Gauhati High Court
Sri Sankar Majhi vs The State Of Assam on 6 May, 2015
Author: P.K.Saikia
Bench: P. K. Saikia, Rumi Kumari Phukan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
PRADESH)
Crl. Appeal (J) No. 104 of 2012
Sri Shankar Majhi,
Son of Durga Majhi,
R.O.- Tekela line, (Boisahabi Tea Estate),
P.S.- Teok,
Dist.- Jorhat, Assam.
.....Appellant
Versus
The State of Assam
..... Respondent
BEFORE
HON'BLE MR. JUSTICE P. K. SAIKIA
AND
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
For the Appellant : Mr. S. Banik, Amicus Curiae
For the Respondent : Ms. S. Jahan, Addl. P.P.,
Date of hearing : 06.05.2015
Date of judgment : 06.05.2015
Crl. A. (J). No. 104 of 2012
2
JUDGMENT AND ORDER (ORAL)
(P.K.Saikia, J) This appeal is directed against the judgment and order dated 20.07.2012 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 34(JJ)/2011 convicting the accused, namely, Sri Sankar Majhi (herein after referred to as the 'accused person') of offence u/s 302 IPC and sentencing him to suffer imprisonment for life and also to pay a fine of Rs. 2000/- i.d. S.I. for another 2 (two) months for the offence aforesaid.
2. Being aggrieved by and dissatisfied with the aforesaid judgment, the accused/appellant has preferred this appeal from jail citing several infirmities in the judgment under challenge.
3. We have heard Mr. S. Banik, learned Amicus Curiae for the appellant and also heard Ms. S. Jahan, learned Addl. P.P., for the State.
4. The case, projected by the prosecution in the FIR dated 04.10.2010 and in subsequent trial, in short, is that on 04.10.2010, Sri Dambaru Bhuyan longed an FIR with I/C, Chelenghat police out post alleging that on the same day at about 6 am, the appellant herein had killed his wife namely, Tara Majhi, subjecting her to physical torture. On the receipt of such FIR, I/C, Chelenghat police out post made a GD Entry and forwarded the FIR to the O/C, Teok Police Station to register a case and for doing further needful.
5. O/C, Teok PS on the receipt of such FIR, registered a case vide Teok PS Case No. 222/2010, u/s 302 IPC and ordered one Sri Ananta Buragohain (PW 9), S/I of police, to investigate the case. On being so entrusted, Sri Buragohain, I/O of the case, visited the Place of occurrence (in short PO), conducted inquest on the dead body, sent the same to hospital for post mortem examination, examined the witnesses, did other things needful and on conclusion of investigation, he submitted charge sheet u/s 302 IPC against the accused person and forwarded him to the court to stand his trial for the offence aforesaid.
6. The Jurisdictional Magistrate before whom charge sheet was so laid committed the case to the Court of Session at Jorhat since the offence u/s Crl. A. (J). No. 104 of 2012 3 302 IPC is exclusively triable by the Court of Session. The Learned Sessions Judge, Jorhat on commitment of the case on transfer and on hearing the learned counsel for the parties, was pleased to frame charge u/s 302 IPC against the accused person and charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried.
7. During trial, the prosecution has examined as many as 9 (nine) witnesses including the informant, the M.O. who conducted autopsy on the dead body and the I/O. The statement of the accused person u/s 313 CrPC was also recoded. Accused plea was of total denial, however, he refused to adduce any evidence in his defence.
8. On conclusion of trial and on hearing the learned counsel for the parties, learned Trial Court was pleased to convict the accused of offence u/s 302 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in the present appeal.
9. Mr. S. Banik, learned Amicus Curiae, submits that judgment under challenge is unsustainable in law for reasons more than one. In that connection, it has been stated that there is no legal evidence on record to conclude that the accused was the person responsible for killing his wife on the morning of 04.10.2010. In support of such contention, our attention has been drawn to the evidence of Sri Dambaru Bhuyan, (PW 1), who is found saying that he came to know about the alleged incident from the brother of the accused person who reported him that the evil spirit killed the deceased.
10. It has also been stated that learned Trial Court has placed enormous reliance on the extra judicial confession which the accused reportedly made to PW 1, Sri Dambaru Bhuyan, PW 3, Sri Ranjit Kanda and PW 5, Sri Mangal Chawra. According to learned Amicus Curiae, none of the extra judicial confessions, so relied upon by the learned Trial Court can be accepted as truthful, far less they being made voluntarily. In that connection, it has been stated that such confessions suffer from infirmities of extremely serious in nature.
