Gauhati High Court
Sri Dandeswar Barman vs The State Of Assam & Anr on 23 February, 2017
Author: Manojit Bhuyan
Bench: Manojit Bhuyan
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, ARUNACHAL PRADESH AND MIZORAM)
Criminal Appeal No. 206 of 2015
Appellant/Accused .... Dandeswar Barman
Respondents .... The State of Assam
BEFORE HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH HON'BLE MR. JUSTICE MANOJIT BHUYAN For the Appellant/Accused ... Mr.A Choudhury & Ms. M Konch, learned counsel, For the Respondents ... Mr. K Konwar, learned Additional Public Prosecutor Date of hearing & Judgment ... 23.02.2017 JUDGMENT AND ORDER (Ajit Singh, C.J.) The sole appellant Dandeswar Barman has been convicted on two counts for committing offences under Section 302 and 376 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/-, with default stipulations.
2. The victim of the incident was a small girl-Anjumani Barman-aged about 12 years 2 months.
3. According to the prosecution case, the appellant and the victim were neighbours. On 30/7/2005 the father Khargeswar Deka (PW-1) of the victim- went for daily work in the morning and her mother-Sumitra Deka (PW-10) also went for fishing leaving behind Anjumoni alone in the house. At about 12:30 P.M., Anjumoni was itching prickly heats on the body of appellant at gateway of his house. Seeing this her aunt-Durgeswai (PW-9)-called her home. Pradip Barman (PW-13) also saw Anjumoni itching the appellant. After sometime, when Sumitra came back home and found her daughter missing, she raised an alarm and searched for her. She even went to the appellant who was playing cards with Girish Barman (PW-11), Nila Barman (PW-12) and Achyut Deka (PW-19) and asked about Anjumoni, but he denied having any knowledge about her whereabouts. However, on vigorous search the Page 1 of 7 dead body of Anjumani was found in the sugarcane field of the appellant which is adjacent to his house. Lachit Barman(PW-2), Hareswar Barman (PW-3), Jibeswar Barman (PW-4), Dwijen Barman (PW-6) and other co- villagers also saw her dead body lying there. She was found to be raped and murdered by strangulating her neck. The persons observed bite marks over her cheek, chest and strangulation marks over her neck and blood coming out from her private parts.
4. Kanthi Saikia (PW-15) then informed the police and Sub-Inspector Sohrab Ali (PW-25) immediately rushed to the place of occurrence. Father- Khargeswar of Anjumoni also made ejahar (Exhibit-1) at police station Baihata Chariali of Kamrup District.
5. Sohrab Ali investigated the case, got the inquest done by Guru Dutta Lahkar (PW-16).Guru Dutta found sign of strangulation mark of left hand in the neck of Anjumoni and black stain on her left ear and eye. He also saw injury marks in the back side and upper lip of her and stool in her buttock as well as blood stain in her private parts. Exhibit-12 is his inquest report. Sohrab Ali also questioned the witnesses, drew sketch map etc. He sent the dead body of Anjumoni for Post-mortem examination.
6. Dr. Putul Mahanta (PW-17) conducted post-mortem examination on Anjumoni on 31/07/2005 and found the following multiple injuries on her whole body:-
(a) Scratch abrasion (crysantic abrasion/ nail mark) two in number over inner aspect of the right thigh, upper third.
(b) Two numbers of contusion of ½ and 2/ 1.5 cm respectively over front of the neck.
(c) Contusion of size 5.4 cm in size over upper part of chest 4 cm right from midline.
(d) Contusion of size 4x3 cm over front of neck 3 cm right from midline 2 cm above right clavicle.
(e) Contusion of size 5x4 cm over upper chest 3 cm left from midline 1.5 cm below the left clavicle.Page 2 of 7
(f) Contusion 1 x 0.9 cm in size creasantic/ nail marks over upper lip on midline.
(g) Vagina developed labia majora and minora partly separated;
hymeneal admits thumb, contusion of size 3x2 cm over labia majora.
(h) Bruises over right margins of anus and anus dilated of 2.5 cm diameter.
(i) Contusion of 1 cm x 0.9 cm size in between the both horn of thyroid bone.
