Gauhati High Court
Sri Jalatkar Modi & 2 Ors vs The State Of Assam on 1 November, 2016
Equivalent citations: 2017 CRI. L. J. 447, (2017) 170 ALLINDCAS 548 (GAU) (2017) 3 GAU LR 470, (2017) 3 GAU LR 470
Author: N. Chaudhury
Bench: N. Chaudhury
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CRIMINAL APPELLATE JURISDICTION)
Criminal Appeal (J) No.84 of 2013
1. Sri Jalatkar Modi
2. Sri Anil Modi
3. Sri Mahesh Modi ... ... ... Appellants
-Versus-
The State of Assam ... ... ... Respondent.
BEFORE HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH HON'BLE MR. JUSTICE N. CHAUDHURY For the appellants : Mrs. P. Bhattacharya, Amicus Curiae.
For the respondent : Mr. P. P. Baruah,
Public Prosecutor, Assam.
Date of hearing : 01.11.2016.
Date of Judgment : 01.11.2016.
JUDGMENT & ORDER
(N. Chaudhury, J.)
The three appellants, namely, Jalatkar Modi, Anil Modi and Mahesh Modi have jointly preferred this appeal challenging their conviction under Sections 302/324/34 of the Indian Penal Code by judgment and order dated 19.06.2013 in Sessions Case No.155/2010 of Crl. A.(J) No.84/2013 Page 1 of 12 the Court of learned Sessions Judge at Dibrugarh. They have been convicted under Sections 302/324/34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs.1000/- each, in default to suffer simple imprisonment for one month.
2. The prosecution story is that one Smt. Ganga Tamang lodged an ejahar with Rajgarh Police Outpost of Tingkhong Police Station on 01.08.2010 informing that on the previous night at around 8.30/9.00 p.m. when her husband Dilip Tamang was going for cremating a dead body along with one Budhiman Tamang, Jalat Modi killed both of them on the road near Diroi River with sharp weapon. Rajgarh Outpost G.D. Entry No.9 dated 01.08.2010 was accordingly registered at 2.00 p.m. and the same was forwarded to Tinkhong Police Station whereupon Tingkhong Police Station Case No.97/2010 under Section 302 of the Indian Penal Code was registered on the same day and police started investigation.
3. Police recovered the two dead bodies and sent them for post mortem examination. The statements of the witnesses were also recorded and thereafter police filed charge sheet against all the three accused persons. On being committed to Sessions vide order dated 10.11.2010 by the learned Sub-Divisional Judicial Magistrate(S), Dibrugarh, Sessions Case No.155/2010 was registered and learned Sessions Judge framed charge under Section 302 read with Section 34 Crl. A.(J) No.84/2013 Page 2 of 12 of the Indian Penal Code against all the three accused persons. They pleaded not guilty and claimed to be tried.
4. Prosecution examined as many as 18 witnesses out of whom there are four eye-witnesses, namely, PW 10, PW 11, PW 12 and PW 13. PW 1, Raju Tamang, came to know about the incident on the following day of occurrence and then proceeded to the place of occurrence. He found dead body of Dilip Tamang on the road of Pithapathar village with cut injuries in his neck and body. He also saw dead body of Budhiman lying on the bank of river Diroi. He was a witness to the inquest report Exhibit-1.
5. PW 2, Ramesh Tamang, came to know about the incident on the morning of the following day from one Bir Bahadur, the younger brother of deceased Budhiman. Thereafter he went to the place of occurrence. Police came and prepared the inquest report. He became a witness to the inquest.
6. PW 3, Sanjib Tamang, was also not present at the time of occurrence. He came to know about the incident from Shekhar Tamang (PW 10), Raju Prasad (PW 11), Dhutru Modi (pw 13 and Jantu Majhi (PW 12) that accused persons had cut Dilip and Budhiman at Pithapathar village and felled one of them in the river. These persons further told him that the accused had chased them too. He went to the place of occurrence on the same night and found the body of his brother Dilip lying on the ground. He was lying dead. Budhiman, the son Crl. A.(J) No.84/2013 Page 3 of 12 of his maternal uncle, was also found lying dead. He thereafter informed his mother and elder sister over mobile phone.