Crl. A. (J). No. 104 of 2012 411. Learned trial Court has also placed reliance on some circumstances which is evident from the record. However, those circumstances also do not form a chain of events unbreakable anywhere leading to sole and lone conclusion that the accused, and none else, was the person responsible for killing his wife on the date aforementioned. Being so, the circumstantial evidence could lend no help to the prosecution case.
12. Referring to the evidence of Doctor, it has been stated that the deceased died due to syncope. According to learned Amicus Curiae, in medical jurisprudence, syncope is stated to be a stage caused by insufficient supply of blood to the brain. However, there is nothing on record to show that the deceased sustained any injury which might have produced syncope and which ultimately occasioned her death. This is another reason, why the judgment in question needs to be set aside.
13. According to learned Amicus Curiae, the evidence on record under no circumstances requires any Court to conclude that the prosecution has proved the charge u/s 302 IPC beyond all reasonable doubt and as such, judgment rendered by the learned Trial Court in the case aforementioned becomes unsustainable in law and therefore, he urges this court to acquit the accused person on setting aside the judgment under challenge.
14. On the other hand, Ms. S. Jahan, learned Addl. PP, submits that prosecution has relied on the extra judicial confession which accused reportedly made to PW 1, PW 3 and PW 5. The prosecution also relies on some other circumstances of enormously incriminating nature which if read together lead one to sole and lone conclusion that it was the accused, and none else, who killed his wife on the morning in question.
15. It has also been stated that there are some infirmities in the extra judicial confession which the accused reportedly made to PW 1 and PW 3 but the extra judicial confession so made by the accused to the PW 5 is found free from any infirmity whatsoever and such confession can be relied on.
16. It has also been stated that all the incriminating circumstances were brought to the notice of the accused person while he was being examined Crl. A. (J). No. 104 of 2012 5 u/s 313 CrPC. However, instead of offering plausible explanation to those incriminating circumstances which stared direct at him, the accused took the plea that he is innocent. His non ability or non explanation to all those incriminating circumstances, according to learned Addl. PP, provides the prosecution the missing link, if any, in the prosecution case which in turn put the prosecution case on a firm footing. Learned Addl. PP, therefore, urges this court to dismiss the appeal on affirming the judgment under challenge.
17. We have heard the rival submissions, advanced by the learned counsel for the parties having regard to the judgment under challenge and the evidence on record. A perusal of the evidence on record in the light of the judgment under challenge reveals that the learned Trial Court has rightly reproduced the evidence on record. For ready reference we have also found it necessary to re-reproduce the evidence of witnesses as reproduced in the judgment under challenge. The relevant part is reproduced below: ----
"First of all let us discuss the testimony of PW 1 Domboru Bhuyan who is the informant cum brother of the deceased during his testimony he narrated that on the date of occurrence he was informed by the brother of the accused that Sankar Majhi and his wife Tara Majhi went to enjoy Karm Sanmimlon and Tara Majhi expired. While he inquired how Tara Majhi died then the person who came to inform him about the occurrence revealed him that it was the devil who killed her. He disclosed that he immediately rushed to the place of occurrence and villagers and his wife also appeared at the place of occurrence and he noticed that there was injury on the hand and leg of the deceased ad her bangles which was wearing by her were in broken condition. It is also revealed by him that while he noticed to the body of the deceased by removing the cloths he found sign of injury caused by lathi at the back of the deceased. He lodged the ejahar (Exbt.1) and he disclosed that scribe of the ejahar was Robert Christian. It is testified by him that while police came father of the accused showed one piece of fire wood to police and police seized the same vide Exbt. 2. He exhibited the fire wood as material Ext. 1. He also narrated that while he inquired about the occurrence to the accused, the accused stated. "please forgive me, I have killed your sister. You punish me accordingly to your wish."
During cross examination he disclosed that Sanjib and Siva who are the brother of the accused informed him about the occurrence. He denied the suggestion that accused's father did not show the piece of fire wood to police and that the accused did not confess before him. It Crl. A. (J). No. 104 of 2012 6 is denied by him that he did not state before police about confession made before him by the accused.
