Gauhati High Court
Bhabani Gogoi vs The State Of Assam on 17 February, 2012
Author: A.K. Goel
Bench: A.K. Goel
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IN THE GAUHATI HIGH COURT
(THE HGIH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL
PRADESH)
CRIMINAL APPEAL NO. 52(J)/ 2007
Bhabani Gogoi ....Petitioner/ Appellant.
Vs.
State of Assam .... Respondent.
PRESENT
HON'BLE THE CHIEF JUSTICE MR. A.K. GOEL
HON'BLE MR. JUSTICE C.R. SARMA.
For the Petitioner/ Appellant : Mr. Sanjoy Kr. Medhi-II,
Amicus Curiae.
For the Respondent : Mr. D. Das, Addl. Public
Prosecutor, Assam.
Date of hearing : 13.12.2011
Date of Judgment : 17.02.2012
JUDGMEMT AND ORDER (CAV)
C.R. Sarma, J.
This appeal is directed against the judgment and order
dated 2.1.2007, passed by the learned Sessions Judge,
Dibrugarh, in Sessions Case No. 110/2004. By the
impugned judgment and order, the learned Sessions Judge
convicted the appellant u/s. 302 IPC and sentenced him to
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suffer imprisonment for life and pay fine of Rs. 5,000/-, in
default suffer rigorous imprisonment for another period of
2 (two) months.
2. Aggrieved by the said conviction and sentence, the
convicted person, as appellant, has come up with this
appeal. We have heard Mr. Sanjoy Kr. Medhi, learned
Amicus Curiae and Mr. D. Das, learned Addl. P.P., Assam,
appearing for the State respondent.
3. The prosecution case, in brief, is that on 14.5.2003 at
about 11-30 p.m. when Sri Mantu Chetia, hereinafter called
the deceased, was returning home with Mr. Jitu Tapan
Konwar, (PW-1) and Mr. Ramen Phukan, (PW-3). Sri
Bhabani Gogoi i.e. the appellant intercepted the deceased
on the road, and hacked him to death with a dao. Though
the deceased was shifted to the hospital, he succumbed to
the injuries on way to the hospital.
Sri Pabitra Phukan, the brother of the deceased lodged
the FIR with the police on 15.05.2003. On receipt of the
said FIR, police registered a case u/s. 341/302 IPC and
launched investigation into the matter.
4. During investigation police visited the place of
occurrence, prepared inquest report (Ext-5) to the dead body
of the deceased, sent the dead body for post mortem
examination, examined the witnesses and arrested the
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appellant. Police also seized a meat dao vide Ext. 3(4) on
being shown by the appellant.
5. At the close of the investigation police filed charge-
sheet u/s. 341/302 IPC.
The offence being exclusively triable by the Sessions
Court, the case was committed and the learned Sessions
Judge framed charges u/s. 341 and 302 IPC. The charges
were read over and explained to the appellant, to which he
pleaded not guilty. The appellant claimed to be tried.
The prosecution examined as many as 10 witnesses
including the medical officer (PW-4), who conducted the
autopsy and the Investigating Police Officer (PW-10). At
the close of the evidence for the prosecution, the accused
person i.e the appellant was examined u/s. 313 Cr.P.C. He
denied the allegations, brought against him. No defence
evidence has been adduced on his behalf.
Considering the evidence, on record, the learned
Sessions Judge held the appellant guilty of the offence u/s.
302 IPC and accordingly convicted and sentenced as
indicated above.
6. The learned Amicus Curiae, appearing for the
appellant, has submitted that there is no sufficient evidence
against the appellant and that there is no corroboration in
the evidence of PW-3, who claimed to be an eye witness. In
view of the above, it is submitted that the learned Sessions
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Judge committed error by convicting and sentencing the
appellant u/s. 302 IPC.
The learned Addl. P.P., supporting the impugned
conviction and sentence submitted that there is enough
substantive evidence, including the evidence of the eye
witness (PW-3), against the appellant and that the learned
Trial Judge rightly convicted and sentenced the appellant,
requiring no interference by this Court, in this appeal.
For appreciating the counter arguments, advanced by
the learned counsel, appearing for both the parties and to
examine the correctness of the impugned judgment and
order, we feel it, appropriate to, briefly, scan the evidence,
on record.
7. It appears from the FIR that the deceased, at the time
of occurrence, was returning home along with PW-1 and
PW-2. Therefore, as claimed by the prosecution, both PW-1
and PW-3 were eye witnesses to the occurrence. Sri Jitu
Tapan Konwar (PW-1) declined to support the prosecution
version regarding involvement of the appellant. In his
evidence, given as PW-1, this witness stated that, when he
returning home, along with Sri Ramen phukan, (PW-3),
after attending the Santi Biya (a form of marriage) in the
house of Sri Joy Phukan, they found the deceased near the
Tiniali (i.e. tri juncture of roads) in injured condition lying
unconscious. He further stated that they had informed Sri
Subhas Chetia i.e. the elder brother of the deceased, who
took the deceased to hospital, where he succumbed to his
injuries. This witness was cross-examined, after declaring
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hostile, by the prosecution. Though this witness was cross-
examined by the prosecution, no incriminating evidence,
against the appellant, could be elicited. However, from his
evidence, it is found that he, along with PW-3, found the
deceased in injured condition, on the road and the deceased
succumbed to the injuries.
8. Sri Pabitra Chetia, the brother of the deceased
deposing as PW-2, stated that he, along with the deceased,
attended the marriage ceremony, in the house of Sri Joy
Phukan and the deceased had left the place along with Sri
Ramen Phukan, (PW-3) and Sri Jitu Tapan Konwar, (PW-1)
leaving him behind. He further stated that Sri Ramen
Phukan and Sri Jitu Tapan Konwar returned to the marriage
venue and informed that Bhabani Gogoi i.e. the appellant
had cut the deceased. According to this witness, on being so
informed, he rush to the place of occurrence and found the
deceased on the road. He further stated that the deceased
had told him that the appellant had cut him. He has
exhibited the FIR, lodged by him, as Ext. 1 and his
signature thereon, as Ext. 1(1). Though this witness was
cross-examined, on behalf of the defence, no material
contradiction could be elicited to demolish his said
evidence. From his cross-examination, made by the defence
nothing could be elicited to show that this witness had any
grudge or adverse interest to falsely implicate the appellant.
In the FIR, which was lodged, immediately after the
occurrence, this witness, as informant, had stated that both
PW-1 and PW-3 had informed him that the appellant had
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cut the deceased with a dao. Therefore, we find sufficient
corroboration in the statement made in the FIR as well as in
the oral evidence, given by the PW-2, regarding the
information given to him by the PW-1 and PW-3. In the
absence of anything contrary, we find no reason to dis-
believe the evidence given by PW-2.
