Gauhati High Court
Petowa Dhan vs The State Of Assam on 19 November, 2014
Author: M.R. Pathak
Bench: M.R. Pathak
IN THE GAUHATI HIGH COURT
(The High Court of Assam: Nagaland: Meghalaya:
Manipur:Tripura: Mizoram & Arunachal Pradesh)
Crl. Appeal (J) No. 108/2011
Sri Petuwa Dhan,
S/o- Late Debaru Dhan,
Village- Deobil,
P.S.- Tengakhat,
Dist.- Dibrugarh.
...... Appellant
-Versus-
The State of Assam.
...... Respondent
PRESENT
HON'BLE MR. JUSTICE C.R. SARMA
HON'BLE MR. JUSTICE M.R. PATHAK
For the Appellant : Mr. R. Dey,
Amicus Curiae.
For the Respondent : Mr. D. Das,
Additional Public Prosecutor,
Assam.
Date of Hearing : 19.11.2014
Date of Judgment : 19.11.2014.
JUDGMENT & ORDER (ORAL)
(C.R. Sarma, J) This appeal is directed against the judgment and order, dated 29.10.2011, passed by the learned Sessions Judge, Dibrugarh, in Sessions Case No.47/2008, whereby the learned Sessions Judge convicted the appellant, under Section 302 of the Indian Penal Code (for short, IPC) and sentence him to suffer imprisonment for life and pay fine of Rs.2,000/-, in default, suffer rigorous imprisonment for another period of 3 (three) months.
Crl A (J) No. 108/11 Page 1 of 9Direction has also been made to treat the period of imprisonment, already undergone by the petitioner, as set off under Section 428 of the Code of Criminal Procedure (for short, Cr.P.C.).
(2) Aggrieved by the said conviction and sentence, the convicted person, as appellant, has preferred this appeal, from jail. As there was none to represent the appellant, Mr. R. Dey, learned Counsel, has been appointed as the Amicus Curiae to represent the appellant.
(3) The prosecution case, in brief, is that, on the night of 21.07.2007, when the deceased and his wife (PW-2) were preparing to go to their bed, the appellant, who was the son of the deceased, entered his house, with a dao and made attempt to attack PW-2 i.e. wife of the deceased. The deceased put up resistance and the appellant inflicted several dao blows on the deceased as a result of which, he succumbed to the injuries.
(4) Mr. Balu Dhan (PW-1), one of the sons of the deceased, came to know about the occurrence, on the next morning, from his mother and lodged the FIR with the Police, on 22.07.2007.
(5) On receipt of the FIR, Police registered a case under Section 302 IPC and launched investigation into the matter. The I.O. (PW-9) visited the place of occurrence, prepared the inquest repot in respect of the dead body, send the dead body for post mortem examination and examined the witnesses. As the appellant absconded, immediately after the occurrence, he could be arrested on 12.12.2007. On being produced by the appellant Police seized a dao.
(6) At the close of the investigation, the I.O. submitted charge-sheet under Section 302 IPC. The offence being Crl A (J) No. 108/11 Page 2 of 9 exclusively triable by the Court of Sessions, the learned SDJM(S), Dibrugarh committed the case to the Court of Sessions.
(7) The learned Sessions Judge framed charge under Section 302 IPC. The charge was read over and explained to the accused, to which he pleaded not guilty. His plea was a denial one and claimed to be tried.
(8) In order to prove his case, the prosecution examined as many as 9 (nine) witnesses, including the Medical Officer (PW-8), who performed autopsy on the dead body of the deceased and the Investigating Police Officer (PW-9).
(9) At the end of the examination of the prosecution witnesses, the accused person was examined, under Section 313 Cr.P.C. He denied the allegations, brought against him and declined to adduce evidence.
(10) Considering the evidence on record, the learned Sessions Judge found the appellant guilty and accordingly, convicted and sentenced him, as indicated above.