The doctor opined that the cause of death was due asphyxia as a result of manual strangulation and the injuries were homicidal and ante-mortem in nature caused by blunt force impact. He also reported that the vaginal and anal findings were suggestive of forceful penetration. His post mortem examination report is exhibit 13.
7. Sohrab arrested the appellant on 1/8/2005 and sent him for medical examination. Dr. Ranjit Sarma (PW-24) examined him on that day itself and found multiple teeth bites marks on his right middle finger both side of the tip with bruising, sharp cut injury on the right middle finger of 1 cm long, nail scratch mark over whole body front and back, in front of chest, forehead, waist and right hand and multiple nail marks on forehead. He also found superficial abrasion over both sides of petala (knee). Exhibit-2- is his report. The appellant confessed his guilt before Sohrab and also handed him a knife by which he committed murder of Anjumoni. The knife was seized in presence of Kanthi vide Exhibit-11 seizure list. The clothes of Anjumoni were also seized vide exhibit 2, 3 and 4 seizure lists in presence of Lachit, Hareswar and Tarun Nath (PW-23).
8. Since the appellant expressed his desire to make confession, he was sent for recording his confessional statement on 08/08/2005 and Smti Dharitry Barman (PW-8)-then Sub-Divisional Judicial Magistrate, Rangia recorded the statement (Exhibit-5) on 09/08/2005. When the appellant was produced before her on 08/08/2005, she sent him to Judicial custody and he was produced on the next day from Judicial custody. The appellant was given sufficient time for reflection and was also cautioned about the Page 3 of 7 implications for making such confessions. His confessional statement is as follows:-
"Around 11-30 a.m. on 30-07-05, my neighbor Anjumoni Barman was itching prickles on my person. About 15 minutes after that she left for her home. Around 12 o' clock, I too, went home, kept the chair there and left for the basti around 300 metre away where I have cultivation of sugarcane, pointed gourd and bitter gourd. At basti, I saw Anjumoni and dragged her to the jungle forcibly. Then I committed rape on her when she died. While committing rape, I held her neck forcefully. Thereafter, leaving Anjumoni's dead body there itself, I caught fish in the pond nearby my house. Then I played cards at Girish Barman's house. Around 1 p.m., Anjumoni's mother went in search of Anjumoni and around 4 p.m., public recovered Anjumoni's dead body from the basti. Around 6 p.m. police came and brought me and some other people under arrest."
9. Appellant also confessed about his guilt in front of Kamini, Kanthi and other co-villagers but in presence of police. The blood samples of the appellant were also collected by Jayanta Deka (PW-21) and Smti Pranita Talukdar (PW-22)-both staff of Rangia CHC/FRU and were seized vide Exhibit-19 seizure list. The blood samples and other seized materials including the undergarments of Anjumoni were sent to Forensic Science Laboratory, Guwahati. The samples were examined and Bijoy Baruah (PW-
20) submitted his reports vide Exhibit-18.
10. On completion of investigation, police submitted charge-sheet against the appellant for offences under Sections 302/376/201 of the Indian Penal Code.
11. During trial, the appellant abjured his guilt and pleaded false implication. He adduced his evidence as DW-1 and took the plea that he had been falsely implicated by the father of Anjumoni to grab his lands illegally. He also stated that he was made to confess falsely by the police by using force and thus retracted his confession. But the trial court relying upon the evidence adduced by the prosecution, convicted and sentenced him as aforesaid.
Page 4 of 712. In the present case, the appellant voluntarily made confession before Dharitry (PW-8) incriminating himself and the magistrate recorded her statement giving him sufficient time for reflection and after giving statutory warnings. Therefore, the confession is admissible in evidence. During his statement u/s 313 Cr.P.C also he admitted making such a confession but under influence of the police. But this explanation is found to be incorrect and false. Dharitry has categorically deposed that the appellant made confession voluntarily and she gave sufficient time for reflection and there was no threat of police at the time of making such confession. The evidence of Dharitry being a public servant discharging her duties cannot be doubted as she had no reason to speak untruth.
