4 of 4 5 deceased and as such the conviction recorded under Section 302 IPC cannot be maintained.
Ms. Gope, learned Amicus Curiae, has also submitted that considering the entire aspect of the matter, and want of corroboration, the appellant is entitled to the benefit of doubt and as such this is a fit case, in which the appellant should be acquitted.
[9] Refuting the said arguments, advanced by Ms. M.L. Gope, learned Amicus Curiae, Mr. Z. Kamar, learned Public Prosecutor, appearing for the State respondent, referring to the evidence of eyewitness, has strenuously argued that the fact that the said two eyewitnesses were close relatives of the deceased cannot be sufficient ground to disbelieve their un-controverted evidence. The learned P.P., drawing our attention to the evidence of PW 1, has submitted that PW 1 categorically stated that she saw the accused person with her husband at the time of inflicting the fatal blow by the appellant and that there was electric light in their house at the relevant time. The learned P.P. has also contended that the evidence of PW 1 that there was electric light, in their house, remained un-demolished and as such, though it was a dark night, her evidence that she could identify the appellant, in the said electric light, is believable. The learned P.P., also referring to the evidence of PW- 6, who was son of the deceased, submitted that the said witness clearly stated that he could see the deceased running away from the place of occurrence after assaulting his father and that he clearly stated Criminal Appeal 21(J)/ 2006 Page 5 of 5 6 that electric light was available in their house as well as in the houses of other neighbours. The learned P.P. has also contended that the fact that the deceased was found lying in injured condition, leads support in favour of the said evidence, rendered by PW 1 and PW 6 aforesaid.
The learned P.P. has further submitted that the evidence, rendered by the said two eyewitness, regarding involvement of the appellant, remained un-demolished and that the learned trial Judge committed no error by recording the conviction and sentence, as indicated above.
[10] Having heard the learned counsel, appearing for both the parties and carefully perusing the evidence on record, we find no difficulty in understanding that the incident had taken place, on the night of 26.09.2003, in the premises of the deceased. The evidence of PWs 1 and 6 that the deceased had sustained injury near the door of their house, on the fateful date, has been corroborated by PW 2, i.e. the brother of the deceased, who stated that coming to know about the incident, he rushed to the place of occurrence and found the deceased in injured condition. He also stated that he was informed by PW 1, i.e. the wife of the deceased that the accused had inflicted the cult injury, on the deceased. According to PW 2, he made arrangement for sending the deceased to the hospital, where the deceased succumbed to the injuries. He was a witness to the inquest report (Ext. 1), prepared by the police. Though this witness was cross- examined, on behalf of the defence, no material contradiction Criminal Appeal 21(J)/ 2006 Page 6 of 6 7 could be elicited to demolish his evidence that he had seen the incident on the date of occurrence and that the deceased died on the next day in the hospital.
[11] Shri Pagu Goala (PW- 3), who was also a witness to the inquest report (Ext. 1) aforesaid, corroborated the evidence of PW 2 by saying that the deceased died in the hospital on the next day.
[12] Shri Chutu Goala, who was one of the brothers of the deceased, deposing as PW 4 stated that he was informed about the incident by PW 2. He also stated that, on the next day, the deceased died in the hospital.
[13] Shri Satur Sahu, who deposed PW 5, stated that he came to know about the incident, on the next day after the arrival of the police.
[14] Shri Munna Archoja, who deposed as PW 7, did not see the incident. He was a witness to the seizure of the dao vide seizure list (Ext. 3). He stated that the police had seized a dao, on being produced by the accused. In his cross- examination, this witness stated that he did not see whether the deceased had brought a dao or not.
[15] Shri Prodeep Bhumiz (PW-8) was the scribe of the FIR (Ext. 4), which he had written, on being dictated by PW 1, I e. the wife of the deceased.
Criminal Appeal 21(J)/ 2006 Page 7 of 7 8[16] Shri Biren Boragohain (PW -9), Officer-in-Charge of the Debarpara Police Out-Post, stated he completed the investigation and submitted the charge sheet.
[17] Shri Nidarul Islam (PW-10) was another Investigating Officer, who completed the initial investigation. He stated that the injured was brought to the Out-Post on 26.09.2003 and accordingly, he had made a GD Entry No. 456, dated 26.09.2003. According to the I.O. he received the written FIR on 27.09.2003. He further stated that the wife of the deceased, i.e. PW 1 informed him that the accused had inflicted the injury on her husband.
[18] Dr. Ajit Kr. Sarmah, Medical Officer, who performed the autopsy deposed as PW 11. He found the following injurues in respect of the deceased:
" An oblique sharp cut wound extending from the lateral part of the upper eyelid to the parietal region of the head 15 cm above the tragus of the ear on the left side. The wound is 10 cm and 2 cm wide in the middle. The would is found unstitched and large blood clot seen in the margin. A big haematoma around the wound is seen. The depth of the would reaches up-to the skull bone in the middle half of the wound.
Cranium and spinal canal:
1. Scalp, skull, vertebrae:
A sharp deep cut wound with huge clot and haemotoma wound as described in column. It is Criminal Appeal 21(J)/ 2006 Page 8 of 8 9 found in the front parietal region of the scalp on the left side.
There is linear fracture of 5 cm length is found on the frontal and parietal bone beneath the above wound in the middle on the left side.
2. Membrane.
The dura-metter is found torn along the line of fracture in the frontal and parietal bone on the left side.