9. Shri Ramen Phukan, who was an eye witness to the
occurrence, deposed as PW-3. Supporting the prosecution
version, this witness stated that, when he was returning
home, after attending the marriage ceremony held in the
house of Sri Joy Phukan, along with the deceased and Sri
Jitu Tapan Konwar, PW-1, the appellant had inflicted blows
with a dao, on the head of the deceased. Corroborating the
evidence of PW-2, this witness stated that they had
informed the PW-2, about the incident and that the
deceased died on his way to the hospital. This witness was
also duly cross-examined on behalf of the defence. He
categorically stated that he, along with PW-1, was returning
home and saw the incident. From his cross-examination, no
material contradiction or discrepancy, could be elicited to
demolish his evidence. There is nothing, on record, to show
that this witness had any adverse interest against the
appellant to falsely implicate him. Therefore, we find no
reason to disbelieve him and hold that he had falsely
implicated the appellant, leaving the actual culprit.
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10. From the evidence of PW-1 and PW-3, it is clearly
found that both of them were returning home, after
attending the marriage in Joy Phukan's house. From the
above, it transpires that on the date of occurrence a marriage
ceremony was held in the house of Joy Phukan and PW-1,
PW-2 and the deceased had attended the said marriage. The
said circumstance makes it believable that they had returned
home together and the occurrence took place when they
were on the road. The refusal of PW-1, to support the
prosecution version, regarding involvement of the appellant,
who was a co-villager, cannot be sufficient ground to negate
the forceful evidence given by the PW-3. Therefore, in the
absence of any contradiction or discrepancy, we find no
difficulty in accepting the evidence, given by the PW-3.
From the evidence as discussed above, it has been
clearly established that the deceased died on the fateful
night due to the injuries sustained by him at the hands of the
appellant.
11. PW-4 is the medical officer, who performed the
autopsy on the dead body of the deceased. The medical
officer found the following injuries in respect of the dead
body of the deceased. The said medical officer opined that
the deceased died due to the injuries sustained on his head
and that the injuries were anti-mortem, caused by heavy
sharp cutting weapon and homicidal in nature. The doctor
found the following injuries :
" 1. An incised wound over the lower 3 rd of the left
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leg measuring 11x 4 cms and cutting the tibias.
2 An incised wound over the lower 3rd of the left leg
measuring 10 x 3 cms and muscle deep.
3 An incised wound over the dorsum of the left hand
measuring 3 x 1 cms muscle deep.
4 An incised wound over the lower 3rd of the left arm
in the back measuring 6 x 5 cms and muscle deep.
5 A linear abrasion below the left scapula measuring
9 x 0.5 cms.
6 An incised wound over the left cheek measuring 6 x
2 cms and cutting the mandible.
7 An incised wound over the left forehead measuring
8 x 2 cms and cutting bone.
8 An incised wound over the outer canthus of the left
eye and forehead measuring 13 x 3 cms and cutting
bone.
9 An incised wound over the left side of the head
including the left ear measuring 22 x 4 cms and
cutting bone and brain.
10 An incised wound over the left occipital region
measuring 17 x 4 cms and cutting the brain."
12. From the above medical evidence, it is found that the
deceased sustained multiple injuries on various parts of his
body including the head and he died due to the injury
sustained on the head. The PW-3, who claims to be the eye
witness to the occurrence stated that the appellant had
inflicted dao blow on the head of the deceased and his
evidence has remained un-demolished . Therefore, we find
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sufficient corroboration in the oral evidence, given by the
PW-3 and the medical evidence, given by PW-4 to believe
that the deceased sustained injuries on the head. The
evidence given by the PW-3, regarding inflicting of the
injuries with a dao has been corroborated by the medical
evidence, which reveals that the injuries were caused by a
sharp cutting weapon i.e. a dao.
From the evidence of PW-3 it has been established
that the appellant had caused the said injuries.The multiple
injuries sustained by the deceased, more particularly on the
head, which is a vital part, at the hands of the appellant,
indicates that the appellant had the intention to cause the
death of the deceased.
13. PW-5, who was a witness to the inquest report,
prepared by the investigating officer, did not see the
occurrence. Shri Puniswar Gogoi, who is the father of the
appellant, deposing as PW-6, stated that his son was
arrested by Police. He being the father of the appellant, his
failure to support prosecution version is not surprising. This
witness was also declared hostile by the prosecution. Of
course, no incriminating evidence could be elicited from his
cross-examination.
There is no substantive evidence to show that the dao
was recovered / seized at the instance of the appellant. The
Investigating officer stated that Bhabni Gogoi, at the time of
assaulting the deceased used the said dao. Sri Puneswar
Gogoi, (PW-6), father of the appellant stated that he did not
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know where from the Investigating Officer had collected
the dao.
14. Sri Joy Phukan, who deposed as PW-7, is the uncle of
the appellant. He did not whisper anything incriminating
against the appellant. His refusal to say anything against the
appellant, in view of his close relationship with the
appellant, is not surprising. Sri Bijay Gogoi, who deposed
as PW-8 also did not state anything against the appellant.
According to PW-7 and PW-8 aforesaid police took their
signatures on ext. 3 i.e. the seizure list by which the police
seized the dao. They did not state anything indicating that
the dao was seized in their presence.
In view of the above, the evidence, given by PW-5,
PW-6, PW-7 and PW-8, does not have substance, inasmuch
as, they declined to support the prosecution version.
15. Sri Cheni Ram Das, PW-9 and Sri Tupidhar Gogoi
were investigating police officers. The investigation was
done by PW-10 and after his retirement the case diary was
handed over to the PW-9, who, after completing the
investigation, submitted the charge-sheet (Ext.-4). PW-10,
in his evidence, stated that the inquest was conducted by
circle officer, namely, Mr. N. Dutta. He has exhibited the
inquest report as ext. 5. He also stated that, on being shown
by the appellant, a meat dao (a sharp cutting weapon) was
seized by him vide ext. 3. He has also exhibited the said
dao as material ext. No. 1. In his cross examination this
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witness denied the suggestion that the said dao was brought
by him from the house of the appellant and that the said dao
did not belong to the appellant. He also denied the
suggestion that he obtained the signatures of the witness on
ext. 3, which was on blank paper.
None of the seizure list witnesses i.e. the PW-7 and
PW-8 supported the prosecution version that the seized dao
was recovered at the instance of the appellant.
In view of the forceful evidence given by PW-3, who
was an eye witness to the occurrence,, the failure of the
prosecution to prove the seizure of the incriminating
weapon is not fatal for the prosecution, inasmuch as, the
PW-3 forcefully stated that the appellant had assaulted the
deceased causing his death.
16. The medical evidence and the evidence given by the
PW-3 clearly indicate that the weapon used by the appellant
was a sharp cutting weapon. This medical opinion supports
the PW-3's evidence that the appellant had inflicted the
injuries with a meat dao i.e. sharp cutting weapon. It has
been noticed that no material contradiction or discrepancy
could be elicited, in respect of the PW-3 aforesaid, from the
cross-examination of the investigating officer.
17. From the above discussed evidence, it is found that
the said injuries were caused, by the appellant. There is
nothing on record to show that the appellant was either
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provoked or compelled to assault the deceased under any
compelling circumstances.
18. The facts and circumstances of this case, as revealed
from the evidence of prosecution witnesses, more
particularly the PW-3, do not indicate that the act
committed by the appellant, falls under any one of the
exceptions, mentioned in Section 300 IPC. Admittedly, as
revealed from the evidence, given by the prosecution
witnesses, more particularly the medical evidence of PW-4,
the death of the deceased was the result of culpable
homicide and PW-3 forcefully stated that the assault was
caused by the appellant.