(11) Mr. R. Dey, learned Amicus Curiae, taking us through the evidence, on record, has submitted that there is no other eye witnesses to the occurrence, except the wife of the deceased. The learned Amicus Curiae has submitted that the prosecution failed to establish, beyond all reasonable doubt, that the appellant had inflicted fatal blows. It is also submitted that there are contradictions in the evidence of PW-2 and the medical evidence, regarding the number of injuries and as such, it is not safe to rely on the sole testimony of the PW-2, without corroboration.
Crl A (J) No. 108/11 Page 3 of 9(12) The learned Amicus Curiae has submitted that the learned Sessions Judge committed error by recording the conviction and the sentence against the appellant and that the appellant is entitled to be acquitted, on benefit of doubt.
(13) Mr. D. Das, learned Additional Public Prosecutor, referring to the evidence, on-record, has submitted that the evidence of PW-2, who was the eye witness of the occurrence, remained undemolished and as such, her evidence, coupled with the circumstantial evidence, surfaced from the evidence, given by the prosecution witnesses, is sufficient to hold the appellant guilty of causing the murder of the deceased.
(14) Supporting the impugned judgment and order, the learned Additional Public Prosecutor has submitted that the numbers of injuries, inflicted by the appellant and the nature of the weapon, used by him, abundantly indicate that the appellant, with the intention of causing the death, had inflicted the blows, of his father. In view of above submission, the learned Additional Public Prosecutor has submitted that the learned Sessions Judge committed no error by convicting and sentencing the appellant, as aforesaid.
(15) Having heard the learned Counsel, appearing for both the parties, we have carefully perused the evidence, on-record. Admittedly, there is no other eye witness to the occurrence except the mother of the appellant i.e. the wife of the deceased. The occurrence took place, on the night of 21.07.2007, in the house of the deceased, wherein, the deceased and PW-2 were living together. Therefore, considering such facts and circumstances, it is safely possible to hold that except the PW-2 there was no other eye witness to the occurrence.
Crl A (J) No. 108/11 Page 4 of 9(16) PW-2, in her evidence, clearly stated that her son i.e. the appellant, armed with a dao, entered their house and wanted to cut her, but, on being resisted by her husband i.e. the deceased, her said son inflicted dao blows on the deceased. She further stated that out of fear, she had run away and that her said son i.e. appellant had chased her. According this witness, she had taken shelter in the house of her nephew Akshay Dhan. PW-2 further stated that, on the next morning, she informed her another son, namely, Balu Dhan (PW-1), about the occurrence. She also exhibited the dao, used by the appellant as Material Exhibit No. 1. She clearly stated that the said dao belonged to the appellant. This witness was cross-examined on behalf of the defence. She denied the suggestion that she had falsely implicated the appellant due to influence of liquor.
Despite cross-examination, no contradiction could be elicited to render her evidence disbelieve. The evidence of the said witness, who was none, other than the mother of the appellant, convincingly lead to believe that the appellant had attacked his father i.e. the deceased with a dao causing his death.
(17) Sri Balu Dhan, who was one of the sons of the deceased, deposing as PW-1, stated that, on the fateful night, he stayed in the house of Lakhi Konwar and on the next morning, he was informed by his mother i.e. PW-2 about the occurrence. He stated that his mother had informed him that his brother i.e. the appellant had hacked his father. On being so informed, the PW-1 had lodged the FIR with the Police and accompanied the Police to the place of occurrence.
(18) According to PW-1, he found the dead body of his father in their house. Though this witness was subjected to cross- examine, his said evidence remained undemolished.
Crl A (J) No. 108/11 Page 5 of 9(19) The I.O., who deposed as PW-9, stated that on 22.07.2007, at about 10.30 a.m., he received an ejahar from PW-1. He exhibited the ejahar as Ext. 5. According to this witness, he visited the place of occurrence and found the dead body of the deceased lying in his house in injured condition. He has also exhibited the inquest report as Ext. No. 1, prepared by the Circle Officer Sri Pranab Kumar Borah. He further stated that he forwarded the dead body of the deceased for post mortem examination.