3. Brain and spinal cord:
A subdural haemotoma with collection of clot is seen in the fronto parietal region of the brain on the left side with depression of the head front to parietal lobes underneath"
The said Medical Officer opined that the injuries were ante mortem and that the death was caused due to comma as a result of brain compression. He further opined that the head injury was sufficient to cause the death, in the ordinary course.
[19] From the above medical evidence, it is clearly found that the deceased died due to head injury, sustained on the night of 26.09.2003 in his house. So the question is who caused the fatal injuries. The prosecution version is that the appellant had inflicted the said injuries.
[20] Except PW-1, wife of the deceased and PW 6, one of the sons of the deceased, all other witnesses i.e. PWs 2, 3 Criminal Appeal 21(J)/ 2006 Page 9 of 9 10 and 4 appeared in the place of occurrence after the incident. PW 7 was a witness to the seizure of dao by the police and PW 5 came to know about the incident only after arrival to the Police Station. Therefore, the prosecution case regarding involvement of the appellant is based on the testimony of PWs 1 and 6.
Now, we are required to scrutinize, if the evidence given by PW 1 and PW 6 is believable.
[21] PW 1 clearly stated that just before the incident, she and her husband were inside the house along with there children and as soon as, her husband opened the door, on being called by the appellant, the appellant had inflicted dao blow on the head of her husband. Though this witness was subjected to cross-examination, her evidence that she had seen the appellant inflicting fatal blows, on the deceased, in the electric right remained un-demolished.
The evidence of PW 1 that, their son, i.e. PW -6 also was inside the house, has been corroborated by PW 6, who clearly stated that, hearing scream of his mother; he rushed to the door of the house and found his father was lying in injured condition. His evidence that he saw the accused running away from the place of occurrence, sufficiently corroborating the evidence of PW 1, the accused had inflicted the injury on his father. He supported the evidence of PW 1 regarding existence of electric light in their house.Criminal Appeal 21(J)/ 2006 Page 10 of 10 11
[22] Carefully scrutinizing the evidence of PW 1 and PW 6, we find no material contradiction, in their evidence, regarding involvement of the appellant. Admittedly, the occurrence took place at about 9.00 p.m. From the evidence of PW 2, it is found that when he was informed by his nephew about the incident, he had retired to his bed. PW 5 also stated that he was sleeping at the time of incident.
From the said evidence, it can be understood that almost all the villagers had gone to their beds at the relevant time. Therefore, it was hardly possible to accept any other persons except the family members of the deceased, at such hour, to witness the occurrence. Therefore, as the PWs 1 and 6 were inside the house, with the deceased, at the relevant time, we find them to be the most natural witnesses. The fact that they were relative of the deceased cannot be sufficient ground to discard their evidence unless contradiction, on material point, is proved from their cross examination. The forceful evidence, given by PW 1 and PW 6, which remained un- demolished, clearly indicates that the appellant had caused the fatal injuries.
[23] As revealed from the evidence of the prosecution witnesses, more particularly, the evidence of PW1 and the Medical Officer (PW 11), it is found that the cut injury was inflicted on the head of the deceased, resulting brain Criminal Appeal 21(J)/ 2006 Page 11 of 11 12 compression. The nature of fatal injury was inflicted on head, which is the most vital part of the body. The nature of the injury, its gravity, the part of the body, on which it has been inflicted and the weapon used lend to the conclusion that the assailant had inflicted the injury with intention to cause death or with the intention that the injury inflicted was likely to cause death. That a part, the fact that the appellant had proceeded to the house of the deceased, at that hour of the night with a dao in his hand fortifies the said conclusion.
[24] There is nothing on record to show that the appellant was provoked by the deceased, in any manner to inflict such fatal blow or that the same was committed under any compelling circumstances. The act committed by the appellant does not fall under any of the exceptions prescribed by Section 300 IPC.
[25] In view of the above facts and circumstances and the evidence rendered by the eyewitnesses aforesaid, there is no difficulty in understanding that that the appellant committed the murder of the deceased. Therefore, in our considered opinion, the learned Sessions Judge committed no error by convicting and sentencing the appellant as indicated above. Hence, we find no merit in this appeal requiring interference with the impugned conviction and sentence. Accordingly, the appeal is dismissed. The conviction and sentence are upheld.
[26] Return the LCR. Criminal Appeal 21(J)/ 2006 Page 12 of 12 13 [27] For the sake of brevity, without repeating the
discussions made in the Criminal Appeal No.93(J) /2005 (disposed of 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 relief, and without prejudice to the right of the dependants of the victim to claim higher amount, an amount of Rs.50,000/- be deposited by the State Government with the District Legal Services Authority of Jorhat 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 dependant(s), who suffered loss and injury as a result of death of the deceased and also if such dependent(s) or legal representative(s) need any rehabilitation."
(2) Upon such enquiry, if it is found that the dependent(s), if any, need rehabilitation, then the District Legal Services 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. It is made clear that if the District Legal Services Authority, after due enquiry, arrive at the findings that there is no dependent(s) or that the dependent(s) of the deceased/victim does not require any rehabilitation, then the District Legal Services Authority, shall refund Criminal Appeal 21(J)/ 2006 Page 13 of 13 14 the said amount of Rs.50,000/-, without delay, in favour of the State Government.
[28] Let a copy of this judgment and order be furnished to the Chief Secretary to the Government of Assam, for doing the needful.
[29] We acknowledge with appreciation the assistance rendered by Ms. M.L. Gope, learned counsel, as Amicus Curiae and direct that an amount of Rs. 5000/- (Rupees five thousand) only be paid to the learned Amicus Curiae as his remuneration, by the Assam State Legal Services Authority.
JUDGE CHIEF JUSTICE
Eam...
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