19. The multiple injuries (ten in number), which are found
to be repeatedly inflicted on various parts of the body,
including the head, cutting brain part, clearly indicate that
the assailant had inflicted the injuries with an intention to
kill the deceased. There is no difficulty in understanding
that multiple injuries, caused by a sharp cutting weapon,
more particularly on the head, that too inuring the brain
part, is likely to cause death of a person.
Therefore, we have no hesitation in concluding that
the appellant had inflicted the blows with an intention to kill
the deceased or with the knowledge that the injuries,
inflicted by him, were likely to cause death.
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20. In view of the above, it is found that the appellant
committed the offence u/s. 302 IPC i.e. the murder of the
deceased. Therefore, in our considered opinion, the learned
Sessions Judge committed no error by convicting and
sentencing the appellant u/s. 302 IPC.
We find no merit in this appeal requiring interference.
Accordingly the impugned conviction and sentence
are upheld.
The appeal stands dismissed.
Return the LCR.
Before we part with this record, we acknowledge with
appreciation, the assistance rendered by Sri S. Medhi as
Amicus Curiae and direct that he be paid an amount of Rs.
5,000/- (Rupees five thousand) only, as his remuneration,
by the Assam State Legal Services Authority.
JUDGE. CHIEF JUSTICE.
As.
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IN THE GAUHATI HIGH COURT
(THE HGIH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL
PRADESH)
CRIMINAL APPEAL NO. 101(J)/ 2005
Shawan Kasta ....Petitioner/ Appellant.
Vs.
State of Assam .... Respondent.
PRESENT
HON'BLE THE CHIEF JUSTICE MR. A.K. GOEL
HON'BLE MR. JUSTICE C.R. SARMA.
For the Petitioner/ Appellant : Mr. P. Kataki, Amicus
Curiae.
For the Respondent : Mr. D. Das, Addl. Public
Prosecutor, Assam.
Date of hearing : 13.12.2011
Date of Judgment : 27.01.2012
JUDGMEMT AND ORDER (CAV)
C.R. Sarma, J.
1. The challenge in this appeal is to the judgment and
order, dated 15.03.2005, passed by the learned Addl.
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Sessions Judge No. 1, Tinsukia, in Sessions Case No. 34(T)
2004. By the impugned judgment and order, the learned
Sessions Judge, while convicting the appellant u/s. 302 IPC,
sentenced him to suffer rigorous imprisonment for life and
pay fine of Rs. 1,000/- in default, suffer simple
imprisonment for another period of two months.
2. We have heard Mr. P. Kataki, learned Amicus Curiae
and Mr. D. Das, learned Addl. P.P., Assam.
3. The prosecution case, in brief, as revealed during the
trial is as follows :-
On 24.09.2003, at about 8-30 a.m., the appellant being
armed with a knife assaulted Mr. Bhanu Dutta(hereinafter
called the deceased), by inflicting several cut injuries and
thereby caused his death. The occurrence took place in the
backyard of the house of the deceased. The wife of the
deceased, who was available in her house, at the relevant
time, saw the incident. After committing the said crime, the
appellant, with the incriminating weapon, appeared in the
police station and handed over the said knife to the Officer-
in-charge of the police station. Accordingly the accused
person was arrested and the knife, produced by him, was
seized vide seizure list (Ext. 2).
4. Mr. Mithu Dutta (PW-1), who is the brother of the
deceased, coming to know about the occurrence, proceeded
to the place of occurrence and met the appellant, on the
road, who was proceeding towards the police station. On
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being asked by the PW-1, the appellant told him that he had
cut the deceased. PW-4, after his arrival in the premises of
the deceased, found the dead body lying with injuries on the
neck, leg, arms etc. Accordingly he lodged the FIR(Ext. 1)
with the police. On receipt of the said FIR police registered
a case u/s. 302 IPC and lunched investigation into the
matter.
5. During the course of investigation, police visited the
place of occurrence and prepared inquest report (Ext. 2) of
the dead body and forwarded the same to the Assam
Medical College Hospital for post mortem examination.
After collecting the post mortem report and upon
completion of the investigation, the investigating officer
submitted charge-sheet, u/s. 302 IPC, against the appellant.
The offence u/s. 302 IPC, being exclusively triable by Court
of Sessions, the learned Chief Judicial Magistrate,
committed the case and forwarded the appellant to the Court
of sessions to stand trial.
6. The learned Sessions Judge framed charge u/s. 302
IPC against the appellant, to which he pleaded not guilty.
The appellant claimed to be tried.
In order to substantiate the allegations, brought
against the appellant, the prosecution examined as many as
8 witnesses including the medical officer (PW-6), who
conducted post moretm examination, and the investigating
police officer (PW-8). At the close of the evidence for the
prosecution, the accused person was examined u/s. 313
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Cr.P.C. He denied the allegations, brought against him. In
his statement, made u/s. 313 Cr.P.C., the appellant stated
that he was a labour by occupation and that he was falsely
implicated in this case.
7. Mr. P. Kataki, learned Amicus Curiae, appearing for
the appellant, referring to the evidence, on record, has
submitted that there is no direct evidence against the
appellant, except the evidence of PW-4, who happens to be
interested witness, being the wife of the deceased. It is also
submitted that the evidence of the said interested witness ,
who had a dispute with the appellant regarding payment of
his remuneration can not be accepted without corroborating
from independent evidence. The learned defence counsel
has also submitted that the extra judicial confession, alleged
to be made before PW-1 and PW-2, who are the brothers of
the deceased, cannot be acted upon, on the ground that the
said witnesses are also interested witness. In view of the
above, learned Amicus Curiae has submitted that the
prosecution failed to establish the charge against the
appellant, beyond all reasonable doubt and therefore, the
learned trial judge committed error by recording the
impugned conviction and the sentence. In view of the
above, the learned Amicus Curiae has submitted that the
appellant is entitled to be acquitted on benefit of doubt.
8. Mr. D. Das, learned Addl. P.P., Assam, refuting the
said argument, has submitted that as the occurrence took
place in the premises of the deceased in presence of PW-4
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i.e. the wife of the deceased. She was a natural witness to
the occurrence. It is also submitted that it is very difficult to
procure the attendance of witnesses from the
neighbourhood, inasmuch as, nobody except the family
members of the deceased/ victim would come forward to
stand as witness. Therefore, the victim's / deceased's
relative, if found trustworthy, can not be discarded on the
ground that such person is an interested witness. The
learned Addl. P.P., supporting the impugned conviction and
sentence, has submitted that the evidence of PW-4, who was
subjected to cross-examine by the defence, remained un-
demolished and as such her relationship with the deceased
cannot be a reasonable ground to disbelieve her forceful
evidence. Referring to the extra-judicial confession, made
before PW-1 and PW-2, the learned Amicus Curiae has
submitted that though both the said witnesses were duly
cross-examined, no material contradiction could be elicited
to demolish their evidence, with regard to the extra-judicial
confession. Therefore, the learned Addl. P.P., Assam has
submitted that both PW-1 and 2 being reliable and
trustworthy witness their evidence, with regard to extra-
judicial confession, is acceptable and as such the learned
Sessions Judge committed no error, by convicting the
appellant, on the basis of the said extra-judicial confession
as well as the evidence of PW-4 aforesaid. The learned
Amicus Curiae has also submitted that, in view of the
evidence, surfacing from the record, the impugned
judgment and order needs no interference.
