Gauhati High Court
Sri Anil Medhi & 2 Ors vs The State Of Assam on 27 July, 2016
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
Criminal Appeal(J) No. 96/2012
Sri Anil Medhi
Sri Nitul Medhi
Sri Jun Kalita
..........Appellants
-Vs-
The State of Assam.
.......Respondent.
For the appellant : Mr. P.J. Phukan, Amicus Curiae.
For the respondents : Ms. S. Jahan, APP, Assam.
BEFORE
HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH
HON'BLE MR. JUSTICE SUMAN SHYAM
Date of hearing : 19-07-2016
Date of Judgement : 27-07-2016
JUDGEMENT AND ORDER (CAV)
Sum an Shyam , J,
The three appellants, viz, Anil Medhi, Nitul Medhi and June Kalita have been convicted under section 302/34 of the Indian Penal Code for committing murder of Banamali Kalita and each of them have been sentenced to life imprisonment with fine of Rs. 2000/- with default stipulation.
2. The prosecution case is that on 16/06/2003 at about 9-30 a.m., the aforementioned three appellants Anil Medhi, Nitul Medhi and June Kalita had engaged in a quarrel with Banamali and thereafter, chased and hacked Banamali with dao killing him on the spot. The murder took place at the Page 1 of 12 instance of their father Purandhar Kalita and Smt. Renu Kalita over a quarrel involving land dispute.
3. On 16/06/2003 Shri Tutumoni Bora (Kalita) (PW-1) i.e. the brother of the deceased, had lodged an ejahar with the Dhing Police Station, District- Nagaon, informing the Police about the incident. Based on the said ejahar, Dhing Police Station case No. 73/2003 was registered under Section 302/109/34 of the Indian Penal Code and an investigation was started by the Police. On completion of the investigation, charge sheet was submitted against all the three appellants as well as the co-accused Sri Purandhar Kalita and Smt. Renu Kalita under Section 147/302 of the Indian Penal Code. On being committed to the Court of Sessions Judge, Nagaon, Sessions case No. 263/2003 was registered and thereafter formal charges were framed against all the five accused persons under section 302/34 of the Indian Penal Code. The accused persons having pleaded not guilty, the matter was put to trial, whereafter, the appellants here-in had been convicted under section 302/34 of the IPC for committing murder of Banamali Kalita. The remaining two accused, viz. Sri Purandhar Kalita and Smt. Renu Kalita were, however, acquitted due to lack of evidence against them.
4. Evidence on record reveals that Jonti @ Banamali Bora (Kalita), a male aged about 30 years, had died on 16/06/2003 after having suffered multiple cut injuries on his body with sharp weapon. The inquest report Ext. 3 indicates that there were marks of cut with sharp weapon on the back and on the dorsal side of the right arm and when the body was turned over and examined, a large injury caused by cutting with sharp weapon was also seen on the chest. The inquest report further mentions that there was a quarrel and resultant Page 2 of 12 fight amongst the father and the brothers of the deceased over the family affairs and landed properties in course of which, the deceased was cut to death with dao.
5. Post mortem examination was conducted on the dead body on 16/06/2003 at the B.P. Civil Hospital, Nagaon. As per the Post Mortem Report (Ext-7), the following injuries were found on the dead body.
"1. Oblique incised wound 6"x2"x bone deep on the left parietal and temporal region of the scalp.
2. Oblique incised wound extending from post wall of the right axilla up to 1 1/2 " below the left nipple with multiple fracture of rib (cut) on both side of extensive chest wall exposing thoracic visceras on the right side of the chest. Length of the wound about 18"x1"x2".
3. Incised wound on the left deltoid region, measuring 3"x1".
4. Transverse incised wound on the left scapula region measuring 4"x1"x1".
5. Transverse incised wound on the right lumber region measuring 2"x1"x1".
6. Oblique incised would on the left forearm post aspect left forearm 3" below tip of left elbow."
6. Dr. Keshaba Nanda Goswami, who had conducted the post mortem examination on the dead body of Banamali, was examined as PW-6. The doctor had opined that the death of the deceased was caused due to shock and haemorrhage as a result of the injuries sustained. The doctor has further deposed that the injuries were ante mortem and homicidal in nature and was sufficient to cause death in the ordinary course of nature.
