Gauhati High Court
Jonas Bhodra vs The State Of Assam on 24 October, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRIMINAL APPEAL (J) NO. 116 OF 2016
Sri Jonas Bhodra ... Appellant
-Versus-
The State of Assam ... Respondent
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA For the appellant :Mrs. P. Baruah Bordoloi, Advocate, Amicus Curie.
For the respondent :Mr. Pranjit Singh Lahkar, Advocate, A.P.P.
Date of Hearing :10.10.2017.
Date of Judgment :24.10.2017.
JUDGMENT & ORDER (CAV)
Heard Mrs. P. Baruah Bordoloi, the learned Amicus Curie appearing for the appellant and also Mr. P.S. Lahkar, the learned Addl. Public Prosecutor, appearing for the State of Assam.
2) The appellant is the accused in Sessions Case No. 57(NL)/2016. The said case arises out of G.R. Case No. 96/2016 under Sections 325/302 of the Indian Penal Code (IPC for short), which was tried by the Court of the learned Addl. Sessions Judge, (FTC), Lakhimpur at North Lakhimpur. The appellant was convicted of culpable homicide not amounting to murder under Section 304 (Part-II) IPC and was sentenced to undergo rigorous imprisonment (R.I. for short) for seven years with fine of Rs.10,000/- under Crl. Appeal (J) No.116/2016 Page 1 of 10 Section 304 (Part-II) IPC, and in default of payment of fine to undergo R.I. for another period of six months.
3) This appeal has been filed by the appellant from jail upon being forwarded by the Superintendent of the Jail, North Lakhimpur.
4) The prosecution case in brief is that on 10.01.2016, the informant, namely, Dinesh Biswas lodged an ejhar before the Laluk P.S. stated therein that on 09.01.2016 at about 5:00 P.M., the appellant-accused chased his elder brother Amulya Biswas (48 years) from Gormurh Sonapur Tiniali to the paddy field and there with a lathi, caused grievous injury on his head and chest and broke his hands and legs with the lathi after felling him there and leaving him there, had informed him. The informant first took his injured brother to Laluk Hospital and later on he was shifted to North Lakhimpur Civil Hospital. His injured brother was referred to Guwahati for better treatment but they taken to R.K. Mission Hospital, Arunachal Pradesh, but he died in the morning on 10.01.2016 in the said hospital. On receipt of the said ejhar, the police registered Laluk P.S. Case No. 17/2016 under Section 325/ 302 IPC. On completion of the investigation, charge sheet was filed against the appellant for offence punishable under Section 302 IPC. In course of trial, charges under Section 302 IPC was framed against the appellant and was read over to him. The appellant denied the charges and claimed to be tried. The prosecution examined ten witnesses, who were cross examined defence. The appellant was examined under Section 313 Cr.P.C.
5) The learned trial court formulated the following point of determination - "Whether the accused on 09.01.2016 at about 5:00 P.M. at Gormurh sonapur under Laluk P.S. voluntarily caused grievous hurt to one Amulya Biswas, the elder brother of the informant- Sri Dinesh Biswas, causing marpit on his hands, legs head and chest with a bamboo lathi in the paddy field and later on, the injured died in the next morning in R.K. Mission Crl. Appeal (J) No.116/2016 Page 2 of 10 Hospital at Arunachal Pradesh due to such injuries caused by you and, thereby committed an offence punishable under Section 302 of the IPC?"
6) The PW-1, Dinesh Biswas had given his statement similar to the stand taken in his ejahar. Ext.1 was the ejahar lodged by him and Ext.1(i) was his signature. Ext.2 was the inquest report and Ext.2(i) was his signature. In his cross examination, he had stated that he did not see the assault by the accused on his elder brother. He denied the suggestion that he did not meet the accused on the road and that the accused did not tell him that he had caused the death of his elder brother in the paddy field. He also stated that he never saw any quarrel taking place between he accused and his elder brother. He also denied that the accused did not kill his brother and that he had deposed falsely.