7. PW 4, Naina Tamang, found a missed call on his mobile phone on the following morning from the elder sister of deceased Dilip Tamang. The mobile was in the silent mode and so he did not notice it. When he noticed on the following day he called up Chanu, the elder sister of deceased Dilip, who told him that Dilip and Budhiman had been killed in Pithapathar village. He saw the dead body of Dilip in front of the house of a labourer. He signed on the inquest report Exhibit-1.
8. PW 5, Amit Purti, heard from the public in the following morning of the incident about the occurrence and thereafter went to the place. He was a witness to Exhibit-2 inquest report.
9. PW 6, Dil Bahadur Tamang, came to know about the incident from Bir Bahadur Tamang on the following morning of occurrence and came to know that Dilip and Budhiman had been killed in Pithapathar village. He rushed to the place and found police present there. He signed Exhibit-2 inquest report of Budhiman as a witness.
10. PW 7, Raj Kumar Rai alias Raj Bahadur, stated that he came to know about the incident on the following morning of occurrence and went there. He saw the dead body of Budhiman lying in the water of Diroi River with a cut injury at his neck. Dead body of Dilip was lying on the road. He also became a witness to Exhibit-2 inquest report. Crl. A.(J) No.84/2013 Page 4 of 12
11. PW 8, Bir Bahadur Tamang, is the younger brother of deceased Budhiman Tamang. On the following morning of the incident Budhiman's wife informed him that Budhiman was lying dead beside the river Diroi. He immediately went there and saw his dead body in the water. Thereafter police and Magistrate came to hold inquest. He became a witness to the inquest.
12. PW 9, Tulan Saikia, stated that Prem Kumar, the elder brother of deceased Dilip Tamang and two other persons came to his house and informed about murder of Dilip and Budhiman. Accordingly he informed the police over telephone. Police came to his house and then he accompanied them to the place of occurrence at Modi Basti in Pithapather village. He found dead body of Dilip lying on the road with cut injury in his neck. Dead body of Budhiman was not found at that time but on the following morning the dead body of Budhiman was found on the bank of river Diroi with injuries on his head and neck. He was informed by the Investigating Officer that Material Exhibit-1 was the dao seized by police from accused Jalatkar.
13. PW 10, Shekhar Tamang, is an eye-witness. According to him, at around 8.30 p.m. on the night of occurrence he along with others went to crematorium to cremate the dead body of his grandmother. Dilip, Budhiman, Raju Prasad, Dhatru and Mantu also went with him. When they neared Modi Basti all on a sudden three accused persons came out from garden. Accused Jalatkar hacked a dao blow on Dilip and Crl. A.(J) No.84/2013 Page 5 of 12 the other two accused persons chased Budhiman. They were also armed with dao. Out of fear he fled from the scene but noticed that Budhiman was being chased by the other two accused persons, viz., Anil and Mahesh. In course of his cross-examination he remained firm and asserted that he had fled only after witnessing assault on Dilip by Jalatkar. In course of his cross-examination he further stated that while running away from the place of occurrence he saw Budhiman's leg got stuck in the bridge over the river when other two accused persons meaning thereby Anil and Mahesh inflicted blow on him with dao and felled him in the river. He proved his statement recorded under Section 164 Cr.P.C. as Exhibit-5.
14. PW 11, Raju Prasad, was also present at the place of occurrence at the relevant time being a member of the group for cremating dead body. He confirmed that the cremation party included Mantu Majhi, Shekhar Tamang, Dhatru, Dilip and Budhiman. According to him, all on a sudden the three accused came out of their house. Anil and Mahesh held Dilip when Jalatkar cut him with a dao. His neck was cut. When others tried to put resistance accused Anil tried to cut him and in the process he sustained incised injury in the left thumb. At that time he noticed accused Jalatkar chased Budhiman.