7. The prosecution case is based on the testimony of as many as four eye witnesses to the incident. Shri Uttam Bezbaruah (PW-3), who is a neighbour Page 3 of 12 of the appellants and the deceased, is an eye witness to the incident and has deposed before the Court that on the day of the incident at around 9-30 a.m. he saw Anil Medhi and Nitul Medhi chasing Banamali Kalita and thereafter, Anil Medhi had hacked Banamali with a "akura" (curved) dao near his back. The witness had further deposed that Nitul Medhi also stuck Banamali with a "akura" dao. Thereafter, June Kalita also came charging with a similar dao and he cut Banamali in front of his (Uttam's) gateway with that dao in a manner as if he was cutting a banana tree. According to PW-3, Banamali died in his gateway some 5 (five) minutes later. Uttam Bezbaruah (PW-3) has also deposed that, June, Nitul and Anil fled away on Rupa Kalita raising a commotion. The witness has further deposed that Purandhar Kalita had asked the accused persons whether they had finished him or not and out of fear he (PW-3) went inside his house. As per the testimony of Uttam Bezbaruah , Police came to the place of occurrence a little later and seized the blood stained dao through seizure list Ext.-2. The witness has identified his signature in the seizure list as Ext. 2(2).
8. PW-4 Smt. Niru Kalita is another eye witness to the incident. She has categorically deposed before the Court that on the date of the incident at about 9-30 a.m. she had come out to escort her children to school when she saw June Kalita chasing Banamali. Banamali fell down near a light post and then Jun Kalita hacked Banamali in the back, arms and other parts of his body with a akura dao. PW-4 then raised alarm. The witness deposed that she only saw June kalita dealing the cut blows and she did not see what happened prior to that. According to Niru (PW-4), Banamali died there itself. Page 4 of 12
9. PW-5 Smt. Rupa Kalita is also an eye witness to the incident and had deposed that in the morning of 16/06/2003 when she came out of her house to escort her daughter to school she saw Uttam Bezbaruah and two others on her gateway. Rupa Kalita deposed that she saw June Kalita chasing Banamali and cut him with a dao. She raised a hue and cry but instead of paying any heed to that June Kalita continued to inflict cuts and Banamali fell there. Later on, Police came and took Banamali away.
10. The witness Padmakanta Bora (PW-7) is also an eye witness to the incident and he had deposed that the incident took place on 16/06/2003 at about 9/9-30 a.m. when he was doing spadework in his enclosed yard. The witness had deposed that while he was digging his land, Banamali came to him and spent about 10 minutes with him. Thereafter Banamali went away to his house. On the way, he had an altercation with the accused persons and the accused Purandhar Kalita, June Kalita, Anil Medhi and Nitul Medhi chased him before hacking him with the dao. PW-7 has categorically deposed that he saw the incident himself. According to the PW-7, Banamali died 10/12 minutes after the incident.
11. From a careful scrutiny of the account of the 4 (four) eye witnesses, viz. PW-3 Shri Uttam Bezbaruah, PW-4 Smt. Niru Kalita, PW-5 Smt. Rupa Kalita and PW-7 Sri Padma Kanta Bora, what can be seen is that the incident had occurred on 16/06/2003 at around 9-30 a.m. when Banamali was hacked to death by the appellants, Anil Medhi, Nitul Medhi and June Kalita by a sharp weapon.
12. PW-3 Uttam Bezbarauah had not only testified to the effect that he had seen all the three appellants inflicting dao blows upon the victim Banamali but Page 5 of 12 has also given a graphics description of the sequence in which the 3 appellants had hacked the deceased by stating that it was Anil who had first hacked Banamali on his back and thereafter Nitul also struck Banamali with the dao. Later on, June Kalita came charging with a similar dao and cut Banamali in the gateway of PW-3 some 5 (five) minutes later. According to PW-3, it was at that stage, Rupa Kalita had raised commotion and June, Nitul and Anil fled away. It would be worth noting here-in that PW-5 Rupa Kalita had mentioned only about having seen June Kalita cutting Banamali with the dao when she raised hue and cry. From the testimony of PW-3 and PW-5, it is thus apparent that the PW-5 did not see Anil and Nitul cutting Banamali which happened prior to June Kalita chasing and cutting the deceased with the dao.