PW 2 Asma Chawra being the mother of the deceased divulged during her testimony that on the date of occurrence accused Sankar's brother informed them that Tara Majhi was suffering from some ailment and then while his son become angry and inquired what happened to Tara actually then the brother of Sankar disclosed before him that Tara Majhi expired. According to her evidence hearing the news they immediately visited the house of the accused but did not find the accused but noticed the dead body of Tara Majhi and found that her wearing bangles were in broken condition. She divulged that there was injury on the body of deceased at her chest and back. It is disclosed that while they inquired the accused how Tara Majhi expired the accused though at the initial stage denied his involvement but later on while police came then disclosed that he assaulted her by means of a lathi. It is disclosed by this witness that accused beat the deceased by means of fire wood and the said lathi was seized by police. It is further disclosed by her that in the house of the accused, the accused and deceased resided. It is denied by her during cross examination that her daughter was not murdered by the accused.
PW 3 Ranjit Kanda narrated during his testimony that one day while he came towards his shop he noticing people gathered at the house of the accused entered into the house of the accused and found that wife of the accused expired. According to him while police appeared and inquired the accused how his wife died then the accused confessed that he had committed murder of his wife. It is also disclosed that accused showed one bamboo stick and confessed that he committed murder of his wife by that bamboo stick. It is disclosed by him that police prepared inquest report after observing the dead body and he exhibited the Exbt. 3 as the inquest report. It is admitted by him that he did not state before police about the confession of accused regarding murder of deceased by means of bamboo stick. He also disclosed that there are two parts in the house of accused and that one part was occupied by the accused and the other part was used by the parents of the accused. He witnessed that the wife of the accused died in the part where accused resided.
PW 4 Mithun Chawra testified that about one year ago Siva brother of the accused informed him in the morning that the condition of his sister in law was serious and hearing news he immediately went to the house of the accused and found the wife of the accused in dead condition inside the house. He disclosed that he met the accused and on inquiry the accused disclosed that the deceased was suffering from some ailment but could not say from what ailment she was suffering.
Crl. A. (J). No. 104 of 2012 7He also disclosed that police while observed the dead body he was also present and he noticed that there was injury on the back, hand and whole body of the deceased. He also observed that bangles of the deceased was found in broken condition.
PW 5 Mangal Chawra testified that about one year ago on the date of incident while he was in his house in the morning hours two persons from Boisahabi Tea Estate came and informed him that Tara Majhi who is his elder sister died. He disclosed that he immediately rushed to the house of his sister and found her dead. He also noticed mark of injuries on her body. It is also disclosed by him that mark of injury which appeared on the body of the deceased seemed to be caused due to assault. This witness disclosed that police seized one split up fire wood (khori) vide Exbt. 2 in his presence. It is also disclosed by him that while he visited the house of his sister he met the accused at the place of occurrence and the accused confessed before him that he assaulted Tara. During cross examination this witness denied he suggestion put forwarded by the defence that the accused did not confess before him. It is denied by him that the accused went to Karam puja on the date of occurrence.
PW 6 Achim Chawra narrated during his evidence that on the date of occurrence Shankar's brother Siva informed him that Tara Majhi was under serious condition and accordingly he immediately rushed to the house of accused Shankar and found Tara Majhi in dead condition. It is testified that he noticed injury on the hand, mouth, back of deceased Tara and police while came to the place of occurrence seized one lathi in his presence vide Exbt. 2. He identified his signature as Exbt. 2(3) in the seizure list. He also identified the material Exbt/1 as the seized lathi.
PW 8 Diapk Nayak is a reported witness and disclosed that on the next morning of day of occurrence he while returned back from Karam puja he seeking a huge gathering at the house of accused immediately went there and found dead body of Tara Majhi in the hose of accused.
PW 9 I.O., Ananta Borgohain investigated the case on the strength of an ejahar lodged by one Dambaru Bhuyan on 04.10.2010 at Chelenghat police outpost. He visited the place of occurrence which is the house of Shankar Majhi situated at Tekela line and found dead body of deceased Tara Majhi lying on the ground. He performed inquest in presence of witness and exhibited the same as Exbt. 3. He also disclosed that as per shown by accused one piece of fire wood by which accused committed murder of his wife was seized vide Exbt. 2. He exhibited material Exbt. 1 as the seized fire wood. He also disclosed Crl. A. (J). No. 104 of 2012 8 that he arrested the accused from his house. He recorded the statement of the witnesses, prepared sketch map of the place of occurrence (exbt. 5). He during cross examination testified that he observed several marks of injuries on the body of Tara Majhi but he did not seize any wearing apparel of the deceased. It is denied by him that the seized fire wood was not connected with the case. It is admitted by him that witness Dambaru Bhuyan during 161 CrPC statements did not disclose that accused showed the piece of fire wood to him and that in his presence the accused confessed his guilt."