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9. In order to appreciate the counter arguments,
advanced by the learned counsel appearing for both the
parties and to examine the correctness of the impugned
judgment and order, we feel it appropriate to, briefly, scan
the evidence on record.
10. Smti. Aruna Dutta, (PW-4), wife of the deceased is
the star witness in this case. From the evidence of the said
witness it is found that at the time of the occurrence, which
took place in her premises, she, was present in her house
and saw the occurrence herself. From her evidence it was
found that earlier, the appellant used to render services in
her house (i.e. deceased's) by performing duty of escorting
deceased's children to and from their school and in lieu of
said service, the appellant was provided free food.
However, though the appellant had asked for payment of
money, for rendering the said service, PW-4 and her
deceased husband refused to pay the same. She also stated
that subsequently, an amount of Rs. 10,000/- was missing
from the house of the deceased and thereafter the accused
stopped visiting their house.
According to PW-4, after hearing the alarm raised by
her husband, she came out from her house and saw the
accused, being armed with a dao assaulted her husband. She
clearly stated that the accused had inflicted several blows on
her husband, despite request, made by her, not to inflict
injuries on her husband. PW-4 further stated that her
husband was chased and assaulted by the appellant as a
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result of which he died. This witness was cross-examined
on behalf of the defence but no contradiction could be
elicited to render her evidence disbelievable. Therefore, her
uncontroverted evidence, regarding the assault, caused by
the appellant, leading to the death of the deceased, remained
un-demolished. Though PW-4 was a close relative of the
deceased, such relationship, under the prevailing facts and
circumstances, cannot be sufficient to negate her evidence.
There can be no dispute, in the attending facts and
circumstances of the case, that PW-4, who was in her house,
at the time of the occurrence, was an eye witness to the
occurrence and she was the most natural witness. Law is
well settled that unless contrary is proved, the close
relationship of the witnesses with the victim of crime
cannot be ground to reject the reliable and trustworthy
evidence given by such witness.
11. In the present case also, as discussed above, we fail to
find anything to hold that PW-4 had any intention or reason
to falsely implicate the appellant, thereby allowing the real
culprit, responsible for the death of her husband, to escape
punishment. As revealed from the evidence of PW-4, non
payment of money towards the services, rendered by the
appellant might be the cause, which prompted the appellant
to commit such heinous crime. Therefore, We find no
reason to disbelieve her evidence. The said uncontroverted
evidence of PW-4 inspire sufficient confidence to believe
that none, other than the appellant, had caused the injuries,
resulting the death of the deceased.
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12. PW-2, the medical officer who performed the post
mortem examination, on the dead body, on the date of
occurrence itself found the following injuries :-
1. One incised wound measuring 12x 2 cm maxilla
bone incised, present on left cheek.
2. One incised wound measuring 5x2 cm left
maxilla bone incised, present on 1 cm below the
injury no. 1 on left cheek,
3. One incised wound measuring 8x2 cm mandible
bone incised, present on left side of the chin.
4. One incised wound measuring 22x5 cm present
on right side of the chin extended laterally and
on back of the neck over the angle of the
mandible which incised the 3rd cervical
vertebrae and spinal cord,
5. One vertically placed incised wound measuring
15x3 cm present on right cheek and right side of
the forehead which incised the frontal bone and
right maxilla bone,
6. One incised wound measuring 7x2 cm brain
deep present right frontal area of the scalp.
7. One incised wound measuring 5x2 cm muscle
deep present on left chest wall,
8. One incised wound measuring 7x2 cm muscle
deep present on left side of the chest, 2 cm
below the injury no. 7.
9. One incised would measuring 15x2 cm on
epigastric area of the abdomen, which is found
muscle deep,
10. One incised wound present on distal third of
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right forearm, only tag of skin present
on flexor side,
11. One incised wound measuring 7x2 cm muscle
deep present on upper third of right forearm,
12. One incised wound measuring 5x2 cm muscle
deep present on right elbow,
13. One incised wound measuring 6x2 cm incised
the tibia, present on medial side of middle part
of left leg,
14. One incised wound measuring 6x2 cm present
on left forearm in distal third which incised the
both radius and ulna bone,
15. One incised wound measuring 10x3 cm present
on left elbow which incised the lower part of
left humorous,
16. One stab wound measuring 3x1 cm on right
lateral side of the abdomen, which is
abdominal cavity deep,
17. One stab wound measuring 3x1 cm on right
lateral side of the abdomen, 1cm below the
injury no. 16 which is abdominal cavity deep,
18. One stab wound measuring 3x2 cm muscle
deep, present on back of the right shoulder,
19. One stab wound measuring 3x2 cm muscle
deep, present on middle part of right side of
the back of the chest,
20. One incised wound horizontally placed
measuring 22x3 cm present on left side of
back of the chest, which incised the left
scapula.
21. One incised wound measuring 7x2 cm , scalp
layer deep, present on occipital area of the
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calp,
22. One incised wound measuring 6x2 cm scalp
layer deep, present on left temporal area of
the scalp, which incised the left ear at root.
13. The medical officer opined that the death of the
deceased was caused due to shock and haemorrhage,
resulting from the injuries, sustained by the deceased.
According to the said medical officer the injuries were anti
mortem in nature and caused by sharp cutting weapon and
homicidal in nature.
He also opined that the injury nos. 1,2,3,4,5,6,8 & 10
were individually sufficient to cause death of a person in the
ordinary course of nature. He has exhibited the post mortem
report as Ext. 4 and his signature as Ext. 4(1). The inquest
report (Ext. 3) prepared immediately, after the occurrence
also suggest existence of multiple injuries, caused by sharp
cutting weapon. Considering the said inquest report and the
post mortem report it is found that the multiple injuries
were caused by sharp cutting weapon ie. a weapon like a
dao.
14. The investigating officer (PW-8), in his evidence,
stated that the appellant had appeared in the police station
with a dao and confessed that he had killed the deceased.
According to the investigating officer he had seized the
said dao vide Ext. No. 2. The investigating officer was also
cross-examined on behalf of the defence. He denied the
24
suggestion, put to him, that the accused did not appear
before the police with the dao in his hand.
15. Both PW-1 and PW-2 stated that they saw the accused
proceeding towards the police station, with a dao in his
hand. The evidence of PW-1, regarding availability of a dao
in the hand of the appellant, remained un-controverted.
16. PW-5, who was an independent witness stated that, on
being dictated by the PW-1, he had written the FIR. He
further stated that he saw the appellant, entering the police
station, with a dao in his hand. According to this witness he
also followed the appellant to the police station and saw the
later delivering the dao to the police. He has exhibited the
seizure list, by which the dao was seized, as Ext. No. 2. He
denied the suggestion that he did not see the appellant going
to the police station with a dao.