13. Similar is the case with PW-4 Smt. Niru Kalita, who had admitted that she had only seen that June Kalita had hacked Banamali in the back, arms and other parts of the body but she did not see what happened prior to that. From the testimony of both the witnesses it is apparent that both Niru Kalita(PW-4) and Rupa Kalita (PW-5) had come out to escort their children to school around the same time and therefore, it is possible that the two witnesses i.e. PW-4 and PW-5 did not witness Anil and Nitul hacking the deceased with the dao. However, the fact that Anil and Nitul had also chased the deceased Banamali and hacked him with the dao stands fully established from the testimony of Uttam Bezbaruah (PW-3), which fact has been corroborated by another eye witness Padma Kanta Bora (PW-7), who had also seen Anil and Nitul chase Banamali before cutting him with a dao.
14. Although PW-2 Tarun Bora is not an eye witness to the incident , yet, he had seen one of the appellants Anil Medhi talking with the deceased about Page 6 of 12 landed property in the place of occurrence minutes before the incident. According to the witness Tarun Bora, on the date of the incident he was on his way to Nagaon when he saw appellant Anil talking to Banamali. While Anil Medhi was talking to Banamali, Nitul and Purandhar Kalita arrived there and an altercation started between them . He has deposed that Anil and Nitul threw bricks at Banamali. He then tried to dis-engage them and after diffusing the quarrel, Tarun Bora had started for Nagaon but hardly had he traversed a distance of about ten meters, the appellants chased him and later they assaulted Banamali. From the testimony of the witness Tarun Bora (PW-2), it is apparent that the initial quarrel took place between the deceased Banamali and the appellants Anil and Nitul in presence of their father Purandhar Kalita.
15. After a threadbare analysis of the testimony of the witnesses, it is thus evident that June Kalita was not present at the place of occurrence when Anil Medhi and Nitul Medhi had initially chased Banamali and assaulted him. However, June Kalita came a little later and assaulted Banamali with the dao repeatedly causing grievous injuries upon his body. That is the reason why Niru kalita(PW-4) and Rupa Kalita (PW-5) had only seen June Kalita hacking the deceased with the dao because they had not seen the incident prior to that which was witnesses by Uttam Bezbaruah(PW-3) and Padmakanta Bora (PW-7).
16. The witnesses examined by the prosecution, more particularly the four eye-witnesses, have corroborated each other. During their cross-examination, nothing could be brought out so as to discredit those witnesses. The trail court has believed the eye-witnesses and has based the conviction on their testimony. We also do not find any valid reason to disbelieve the testimony of Page 7 of 12 the four eye witnesses. From the evidence available on record, we are of the view that the prosecution has succeeded in proving the fact that deceased Banamali had been chased by the three appellant and who had hacked him with dao causing homicidal death of Banamali. It has also been established all the three appellants had participated in the event and had acted in furtherance of common intention of murdering the deceased.
17. By referring to the injuries suffered by one of the appellants (accused) Anil Medhi, Mr. Phukan, learned Amicus Curiae has argued before us that since the prosecution has failed to explain the injury caused to one of the accused persons, hence, the prosecution story is not at all believable. On such ground, the learned counsel has prayed for acquittal of all the 3 appellants. In support of his above argument, Mr. Phukan has relied upon a decision of the Division Bench of this Court in the case of Mintu Hazarika Vs. State of Assam reported in 2002 (3) GLT 80. In the case of Mintu Hazarika (Supra), a Division Bench of this Court had acquitted the accused, inter-alia, on the ground that the simple injuries on one of the accused had not been explained by the prosecution. In doing so, the Division Bench had relied upon a decision of the Supreme Court in the case of Padam Singh Vs. State of U.P. reported in (2000) 1 SCC 621, in which case there was gunshot firing resulting into the death of one person belonging to prosecution side and three persons from amongst the accused and the prosecution had not only failed to explain the injuries on the person of the accused but had even failed to establish the place of occurrence. It was in those fact situation that the Supreme Court had observed that when the prosecution does not explain the injury sustained by the accused at about the time of occurrence or in the course of occurrence, the Court can draw Page 8 of 12 inference that prosecution had suppressed the genesis and the origin of occurrence and has thus, not presented the true version. In that case, having regard to the materials brought on record by the prosecution coupled with the fact that the prosecution had failed to offer any explanation as to how the people belonging to the accused had died, the Supreme Court had acquitted the convicts.