7) PW-2, Binod Biswas had stated that the house of accused was in front of his house and that he knew that deceased. He had stated that around that time of the incident he was in his shop and that he heard hue and cry in the house of the aggrieved person. After sometime in the evening the deceased and one Dwizen went to his shop from the house of the accused person and just after that the accused also came to his shop and took the deceased and Dwizen to the road. Later on, quarrel took place between them on road and the local people went there to disperse the quarrel. After that he heard that the accused had assaulted the deceased with a lathi in the paddy field, which was one furlong away from his shop.
He did not see any bamboo lathi in the hand of the accused. The victim was taken to the hospital and he heard that the victim died on the next date. In his cross-examination, he had stated that he did not see the quarrel in the paddy field. He denied the suggestion that he did not state before the police that he saw bamboo lathi in the hands of the accused and he that he did not see any quarrel between he accused and the deceased and he also denied that he had deposed falsely has he was not an eye witness of the incident.
Crl. Appeal (J) No.116/2016 Page 3 of 108) PW-3, Dwizen Biswas, had stated that he knew both the parties and that the occurrence took place in the evening of 09.01.2016. At that time he was going along the road and he saw quarrel taking place between the accused and the deceased on the road. After disengaging them, he left for his house. After sometime he went to his paddy field to search for his cows and he saw one person beating another with a lathi and he went to the place of occurrence, he saw that the accused was beating the deceased and after seeing him, the accused had fled away. He saw that the deceased was lying there with injury and he called the local people and at that time the younger brother of the deceased, namely, Dinesh also arrived there. Thereafter, Dinesh and his wife took the injured to Lakhimpur Civil Hospital for treatment and he heard that the victim died on the next day. In his cross-examination he denied that he did not state before the police that he saw quarrel between the deceased and accused on the road and after sending them he left for his house and the latter on he went to the paddy field in search of his cows and he saw the accused person beating the deceased with a lathi and on seeing him, the accused had fled away and he saw the deceased was lying there with injury and thereafter he had called local people.
9) PW-4, Anukul Biswas, PW-5, Nirodh Biswas, and PW-6, Gouranga Biswas had all stated that they knew both the parties and on the date of occurrence they came to know that the accused had killed the deceased. In their respective cross examination, they had stated that they did not see the incident. PW-7, Smt. Arpana Biswas had stated that he knew both the parties. She stated that on the date of incident, the deceased and her father were going along the road and at that time the accused was carrying a lathi in one hand and she saw that the accused came back and gave a lathi blow to the victim. She stated that she ran away from the place of occurrence and called the persons from nearby houses and when she returned she saw that Dinesh, the younger brother of the victim was sitting with him at the place of occurrence. In her cross-examination, she had stated that she saw the Crl. Appeal (J) No.116/2016 Page 4 of 10 accused person assaulting Amulya on road. She denied the suggestion that she had not stated before the police all her herein above referred statements. She further denied that she did not see the occurrence and that she had deposed falsely.
10) PW-8, Smt. Archana Biswas, had deposed that on the date of occurrence at about 4.30 P.M., she heard that a quarrel had taken place between the accused and Amulya and she saw that the accused was assaulting Amulya with a lathi and she fled away from the place out of here. In her cross examination, she had stated that the occurrence took place in front of the house of Arpana in the afternoon and she saw three persons at the place of occurrence. She denied that she did not tell the police that she saw the incident. She also stated that the occurrence took place in the paddy field. She denied that she did not see the occurrence and that she had deposed falsely.