The said evidence of PW-1 and PW-5 corroborates the
evidence of PW-8 i.e. the Investigating Officer regarding
surrender made by the appellant with the incriminating
weapon, This piece of evidence supports the prosecution
version that the appellant committed the offence.
17. PW-7, another independent witness, stated that, on the
fateful day, at about 8 to 9 a.m. i.e. immediately after the
occurrence, he came to know from others that the deceased
was killed and that the appellant had appeared in the police
station. Coming to know about the incident, this witness
also proceeded to police station and he saw the accused
25
therein. According to this witness police had seized the dao
from the accused vide Ext. No. 2. He exhibited his signature
in the seizure list as Ext. 2(3). In his cross-examination this
witness denied the suggestion that police did not seize the
dao or knife from the accused, in his presence.
18. From the above stated evidence, rendered by the
prosecution witnesses, it is found that the accused person,
himself, appeared before the police station and handed over
the weapon of assault, which was seized vide Ext. No. 2.
Though the suggestions, were put to the said witnesses
denying their evidence regarding appearance of the
appellant and handing over of the dao in the police station,
they denied the said suggestion.
19. The said evidence regarding appearance of the
accused person and production of the dao aforesaid,
remained un-demolished. Therefore, we find sufficient
corroboration in the evidence of the said witnesses to
believe that the appellant, immediately, after committing the
offence appeared in the police station and handed over the
weapon i.e. the dao. This circumstantial evidence lends
sufficient support in favour of the evidence of PW-4 and
inspire confidence to believe that the appellant had
committed the alleged offence of causing death of the
deceased.
20. Further, both PW-1 and PW-2 clearly stated that the
appellant had made extra-judicial confession, by saying that
26
he had cut the deceased. The said evidence of the PW-1 and
PW-2 regarding extra-judicial confession remained
unchallenged and uncontroverted. The defence even failed
to put any suggestion, denying the evidence of the said
witnesses regarding confession. In view of the above, there
is nothing on record, to show that PW-1 and PW-2 had any
reason or grudge to falsely implicate the appellant.
Therefore, the uncontroverted evidence, rendered by PW-1
and PW-2 sufficiently indicates that the appellant had made
extra-judicial confession. There is no difficulty in relying on
such extra judicial confession, if the person, before whom
the same is made, is found to be reliable and trustworthy.
There is no evidence to show that PW-1 and PW-2 are not
reliable and trustworthy or that they had any reason to
falsely implicate the appellant. In view of the above, the
extra judicial confession, made before PW-1 and PW-2,
coupled with the forceful evidence given by the eye witness
i.e. PW-4, conclusively lead to hold that the appellant had
assaulted the deceased .
The multiple injuries, inflicted with a sharp cutting
weapon, on various vital parts of the body indicates, beyond
doubt, that the appellant caused the injuries with an
intention to kill the deceased and also with the knowledge
that such injuries are likely to cause death.
21. In the light of the above discussed evidence, we find
that the prosecution could establish beyond all reasonable
doubt, by adducing cogent and reliable evidence that the
27
appellant had brutally assaulted the deceased by inflicting
fatal injuries on various vital parts of his body by means of
a sharp cutting weapon and thereby intentionally caused his
death. Therefore, in our considered opinion the appellant
committed offence u/s. 302 IPC.
22. In view of the above, we unhesitatingly conclude that
the learned Sessions Judge committed no error by
convicting the appellant u/s. 302 IPC and sentencing him as
indicated above. Therefore, we find no merit in this appeal
requiring our interference with the impugned conviction
and the sentence. Consequently, the appeal fails.
23. Return the LCR.
We appreciate the assistance rendered by the Mr. P.
Kataki, learned Amicus Curiae, and direct that an amount of
Rs. 3,500/-be paid to Mr. Kataki, as his remuneration, by
the State legal services authority.
24. 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 :
28
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 Tinsukia
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.
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.
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. For the purpose of providing financial assistance
towards rehabilitation of the victim of his/ her
dependant (s), in appropriate case, and for proper
implementation of such scheme, as provided by
29
Section 357-A, Cr.P.C., it is necessary to ascertain
the dependency factor and the financial status of
such victim, his/ her dependents, and of the
accused person(s), as the case may be. Therefore,
we direct that the Judicial Officers, working under,
jurisdiction of this Court,. during the course of trial,
shall ascertain (i) the financial status of the victim
or his/ her dependent (s), if any, (ii) whether such
persons need rehabilitation, as the case may be and
also the financial status of the accused persons (s).
The said findings of the enquiry shall be reflected
in the judgment.
Registry shall furnish copy of this judgment to all the
Judicial Officers under the jurisdiction of this Court.
25. Let a copy of this judgment and order be furnished to
Mr. Z. Kamar, learned Public Prosecutor, and the Chief
Secretary to the Government of Assam, for doing the
needful.
JUDGE. CHIEF JUSTICE
As.
30
IN THE GAUHATI HIGH COURT
(THE HGIH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL
PRADESH)
CRIMINAL APPEAL NO. 37(J)/ 06
Ram Prasad Koya ....Petitioner/ Appellant.
Vs.
State of Assam .... Respondent.
PRESENT
HON'BLE THE CHIEF JUSTICE
AND
HON'BLE MR. JUSTICE C.R. SARMA.
For the Petitioner/ Appellant : Mr. M.K. Sarma,
Amicus Curiae.
For the Respondent : Mr. D. Das, Addl. Public
Prosecutor, Assam.
Date of hearing : 3.1.2012
Date of Judgment :
JUDGMEMT AND ORDER (CAV)
C.R. Sarma, J.
This appeal is directed against the judgment and order
dated 27.02.2006 passed by the learned Sessions Judge,
Tinsukia Sessions Case No. 81/054. By the impugned
judgment and order the learned Sessions Judge convicted
31
the appellant u/s. 302 IPC and sentenced him to suffer
rigorous imprisonment for life and pay fine of Rs. 1,000/- in
default to suffer rigorous imprisonment for another period
of 3 months for his conviction u/s. 302 IPC.
Aggrieved by the said conviction and sentence the
convict i.e. the present appellant has come up with this
appeal.
We have heard Mr. M.K. Sarma, learned Amicus
Curiae appearing for the appellant and Mr. D. Das, learned
Addl. Public Prosecutor.
The prosecution case in brief is that on 18.02.2004 a
function was organized in the house of Sri Pradip Boraik,
who is the father in law of the appellant and the deceased
and his son in law i.e. the appellant were invited to attend
the said function organized in connection with celebration
of the birth day of grand daughter of the deceased. After
departure of all other guest the appellant and the deceased
stayed back in the father in law's house. When the deceased
and the other members of the family were sitting in the
Veranda the appellant who was in his room called the
deceased and accordingly the deceased attended the
appellant. Thereafter hearing the cry raised by the deceased
her mother i.e. PW-4 rush to the room and found that the
deceased was lying with a cut injury on her neck. The said
mother in law saw the appellant holding a dao in his hand.