15. PW 12, Mantu Majhi, corroborated PW 10 and PW 11 in saying that he was in the cremation party and when they came near Modi Basti the three accused persons appeared all on a sudden and cut Crl. A.(J) No.84/2013 Page 6 of 12 Dilip. Having seen the incident they panicked and ran away. In the following morning he came to know that both Dilip and Budhiman had been killed. He was examined under Section 164 of the Code of Criminal Procedure and Exhibit-6 is his statement.
16. PW 13, Dhatru Modi, stated that all of them were going towards crematorium. When they came near Modi Basti the three accused persons appeared all on a sudden. Anil and Mahesh held Dilip and Jalat cut him with a dao. Having seen the incident they fled from the place. Budhiman was also cut a little away from the place. When the accused persons chased them they fled from the place.
17. PW 14, Ganga Tamang, is the widow of deceased Dilip Tamang. She filed the ejahar.
18. PW 15, Ram Kumar Tamang, who was witness to Exhibit-3 seizure list when a pruning knife was seized from his village. Material Exhibit-1 is the said dao (knife).
19. PW 16, Dr. Munin Gogoi, examined PW 10, Raju Prasad, and found a sharp cut injury over his left thumb measuring 4 cm x ½ cm. The injury, according to him, was caused by sharp weapon and Exhibit-7 is the report submitted by him in this regard.
20. PW 17, Dr. S. I. Borbhuyan, held post mortem over the dead bodies of Dilip Tamang and Budhiman Tamang. He held post mortem Crl. A.(J) No.84/2013 Page 7 of 12 on 01.08.2010 and found following injuries on the person of Budhiman Tamang :-
"1. Incised wound 2.5 cm x 1 cm, bone deep present over the right cheek.
2. Incised wound of U shape over the frontal part of scalp.
3. Incised wound 7 x 4 cms lower part of back of neck skip, muscle, nerves and vessels and 7th cervical vertebrae partially incised.
4. Incised wound 20 x 1.5 cms extending from left temporal region of scalp upto upper part of neck.
5. Incised wound 6 x 3 cms right of neck in the lower part.
6. Skin, muscles, nerves and vessels are incised. 6th cervical vertebrae is obliquely incised."
Upon post mortem examination over the dead body of Dilip Tamang he found the following injuries :-
"1. Incised wound 20 x 4 cms extending from the chin of the mandible upto the back of the neck obliquely placed on the left side of face. Neck, skin, muscles, nerves and vessels are incised. Mandible and left ear lobule are incised. 2nd cervical vertebrae partly incised.
2. Incised wound 17 x 1.5 cms present on the left side of the face and scalp extending and the scalp extending from the left cheek upto the temporal region of scalp.
3. Incised wound 8 x 6 cms. In the right side of the neck at about the middle. Skin muscle etc. are incised."
All these injuries were caused by sharp weapon and were ante mortem in nature. The injuries were homicidal. Exhibit-8 is the post mortem report of Budhiman Tamang and Exhibit-9 is the post mortem report of Dilip Crl. A.(J) No.84/2013 Page 8 of 12 Tamang. This witness was not cross-examined by the prosecution. It would appear from above that both the dead bodies contained multiple injuries caused by sharp weapon on vital parts of their body.
21. PW 18, Dipak Baishya, is the Investigating Officer in this case. He proved all the documents including post mortem report and the statements of witnesses recorded under Section 164 of the Code of Criminal Procedure. He deposed that accused Jalatkar Modi came to Police Station and handed over the seized dao. He confessed to have committed murder of Dilip Tamang. There was no blood stain on the dao. But he did not forward the accused to Court for recording statement under Section 164 of the Code of Criminal Procedure. The confession, if there be any, is inadmissible in evidence in view of Section 26 of the Evidence Act.