11) Kamaleswar Deka, S.I. of Police was examined as PW-9. He had stated that he was working as S.I. at Laluk P.S. on 10.01.2016. The O/C, Laluk P.S. entrusted him to investigate the case. He stated that during investigation he interrogated the informant and visited the place of occurrence and prepared a sketch map of the same. Ext.3 was the sketch map and the Ext.3(1) was his signature. He recorded the statement of the witnesses and arrested the accused from his own house. Later on, he conducted the inquest on the dead body. Ext.2 was the Inquest Report and Ext.2(2) was his signature. He had sent the dead body to North Lakhimpur Civil Hospital for post mortem examination. After completion of investigation and after collecting the post mortem report, he submitted the charge sheet against the accused vide Ext.4 and Ext.4(1) was his signature. In his cross examination, he had stated that he did not seize anything in connection with the incident and in the sketch map he had shown the place of occurrence as a path of the paddy field which was near to the house of one Saptami Biswas. He had also stated that PW-2 Binod Biswas did not state before him Crl. Appeal (J) No.116/2016 Page 5 of 10 that he saw bamboo lathi in the hands of the accused. He had also stated that PW-3, Dwizen Biswas had stated before him that he saw the quarrel between accused and the deceased and he dissolved their quarrel but the said witness did not state before him that when he went to the paddy field, he had seen that the accused person was assaulting to deceased and on seeing him, the accused had fled away and he saw that the deceased was lying there with injury and thereafter he called local people. He also stated that PW-7, Arpana Biswas did not state before him that she saw the accused carrying a lathi in his hand and that the accused had come back and again gave a lathi blow to Amulya and she had ran away from the place and called persons from nearby houses and when she returned she saw the younger brother of Amulya, namely, Dinesh was sitting with the accused at the place of occurrence.
12) PW-10, Dr. Guna Ranjan Miri had deposed that on 10.01.2016, while working as Medical and Health Officer at North Lakhimpur Civil Hospital on post mortem duty, at about 3.30 P.M., he had conducted the post mortem examination of the dead body of one Amulya Biswas (male), aged about 48 years, brought an identified by UBC/259- Ranjit Konwar, Ananda Biswas, Ganesh Biswas and Dinesh Biswas and on examination he found the 1 following injury- "Fracture of right Humerous bone at the lower /3rd. Laceration over vault of skull at the mid point and mid-line (5 cm x 1 cm). Fracture of parietal bones of both sides at the suture line. Clotted blood found all over the brain. All the injuries are ante-mortem in nature." He opined that the deceased died of shock and haemorrhage due to injury sustained. Ext.5 was the post mortem report and Ext.5(1) was his signature. In his cross-examination he had stated that though the injury may be caused by hitting on hard substance, but in this case there was little chance to save his life.
Crl. Appeal (J) No.116/2016 Page 6 of 1013) The defence did not examine any witness. In the statement of the accused recorded under section 313 Cr. P.C., the appellant had denied the incident.
14) The learned Amicus Curie had submitted that there were various houses of the neighbours at the place of occurrence, but none of the inmates of those houses were examined by the police. It is further submitted that although the eye witnesses had stated that the place of occurrence was in the paddy field, but as per the sketch map at Ext.3, the place of occurrence was a path between the main village road and the house of Smt. Archana Biswas. As such, it is submitted that there was some discrepancy in the place of occurrence. It is further submitted that the alleged weapon of assault i.e. the bamboo lathi was not seized by the police and therefore, the appellant could not be connected with the alleged offence. It is further stated that the presence of accused at the place of occurrence was not proved and the commission of the alleged offence by the accused was also not proved. Hence, the guilt of the appellant could not be proved beyond reasonable doubt. On the aforesaid ground the learned amicus curie had prayed for acquittal of the accused. In the alternative, it was submitted that at best, by treating this case as an assault, this was a fit case for showing leniency on the prayer of the appellant and that the sentence awarded to the appellant be reduced in the period already undergone.
15) Per contra, the learned Addl. P.P. has made his submissions in support of the impugned judgment and sentence. The learned Addl. P.P., by relying on the evidence of the PWs including PW-1, PW-7, PW-8, PW-9 and PW-10, has submitted that the guilt of the appellant has been proved beyond reasonable doubt. It is submitted that the evidence of eye witnesses could not be dislodged during their respective cross- examination. It is also submitted that PW-7 had stated in her evidence that the appellant had come back and assaulted the victim by a lathi blow and it is submitted that the PW-2 had stated in his evidence that the local people had dispersed the Crl. Appeal (J) No.116/2016 Page 7 of 10 appellant and the victim after stopping their quarrel and, as such, this was a case where the assault on the deceased was not on grave and sudden provocation, but it was a case of deliberate assault with the intension of causing grievous injury and/or death, and that the appellant had full knowledge of the consequences of beating up the deceased with bamboo lathi on the head on other vital parts of the body.