After committing the said crime the appellant fled away the
32
house of his father in law. The deceased was immediately
taken to the hospital wherein she succumb to her injuries.
The father of the deceased (PW-1) as informant lodged an
FIR (Ext. 4) with the police. On receipt of the FIR police
registered a case u/s. 302 IPC and launched investigation
into the matter. Subsequently on 29.02.2004, the accused
appellant surrendered before the police station with a dao.
Accordingly the said dao was seized vide seizure list Ext. 2
and the accused was arrested.
The investigating officer, during investigation, visited
the place of occurrence, requisitioned the service of the
Executive Magistrate for conducting inquest in respect of
the dead body, sent the dead body for post mortem
examination, prepared sketch map and recorded the
statement of the witnesses. At the close of the investigation
police submitted charge-sheet u/s. 302 IPC.
The offence being exclusively triable by the Court of
Sessions, the case was committed and the learned Sessions
Judge framed charge u/s. 302 IPC to which the appellant
pleaded not guilty and claimed to be tried.
The prosecution examined as many as 11 witnesses
including the medical officer (PW-8) who performed the
post mortem examination, the investigating officer (PW-11)
at the close of the examination of prosecution witnesses the
accused person was examined u/s. 313 Cr.P.C. He denied
allegation brought against him and declined to adduce his
33
evidence. In his statement given u/s. 313 Cr.P.C. the
appellant aditted that on 18.02.2004 a feast was organized at
the house of his father in law PW-1 and that he along with
the deceased had attended the same. However, he denied to
have killed his wife. Admitting the death of his wife and the
fact that she had sustained cut injury on her neck, the
appellant, in his statement u/s. 313 Cr.P.C. stated that as he
was suffering from Tuberculosis he felt uncomfortable after
seeing the blood stained body of his wife and as such he left
the place. Regarding allegation that he had surrendered
before the police with a dao on 29.02.04, the appellant in
his statement u/s. 313 Cr.P.C. stated that on the said date he
went to the police station carrying a dao with him to lodge
an FIR in connection with the murder of his wife. The
learned Trial Judge considering the entire evidence on
record relying on the evidence of PW-4 who was an eye
witness to the occurrence and the circumstances that the
appellant along with the deceased had attended the function
organized in his father in law's house, that the appellant was
present in the place of occurrence till his wife was
assaulted, that the PW-4 saw the accused holding a dao
standing near the accused, that the appellant absconded after
the incident, that he had surrendered before the police with
a dao after 10 days, that the appellant did not take any steps
to apprehend the culprit, came to the finding that none but
the appellant caused the death of the deceased by inflected
cut blow on her neck and thus committed the offence u/s.
302 IPC.
34
Mr. M.K. Sarma, learned Amicus Curiae appearing
for the appellant has submitted that none of the witnesses
saw the appellant inflicting the cut injury on her neck and
that there is no corroboration in the evidence of PW-4 that
she had seen the deceased holding the dao near the dead
body of the deceased.
In view of the above submission the learned Amicus
Curiae has contended that the prosecution fail to prove the
case against the appellant by adducing sufficient cogent and
reliable evidence and as such the conviction and the
sentence recorded against him cannot stand in the eye of
law. Mr. D. Das, learned Addl. Public Prosecutor taking this
court through the evidence more particularly the evidence
of PW-1 i.e. the father in law of the appellant and the
statement of the accused person made u/s. 313 Cr.P.C. has
submitted that the PW-4 after hearing the alarm raised by
the deceased rush to the place of occurrence and found the
deceased lying on the ground in injured condition and the
appellant holding a dao near the deceased. It is submitted
that the evidence of PW-4 that she saw the deceased
holding a dao and leaving the place thereafter has been duly
corroborated by the PW-1. The learned Addl. Public
Prosecutor has also contended that the admission made by
the appellant that he had seen his wife lying in injured
condition in a pool of blood and the fact that he had
surrendered before the police with a dao sufficiently
fortified the prosecution version. The learned Addl. Public
Prosecutor has also submitted that the explanation given by
35
the appellant that feeling uncomfortable after seeing the
injured body of his wife he had left the place, is not
acceptable inasmuch as no husband, unless involved with
the offence would leave his injured wife without taking any
step to provide her medical treatment and apprehending the
actual culprit. It is submitted that the fact that the appellant
had appeared before the police station with a dao supports
the evidence of PW-1 and 4 that the appellant had caused
the death of the deceased.
Having heard the learned counsel appearing for both
the parties and carefully perusing the evidence on record we
find that on the fateful date of occurrence both the appellant
and deceased attended the function organized in the house
of his father in law and they had stayed back for the night
halt. As revealed from the evidence of the prosecution
witnesses , evidence rendered by the p4rosecution witnesses
and the statement made by the appellant u/s. 313 Cr.P.C. the
deceased sustained injury on her neck in the night of
occurrence in her parents house. The medical officer (PW-
8) who performed autopsy of the dead body found the
following injury :-
(1) One incised wound measuring 10 cm x 3 cm on
upper part of the lateral side of the neck which
had incised the third cervical vertebrae and
spinal cord. No other external wound was
noticed.
The said witness opined that the deceased died due to shock
and haemorrhage as a result of injuries aforesaid. According
36
to the medical officer the injury was ante mortem in nature
and might have been caused by heavy sharp cutting weapon
and that the injury was homicidal in nature. The said
evidence given by the medical officer remained
uncontroverted. In view of the above it has been clearly
established that the deceased died due to the incise injury
sustained by her on her neck and the said injury was caused
by a sharp cutting heavy weapon. In the light of the it has
been established that the death of the deceased was an act of
the culpable homicide. Now the question is as to whether
the appellant had committed the said culpable homicide.
Admittedly both the appellant and the deceased
attended the function organized in the house of the PW-1
and they stayed back in his (PW-1) house for the night halt.
From the evidence of PW-1 it is found that he after hearing
a cry rush to the place of incident and found his daughter
i.e. the deceased lying with cut wound on her neck, he saw
the appellant leaving the place of occurrence after
committing the offence. Cross-examination of this witness
was declined by the defence. Therefore his evidence that he
has seen the appellant leaving the place after committing the
crime remained un-demolished. PW-4, who is the mother
in law of the appellant, in tune of the evidence of her
husband i.e. PW-1 stated that at about mid night the
appellant had called his wife i.e. the deceased to his room
and immediately after she had gone to her husband, this
witness heard her cry. Accordingly following the said cry
she rushed to the room and found the deceased lying on the
37
ground with a cut injury on her neck and the appellant
holding a dao in his hand. She stated that though she tried
to over power the accused, the later pushed her back and
fled the place. She denied the suggestion that she had
falsely implicated the appellant. Carefully perusing the
evidence of the said two witnesses i.e. PW- 1 and PW-4,
who were the parents in law of the appellant, we find that
both of them categorically stated that the accused was found
near the injured body of the deceased and the appellant had
left the place immediately after the incident. PW-4 clearly
stated that she had seen the appellant holding a dao near the
dead body and he left the place after pushing her back. The
said evidence of the PW-1 and PW-4 remained
unchallenged. We find no reason to believe that the said
parents in law had any reason or grudge to falsely implicate
their son in law leaving the real culprit. Therefore, we find
sufficient force in their evidence to believe that the
appellant had coused the injury sustained by the deceased.