18. Before proceeding further, we also find it necessary to have a look at the evidence of Doctor who conducted autopsy on the body of the deceased. He is Dr. Dipak Baruah and was examined as PW 7. According to him on 05.10.2010, he was working as Casualty Officer at Jorhat Medical College and Hospital. On that day he examined the body of one Smti. Tara Majhi and found the following:--
"WOUND POSITION, SIZE AND CHARACTER:
Lacerated wound over back side of chest and left hand. Other organs are healthy and congested. MORE DETAILED DESCRIPTION OF INJURY OR DISEASE Lacerated wound over back side of chest and left hand. Fracture on left redius and ulna.
All the findings are ante mortem in nature. The Medical officer opined that the cause of death is due to syncope as a result of injuries sustained by the deceased. Exbt. 4 is the post mortem report and Exbt. 4(1) is his signature.
During cross examination PW 7 disclosed that both kind of weapons may be used in this particular case."
19. We have found that the prosecution has placed huge reliance on the extra judicial confession so made by the accused to PW 1, PW 3 and PW 5. On perusal of the evidence of those witnesses, it is found that the extra judicial confession, made before PW 1 and PW 3, suffer from some infirmities, of course, not of very serious nature.
20. However, we have also found that the extra judicial confession, so made by the accused to PW 5 is found free from any infirmity whatsoever and same is, therefore, reliable. This is because of the fact that despite being cross examined at length, the evidence of PW 5 remains nearly unshaken.
Crl. A. (J). No. 104 of 2012 9Being so, in our opinion, the extra judicial confession which the accused made to PW 5 is found to be totally truthful.
21. It may be stated that the accused reportedly made extra judicial confession to PW 1 and PW 3 as well though such confession is found to be riddled with some infirmities. But then, their evidence on such point cannot be wholly discarded inasmuch as infirmities in their testimonies so far the accused making confessions is concerned are found to be not very serious in nature which again stood corroborated by the testimony rendered by PW 5.
22. On reading the evidence of PWs in their totality it would appear clear that extra judicial confession, so made by the accused to PWs aforesaid, more particularly, PW 5 is truthful and voluntary and same can be accepted. The fact that Doctor too opined that the death was homicidal in nature and it was occasioned by the injuries, found inflicted on her body, makes such a conclusion inevitable.
23. On the perusal of the evidence on record, we have found that the deceased died in her own house. There is also evidence on record to show that at the relevant time, the accused and the deceased were found residing in the ill fate house. Since the deceased died a homicidal death in her house when the accused and the deceased resided there together, it is for the accused to explain how the deceased met her death on 04.10.2010.
24. We have found that all the incriminating circumstances were brought to the notice to the accused person which stared direct at him while he was being examined u/s 313 CrPC. As pointed out by the learned Addl. PP, the accused did not offer any explanation to those incriminating circumstances. Instead he took the plea of innocence simpliciter.
25. When the extra judicial confession which the accused reportedly made to PW 1, PW 3 and PW 5 are considered together with the circumstances, which the prosecution has firmly established in the light of inability of the accused to offer any explanation to those incriminating circumstances while being examined u/s 313 CrPC, it would appear clear that it is the accused and none else, who killed his wife in his own house on the morning of 04.10.2010.
Crl. A. (J). No. 104 of 2012 1026. Now the question needs to be answered whether in view of materials available on record, the accused can be convicted of offence u/s 302 IPC.
27. It appears from the record that the deceased sustained wounds on her back and chest. We have also found that the deceased died due to syncope. The extra judicial confession again reveals that the injuries were caused perhaps with sharp object which is evident from the cross examination of PW 7. Such revelations, in our opinion, make out an offence u/s 326 IPC and not u/s 302 IPC.
28. Accordingly, the conviction of accused is altered from a conviction u/s 302 IPC to a conviction u/s 326 IPC.
29. Having regard to the facts and circumstances attending the case, the accused is sentenced to suffer imprisonment for a period of 7 (seven) years with a fine of Rs. 1,000/- (Rupees One Thousand) i.d. R.I. for another 2 (two) months for the offence u/s 326 IPC.
30. In the result, the appeal is partly allowed as indicated above.
31. The period of sentence is to be set off from the period which the accused already undergone.
32. Return the LCR forthwith.
33. We deeply appreciate the assistance rendered by Mr. S. Banik, learned Amicus Curiae in disposing the present appeal. We, therefore, direct the State to pay him an amount of Rs. 7,000/- (Rupees Seven Thousand only) as being his professional fee and same needs to be paid within a period of 3 (three) months from the date of receipt of a certified copy of this judgment.
JUDGE JUDGE
Rupam
Crl. A. (J). No. 104 of 2012