16) On appreciating the evidence afresh, the PW-1, Dinesh Biswas had stated that the accused had informed him that he had assaulted his elder brother and left him fallen in the paddy field and told him to take his brother and that he had also stated that he saw bamboo lathi in the hand of the accused. The PW-2 saw that the appellant had taken the victim and Dwizen to the road and later on quarrel took place between them and the local people had dissolved the quarrel. PW-3, Dwizen Biswas, PW-7, Smt. Arpana Biswas and PW-8, Smt. Archana Biswas are eye witnesses to the incident and they saw that the appellant had assaulted the victim with a bamboo lathi and they also saw that later on Dinesh Biswas, the brother of the victim had come to the place of occurrence. The evidence of the said witnesses had remained unshaken. There appears to be no discrepancy as regards the place of the occurrence because the field path constitutes a part of the paddy field, which is clearly shown in the sketch map (Ext.3) prepared by the investigating officer. Although the weapon of assault i.e. bamboo lathi was not seized, but the post mortem report supports the evidence of assault on the victim by the appellant by a hard substance.
17) The deceased was assaulted on 09.01.2016 and thereafter, the PW-1 had taken the said victim to R.K. Mission Hospital, Arunachal Pradesh for better treatment, but his brother succumbed to the injury on 10.01.2016 and, as such, the PW-1 had lodged the ejhar (Ext.1) on the first available opportunity on 10.01.2016.
Crl. Appeal (J) No.116/2016 Page 8 of 1018) As per the evidence of PW-2, Binod Biswas, the deceased was last seen alive with the appellant. Similarly, the PW-3, PW-7 and PW-8, all saw that the appellant was assaulting the deceased, and left and immediately thereafter, they saw that the PW-1, Dinesh Biswas had come to the place of occurrence near his brother. As per the evidence of the PW-1, the appellant had informed him that he had assaulted his brother. Therefore, there is no doubt that the appellant was with the deceased and that he had assaulted the deceased with bamboo lathi. Moreover, the appellant has not been able to explain incriminating circumstances put to him during his examination.
19) In the present case in hand, the materials on record clearly points towards the fact that a quarrel did take place between the deceased and appellant on 09.01.2016 and that the appellant was armed with a bamboo lathi and that he had assaulted the deceased with the bamboo lathi on the head of the deceased. As per the post mortem report (Ext.5), this is not a case where only a single lathi blow was inflicted upon the deceased, but multiple blows were inflicted on the deceased.
20) It is seen that the learned trial court had considered the plea of mercy of the appellant and the learned trial court on considering the same had shown leniency by sentencing the appellant to undergo R.I. for 7 years with fine of Rs.10,000/- under Section 304 (Part-II) IPC., and in default of payment of fine, the appellant was sentenced to undergo R.I. for another period of six months by further providing that the period of detention already undergone by the appellant is to be set- off from the sentence of imprisonment, so awarded. Therefore, this Court does not find any reason for showing any further leniency towards the accused and there appears to be no reason for interfering with the impugned judgment or in respect of the sentence awarded against the appellant to the extent as indicated above.
21) Accordingly, the conviction and the sentence imposed on the appellant is hereby upheld and this appeal is hereby dismissed.
Crl. Appeal (J) No.116/2016 Page 9 of 1022) Let a free copy of the judgment be provided to the appellant.
23) Let the LCR be returned forthwith. 24) This Court puts on record the appreciation towards the learned
amicus curie as well as the learned Addl. P.P. for conducting the hearing of this case before this vacation Bench. The learned Amicus Curie shall be entitled to her usual remuneration of Rs.7,000/-, to be paid by the Assam State Legal Service Authority.
JUDGE MKUMAR Crl. Appeal (J) No.116/2016 Page 10 of 10