The explanation given by the appellant u/s. 313 Cr.P.C. that
he feeling uncomfortable after seeing the injured body of
his wife had left the place is quite absurd. It is not
believable that the husband would leave his injured wife in
such a precarious situation without taking any step to
provide her medical help and also to apprehend the real
culprit. This conduct on the part of the appellant goes
against him. That apart it has also been aditted by the
appellant that he had appeared before the police with a dao
in his hand. Of course he stated that he went to police
station to lodge an FIR. It is found that the appellant
38
appeared in the police station on 29.02.2004 i.e. after about
11 days. It is not believable that a husband, who saw the
injured body of his wife on the date of occurrence would
lodge an FIR after 11 days that too by holding a dao in his
hand. Therefore, the prosecution version that the appellant
had appeared before the police with the incriminating
weapon is acceptable. The circumstantial evidence surfaced
from the evidence of the prosecution witnesses aforesaid,
that both the appellant and deceased stayed back in the
house of his father in law on the relevant night, that the
appellant had seen the injured body of the deceased, that the
appellant was present in the place of occurrence till the
deceased sustained fatal injury, that the appellant was seen
(by PW-4) holding a dao and standing near the deceased,
that the appellant left the place of occurrence after pushing
the PW-4, that the appellant absconded from the scene for
over 11 days.
That the appellant surrendered before the police with a
dao after 11 days, that the appellant immediately after
seeing his injured wife did not take any steps to provide
medical help and apprehend the culprit, if any clearly lead
to the conclusion that the appellant had caused the fatal
injury to his wife. The above events of circumstantial
evidence form a complete chain conclusively leading to the
conclusion that non except the appellant had caused the
death of the deceased. Under the facts and circumstances of
this case coupled with the evidence surfaced from the
39
prosecution witnesses the plea of innocence taken by the
appellant is inconsistence.
From the evidence on record it has been established
that the appellant had called his wife and immediately after
she sustained the injury which lead to her death. As the
deceased sustained the injury in presence of the appellant,
under the provision of section 106 of the Evidence Act it
was the burden of the appellant to explain under what
circumstances she had sustained the injury aforesaid but
the appellant failed to discharge his said burden. This
failure goes against the appellant and this failure on the part
of the appellant support the prosecution version that it was
none but the appellant who caused the death of the
deceased.
In view of the above discussed evidence, considering
the entire aspect of the matter we are of the unhesitating
opinion that the prosecution could successfully prove
beyond all reasonable doubt that the appellant had caused
the death of the deceased. There is nothing on record to
show that the said act was done by the appellant due to any
provocation caused to him or in a heat of passion in
connection with any quarrel. The nature of the injury
sustained on the vital part of the body (neck) on which the
injury was inflicted clearly indicate that the appellant had
inflicted the said injury with an intention to cause death of
the victim, in fact the deceased died due to the cut injury
inflicted on her neck. The said act committed by the
40
appellant does not fall under any of the exceptions provided
by sections 300 IPC. Therefore, the culpable homicide
committed by the appellant was a murder in the eye of law.
In the light of the above, in our considered opinion the
learned trial Judge rightly convicted the appellant u/s. 302
IPC. Accordingly we find no merit in this appeal requiring
any interference with the impugned conviction and
sentence. Consequently, the appeal fails.
Before we part with this record, we appreciate the
assistance rendered by Mr. S. Banik, learned counsel as
Amicus Curiae and we direct that an amount of Rs. 3,500/-
be paid to Mr. Bank, learned Amicus Curiae by the State
Legal Services Authority as his remuneration.
Return the LCR forthwith.
JUDGE. CHIEF JUSTICE
As.
41
IN THE GAUHATI HIGH COURT
(THE HGIH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL
PRADESH)
CRIMINAL APPEAL NO. 178(J)/ 07
Santosh Sahu ....Petitioner/ Appellant.
Vs.
State of Assam .... Respondent.
PRESENT
HON'BLE THE CHIEF JUSTICE
AND
HON'BLE MR. JUSTICE C.R. SARMA.
For the Petitioner/ Appellant : Mr. Subhojit Banik,
Amicus Curiae.
For the Respondent : Mr. D. Das, Addl. Public
Prosecutor, Assam.
42
Date of hearing : 3.1.2012
Date of Judgment :
JUDGMEMT AND ORDER (CAV)
C.R. Sarma, J.
This appeal is directed against the judgment and order
dated 29.09.2007 passed by the learned Addl. Sessions
Judge, Nagaon in Sessions Case No. 239/05. By the
impugned judgment and order the learned Sessions Judge
convicted the appellant u/s. 302 IPC and sentenced him to
suffer rigorous imprisonment for life and pay fine of Rs.
5,000/- in default to suffer rigorous imprisonment for
another period of 6 months for his conviction u/s. 302 IPC.
We have heard Mr. S. Banik, learned Amucus Curiae
appearing for the appellant and Mr. D. Das, learned Addl.
Public Prosecutor, Assam appearing for the State.
The prosecution case in brief is that on the previous
night of the occurrence the appellant left his house after
picking up a quarrel with his wife. They were married
about one year ago. The appellant used to live along with
his wife in his father-in-law's house. On the date of
occurrence i.e. on 30.01.2005 at about 8 p.m. the accused
returned home and called the deceased to come out. On
being so called, the father-in-law (PW 2) of the appellant
came out and he was assaulted by the appellant. At that time
the deceased, who was pregnant for 7 months came out and
she was hit on her abdomen by the appellant and fled the
43
place. On being assaulted by the appellant, the deceased
died while taking steps to take her to the hospital.
Shri Dhiraj Pradhan (PW-1), brother of the deceased
lodged an FIR (Ext. 1) with the Police. On receipt of the
said FIR, police visited the place of occurrence, prepared
sketch map, conducted inquest in respect of the dead body
and sent the same for post mortem examination. During the
course of investigation police arrested the appellant and
examined witnesses. At the close of the investigation police
submitted charge-sheet (ext.1) u/s. 302 IPC. The offence
being exclusively triable by the Court of Sessions the case
was committee to the Court of Sessions and the learned
Sessions Judge framed charge against the appellant u./s. 302
IPC to which the appellant pleaded not guilty and claimed
to be tried. In order to prove its case the prosecution has
examined as many as 6 witnesses including the medical
officer (PW-5) and the Investigating Officer (PW-6). At the
close of the examination of prosecution witnesses, the
accused persons was examined u/s. 313 Cr.P.C.. He denied
the allegation brought against him and declined to adduce
defence evidence.
Mr. S. Banik, learned Amicus Curiae appearing for
the appellant submitted that there is no sufficient reliable
and cogent evidence against the appellant, and as such the
learned Sessions Judge committed error by recording
conviction u/s. 302 IPC. It is also submitted that there is
nothing on record to show that the appellant had intention to
cause the death of the deceased and as such the conviction
u/s. 302 IPC cannot be maintained.