22. The learned Sessions Judge examined all the three accused persons under Section 313 of the Code of Criminal Procedure when accused Jalatkar claimed that he alone had killed Budhiman and Dilip with a dao as they had come to his house with weapon in their hands at 8.00 p.m. and kicked at the door of his house. The other two accused persons denied correctness of the evidence adduced by the prosecution and claimed to have come to the place of occurrence only after the incident had taken place. Relying on all the evidence the learned Sessions Judge was of the view that all the three accused persons are guilty of committing offence under Sections 302/324/34 of Crl. A.(J) No.84/2013 Page 9 of 12 the Indian Penal Code for causing death of Dilip Tamang and Budhiman Tamang and accordingly convicted them to suffer rigorous imprisonment for life and also to pay a fine of Rs.1000/- each, in default to suffer simple imprisonment for one month.
23. We have heard Mrs. P. Bhattacharya, learned Amicus Curiae for the appellants and Mr. P. P. Baruah, learned Public Prosecutor for the State. We have also perused the lower Court records.
24. On an appraisal of the evidence adduced by the prosecution witnesses it appears that PW 10, PW 11, PW 12 and PW 13 along with the two deceased persons were going to crematorium for cremating a dead body on the fateful night. They were carrying the dead body and when they came near Modi Basti where house of the three accused persons is situated, the three of them came out all on a sudden and charged with sharp weapons. There were as many as five incised injuries on the person of Budhiman Tamang whereas three incised injuries were found on the dead body of Dilip Tamang. All these injuries were inflicted on the vital parts of the body to ensure that the victims die. Four eye- witnesses, namely, Shekhar Tamang (PW 10), Raju Prasad (PW 11), Mantu Majhi (PW 12) and Dhatru Modi (PW 13) gave the same description of the incident. All of them were present when the three accused persons had attacked on them at the relevant time. PW 11, Raju Prasad, himself sustained injury. His left thumb was cut because of the assault by sharp weapon. All of them noticed that Jalatkar Modi Crl. A.(J) No.84/2013 Page 10 of 12 inflicted dao blows on Dilip. His dead body was found on the road near the bridge. PW 11 specifically stated that accused Anil and Mahesh held Dilip and Jalatkar hacked him with dao. Then Anil attacked him with dao. As he resisted, he sustained cut injury in his thumb and he fled. But in course of cross-examination he disclosed that these two accused persons, namely, Anil and Mahesh, hacked dao blows on Budhiman when his leg was stuck in the bridge. They felled him in the river. The five incised injuries found in the dead body of Budhiman Tamang are in conformity with the ocular evidence of PW 11. Even PW 10 noticed that accused Anil and Mahesh were chasing Budhiman Tamang from behind with dao in their hands. It appears that Jalatkar went to the Police Station after the incident to surrender and in course of his statement under Section 313 of the Code of Criminal Procedure, he made a desperate bid to save two of his brothers, namely, the other two accused persons by himself taking the responsibility of killing two persons with dao. When four eye-witnesses found all the three accused persons at the place of occurrence with dao in their hands and there are multiple injuries on the persons of the two victims it is not possible that accused Jalatkar alone committed murder of two persons and left the dead bodies at two different places. The version of PW10 and PW 13 that Anil and Mahesh held Dilip and Jalatkar inflicted dao blows on him has remained unrebutted. The disclosure made by PW 11 about inflicting injuries on the person of Budhiman on the bridge over river Diroi also cannot be disbelieved.
Crl. A.(J) No.84/2013 Page 11 of 12
25. Considering the entirety of the evidence it does not appear that the learned Sessions Judge has committed any error in convicting the three accused/appellants under Sections 302/324/34 of the Indian Penal Code and in sentencing them accordingly. We, therefore, do not feel that there is any scope to interfere with the conviction and sentence of the three appellants. Accordingly, the appeal stands dismissed.
Send down the records.
JUDGE CHIEF JUSTICE
T U Choudhury
Crl. A.(J) No.84/2013 Page 12 of 12