13. Besides, the confessional statement is supported by the oral evidence of Durgeswari and Pradip who deposed that they lastly saw Anjumoni alive with the appellant. It is their categorical deposition that she was itching prickly heats on the person of the appellant. Appellant in his confessional statement categorically stated that Anjumoni was itching his prickly heats at about 11-30 a.m. Even mother-Sumitra-deposed that Durgeswari told her- when Anjumoni was found missing-that she saw Anjumoni itching prickly heats of appellant. Sumitra, Durgeswari and Pradip also stated the same before police. As such the fact that Anjumoni was with the appellant just before the incident is proved beyond reasonable doubt and it also corroborates the confessional statement of the appellant.
14. The dead body was found after a short duration thereafter in the jungle adjacent to the sugarcane field of the appellant. The appellant also stated in his confession that he dragged Anjumoni forcibly to the jungle when he found her in the sugarcane field and committed rape on her. He also stated that while committing rape on her she died as he held her neck forcefully. This statement is corroborated by the evidence of Guru Dutta Lahkar (PW-16)-who conducted the inquest, Dr. Putul Mahanta (PW-17)-who conducted the post-mortem examination and other witnesses who saw the dead body. All the witnesses noticed strangulation marks on the neck of Anjumoni and medical evidence as well as inquest report (Exhibit-12) Page 5 of 7 supports their evidence. All the aforementioned witnesses stood firm during their cross-examination and as such attract confidence of the court. Their evidence is reliable and truthful and corroborated one another on material particulars.
15. Appellant was found to be injured with multiple nail scratches over his whole body and biting marks. This could only happen in case of attempt to commit rape or while committing rape and the victim resisting the perpetrator. The appellant could not forward any plausible explanation to such injuries and his simple saying that he got the injuries on his finger while fishing is unbelievable. Appellant also stated in his confession that after committing the crime he went to his house and started fishing in the pond at the backside of his house and thereafter he played cards in the house of Girish. This fact is also supported by the evidence of Achyut, Girish, Nila and Samin Barman (PW-18). Girish found appellant fishing in the pond and he called him to his house to play cards. Then the appellant went to his house and Samin has deposed that appellant asked Samin to bring one bandage as he got some injury while fishing and thereafter he started playing cards with Achyut, Girish, Nila and Samin. Appellant was playing cards at the time when the search for Anjumoni was going on and mother-Sumitra-of Anjumoni also corroborated that piece of evidence. This proves that the facts as narrated by appellant in his confessional statement are true and reliable. Each of the above facts have been corroborated either by ocular evidence or by medical evidence and as such the confessional statement in its entirety is truthful, reliable and admissible in evidence. Although, the report of the forensic expert-Bijoy Baruah (PW-20)-does not decisively point the finger of guilt to the appellant as the evidence was destroyed, the same does not at all shake the backbone of the prosecution case as all the circumstances have been proved beyond reasonable doubt and the chain of circumstances is also complete. Besides, it is the golden principle of criminal jurisprudence ocular evidence must always be given preference to the expert opinion even if the expert opinion does not support the ocular evidence.
Page 6 of 716. It has been proved beyond reasonable doubt that Anjumoni was last seen alive with the appellant and after that within a short span of time, her dead body was discovered. The dead body of Anjumoni was also discovered from the jungle which adjoined the sugarcane field of the appellant. The medical evidence proves that she was raped and murdered by strangulation. And it is also the evidence that the appellant sustained several injuries over whole of his body which were caused by teeth bites and nail scratches. The appellant could not offer any plausible explanation to those injuries and he made confession before the magistrate where he confessed of committing rape on Anjumoni and then committing her murder by strangulation. His confession is also found to be true and supported by cogent evidence and as such admissible in evidence. Hence, it has been proved beyond reasonable doubt that Anjumoni was raped and murdered by the appellant and none other and the appellant alone was the perpetrator of crime.
17. Hence, we are of the considered opinion that the conviction and sentences of the appellant are proper and having regard to the above find ourselves in complete agreement with the finding of the trial court. The jail sentences shall however run concurrently.
18. The appeal being devoid of any merit is dismissed.
JUDGE CHIEF JUSTICE
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