44
Supporting the conviction and sentence Mr. D. Das,
learned Addl. Public Prosecutor has submitted that the PW-
2 i.e. the father -in-law of the deceased was the eye witness
to the occurrence and he clearly stated that the appellant had
assaulted the deceased causing her death. The learned Addl.
Public Prosecutor has submitted that no contradiction or
discrepancy could be elicited to disbelieve the forceful
evidence given by the said PW-2 and as such there is
substantive evidence to show that the appellant had caused
the death of the deceased. It is also submitted that as the
deceased was pregnant for 7 months at the relevant time the
blow given by the appellant on the abdomen was sufficient
to cause her death and as such the learned Sessions Judge
committed no error by recording conviction u/s. 302 IPC.
Having heard the learned counsel appearing for both
the parties and considering the evidence on record , we find
that the prosecution case is based on the evidence of PW-2
who was an eye witness to the occurrence. All the non-
official prosecution witnesses i.e. PW-1 to 4 clearly stated
that the occurrence took place on the night of 3.1.2005 and
the deceased died in connection with the said occurrence.
The FIR being lodged, the PW-6 who took up the
investigation visited the place of occurrence and found the
dead body of the deceased on her bed and that the inquest
was done by the Executive Magistrate. He also stated that
the dead body was sent for post mortem examination.
The medical officer (PW-5) who performed the
inquest in respect of the dead body found the following
injuries :-
45
1. Swelling of vault of skull over the left parietal region
size 3"x 3".
2. Blood clots are seen under the meninges and brain
tissues in the left parietal lobe.
3. Abdomen- (Disection)
(i) Uterus is twenty week pregnant. On opening of
uterus an intra uterine fetal death fetus is found
which is of 20 week size and female sex.
Abdominal wall, peritoneum, mouth
esophagous, stomach are all congested.
He opined that the injuries were ante mortem and the death
was caused due to shock and haemorrhage as a result of the
injuries sustained.
In view of the evidence there is not dispute that the
deceased died due to injuries sustained by her . The medical
evidence that the fetus (20 weeks size) was found dead
supports the prosecution version that the deceased was
pregnant at the relevant tie and that she sustained injury on
her abdomen. It is of common knowledge that any blow
given on the abdomen of a pregnant lady may cause serious
effect on her life. The PW-2 father -in-law of the appellant
who is the father of the deceased clearly stated that the
appellant had assaulted the deceased on her abdomen as a
result of which she died. This evidence of the PW-2, who
was duly cross-examined on behalf of the appellant,
remained un-demolished. There is nothing on record to
46
show that the appellant who was the father-in-law of the
appellant had any interest or grudge to falsely implicate his
son-in-law leaving the actual culprit. Therefore, we find no
difficulty to accept the evidence given by the PW-2. In view
of the above, it has been established that the appellant had
caused the death of the deceased by assaulting her on her
abdomen. The medical evidence (evidence of PW-5) reveals
that there was swelling of vault of skull and blood clots
under the meninges and brain tissues in the left parietal lobe
of the deceased. The said swelling and the blood clots might
have been caused death due to falling of the deceased on
being hit by the appellant. As the fetus of the deceased who
was pregnant of 20 weeks died due to the assault caused by
the appellant. The impact of the blow given by him can be
understood to be very serious and grave.
In view of the above, we find that the appellant caused
the death of the deceased by assaulting her on her abdomen.
There is nothing on record to show that the appellant was
provoked by the deceased in any manner or that he had hit
her in a heat of passion due to sudden quarrel. From the
evidence of PW-2 it has been revealed that on the previous
night the appellant had picked up quarrel and he left the
house. He hit the appellant on the next evening after
returning home and calling her out therefrom. The said facts
and circumstance and the part of the body in which the fatal
blow was inflicted safely lead the conclusion that the
appellant had caused the assault with the intention of
causing the death of the deceased. As the circumstance in
which the offence was committed does not fall under any of
47
the exceptions prescribed by section 300 IPC, we have no
hesitation in holding that the accused had committed the
offence of murder as defined by section 300 IPC. Therefore,
in our considered opinion the learned Trial Judge
committed no error by convicting and sentencing the
appellant u/s. 302 IPC.
Accordingly we do not find sufficient merit in this
appeal requiring interference of the impugned conviction
and sentence. Hence, the conviction and sentence aforesaid
are upheld and the appeal is dismissed.
Before we part with this record, we appreciate the
assistance rendered by Mr. S. Banik, learned counsel as
Amicus Curiae and we direct that an amount of Rs. 3,500/-
be paid to Mr. Bank, learned Amicus Curiae by the State
Legal Services Authority as his remuneration.
Return the LCR forthwith.
JUDGE. CHIEF JUSTICE
As.
48
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND,
MEGHALAYA, MANIPUR, TRIPURA, MIZORAM
AND ARUNACHAL PRADESH)
CAV JUDGMENT
IN CRIMINAL APPEAL NO. 52(J) of 2007 Bhabani Gogoi ....Petitioner/ Appellant.
Vs. The State of Assam .... Respondent.
PRESENT HON'BLE THE CHIEF JUSTICE MR. A.K. GOEL HON'BLE MR. JUSTICE C.R. SARMA.
Date of hearing : 13.12.2011 Date of Judgment & Order : ......./....../.2012 For consideration of Hon'ble the Chief Justice.
I agree/ I disagree.
JUDGE CHIEF JUSTICE 49 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) CAV JUDGMENT IN CRIMINAL APPEAL NO. 101(J) of 2005 Shawan Kasta ....Petitioner/ Appellant.
Vs. State of Assam .... Respondent.
PRESENT HON'BLE THE CHIEF JUSTICE MR. A.K. GOEL HON'BLE MR. JUSTICE C.R. SARMA.
Date of hearing : 13.12.2011 Date of Judgment & Order : ......./.......2012 FR / NFR JUDGE CHIEF JUSTICE 50 CRIMINAL APPEAL NO. 37(J)/ 06 (C.A.V.) PRESENT HON'BLE THE CHIEF JUSTICE AND HON'BLE MR. JUSTICE C.R. SARMA.
- For perusal and signature.
JUDGE CHIEF JUSTICE FR/ NFR As 51 52
Dy.Registrat (Protocol) As directed I am to inform you that His Lordship Hon'ble Mr. Justice C.R. Sarma accompanied by His Lordship's one Private Secretary, namely Sri Atul Chandra Sarma, is leaving for Agartala on 29.01.2012 in connection with Circuit Bench at Agartala commencing from 30.01.2012.
You are, therefore, requested to arrange two Tickets, one, for his Lordship and the other is for the Private Secretary as mentioned above.
Further, necessary arrangement for escort, accommodation etc. may kindly be made.
PS attached to Hon'ble.Sarma, J. Gauhati High Court, Guwahati.
.
DY. REGISTRAR (I.M.) 53 As directed by His Lordship Hon'ble Mr. Justice C.R. Sarma, I am to proceed to Agartala along with His Lordship for attending the Circuit Bench from 30.01.2012 for one week.
Therefore, necessary proceed order may kindly be issued.
PS attached to Hon'ble.Sarma, J. Gauhati High Court, Guwahati.
.
.
54