(20) The Medical Officer (PW-8), who performed the autopsy in respect of the dead body on 23.07.2007, stated that he found the following injuries in respect of the dead body:
"(1) Chopped wound involving from the right angle of the mouth up to the right side of the neck of Size 19 cm x 5 cm bone deep with dissection of 1st cervical vertebrae and spinal cord.
(2) Incised wound of size 12 cm x 4 cm bone deep over right temporal area. Just below the label of slicing the outer label of the mastoid process.
(3) Chopped wound of size 18 cm x 7 cm, bone deep in right side of the neck with complete dissection of the vertebral column and spinal cord, the neck is attached only by the muscles of left side of the neck.
(4) Incised would of size 5 cm x 2 cm bone deep in back of right elbow.
(5) Stab wound, wedged shaped of size 9 cm x 4 cm chest cavity deep in front of chest over the 6th rib with tailing towards left.
Cranium and Spinal Canal- Scalp, skull and vertebrae as described in the injuries.
Crl A (J) No. 108/11 Page 6 of 9Brain- Healthy and pele. Spinal Cord- dissected as described.
Throdax- Walls, ribs and cartilages- as described in the injury No. 5. Pleaurae- perforated, cavity contained 250 ml of blood.
Lyrnx and Trachea- Incised in the right side. Right lung- healthy and pale. Left lung- punctured in the lower lobe. Pericardium- perforated Heart- punctured in the anterior surface. Vessels -healthy. Abdomen- walls healthy. Peritonoum- healthy and pale. Mouth, pharynx and oesophagus was healthy. Others as described in the injury. Stomach healthy and pale contained partially digested food without suspicious smell. Small intestine- healthy and pale and contained digested food material without suspicious smell. Large intestine- healthy and pale. Liver, spleen, kidney, bladder and organs of generation- All healthy and pale."
The Medical Officer opined that the injuries were homicidal in nature caused by sharp weapon and that the injury in respect of the spinal cord was the cause of instant death of the deceased.
(21) The accused declined to cross-examined the said Medical Officer and as such, his evidence, along with the opinion, remained undemolished.
(22) PW-3 Mohan Murmu, PW-4 Moga Demta, PW-5 Rajen Murmu, PW-6 Lakhi Konwar and PW-7 Chinu Dhan, stated about the finding of the deceased in his house. The said witnesses did not see the occurrence. They appeared in the place of occurrence after the incident on being informed by others. Therefore, their evidence leads to the findings that the deceased was lying, in injured condition, in his house and the same was found on the next morning. The said evidence has been fortified by the evidence given by PW-9 i.e. I.O., who also found the dead body Crl A (J) No. 108/11 Page 7 of 9 of the deceased in their house with injuries on his person. The above discussed medical evidence has corroborated the fact regarding injuries, sustained by the deceased.
(23) From the above discussed evidence, it is clear that the deceased died due to the injuries, sustained by him and that the injuries were caused by a sharp cutting weapon i.e. dao.
(24) The eye witness i.e. PW-2 clearly stated that the appellant caused the injuries with a dao. The above discussed circumstantial evidence, coupled with the said evidence, given by the eye witness i.e. PW-2 clearly lead to the findings that, none other than the appellant, had caused the death of the deceased. The number and nature of the injuries inflicted, the type of the weapon used and the parts of the body (vital parts), on which the injuries were inflicted, sufficiently lead to the conclusion that the appellant had inflicted blows with an intention to cause the death of the deceased.
(25) In view of the above, we find no difficulty in understanding that the appellant had committed the offence under Section 302 IPC. We have no hesitation in holding that the learned trial Judge rightly convicted and sentenced the appellant. Therefore, we uphold and affirm the impugned judgment and order.
(26) Accordingly, we find no merit in this appeal. Hence, the appeal is dismissed.
(27) Before we part with this record, we acknowledge with appreciation the service, rendered by Mr. R. Dey, learned Amicus Curiae and accordingly we order that an amount of Rs.7,000/- (Rupees Seven Thousand) be paid to the learned Amicus Curiae Crl A (J) No. 108/11 Page 8 of 9 by the Assam State Legal Services Authority, as his remuneration.
(28)The LCR be returned.
JUDGE JUDGE
Kishor
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