18. In the present case, it is not in dispute that the appellant (accused) Anil Medhi had suffered injuries during the course of the occurrence whereafter he was given medical treatment. Dr. Ritewar Thengal (PW-11) had treated Anil Medhi and the doctor had deposed before the Court that the injury suffered by Anil Medhi was simple and caused by sharp weapon which was caused below the neck. The PW-11 testified that Anil Medhi was kept under observation for 3 (three) hours and then discharged.
19. In the case of Omkarnath Singh Vs. State of U.P. reported in (1975) 3 SCC 276, the Supreme Court had held that non-explanation of injuries of the accused is a question of fact and not one of law. Answering to such question depends upon the circumstances of the case and the entire prosecution case cannot be thrown overboard simply because the prosecution witnesses did not explain the injuries on the person of the accused. In the said decision it has further been observed that it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that accused has received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would prima facie stand established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self defence.
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20. Similarly, in the case of Surendra Paswan Vs. State of Jharkhand reported in (2003) 12 SCC 360, the Supreme Court has held that the failure to explain the injuries on the accused will not affect the prosecution case when the injuries are minor and superficial or where the evidence is so clear and cogent, so consistent and creditworthy that it outweighs the omission on the part of the prosecution to explain the injuries. Again in the case of Anil Kumar vs State of UP 2005 SCC (Cri) 178, it has been held by the Supreme Court that failure to explain injuries on the accused would not affect the prosecution case when the injuries are simple in nature.
21. From an analysis of the aforementioned decisions of the Supreme Court, what follows is that simple injuries on the body of the accused, even if remained unexplained, cannot throw the prosecution case overboard. As has been mentioned hereinabove, the injury on Anil Medhi was found to be simple in nature. During his cross examination, although the PW-1 had stated that the said injury was inflicted by Anil Medhi on his own person, yet what appears to us is that Anil Medhi had sustained injuries on his back while the 3 (three) appellants were chasing the victim with sharp weapon in their hand. There is nothing on record to indicate that either the victim was carrying any weapon or there was any other person, other than the appellants, carrying sharp weapon present in the place of occurrence at the time of incident. As noted above, there is clear, cogent and trustworthy evidence available on record to establish the fact that it was the appellants who had fatally assaulted un- armed Banamali killing him on the spot. In such view of the matter, we do not find any force in the arguments advanced by the learned counsel for the appellant.
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22. The next point raised by Mr. Phukan is that the Police had seized only one dao and the doctor (PW-6) who had conducted the post-mortem examination had also opined that the injury had been caused by one and the same weapon. If that be so, according to the learned counsel for the appellant, the testimony of the eye witnesses to the effect that all the 3 appellants had chased and caused multiple injuries by hacking upon the deceased cannot be true and deserves to be discarded. We are unable to agree with the said submission of the learned counsels for two reasons- firstly, a perusal of the Post Mortem Report (Ext-7) shows as many as 6 (six) major injuries and multiple fractures on the dead body which could not have been inflicted by only one person by using one single weapon. Secondly, it is settled principle of law that when there is clear ocular evidence given by eye witnesses as regards the nature of injury, contradictory medical opinions can be ignored by the Court. The eye witnesses have seen each of the appellants chasing and hacking the deceased Banamali, one after the other, with a dao. Since the doctor (PW-6) had examined the dead body at the time of post mortem, hence it is not apparent as to on what basis he had given an opinion that all the injuries were inflicted by the "same weapon". Therefore, the said opinion of the doctor, in the light of the testimony of the eye-witnesses, has to be read and understood as injuries having been caused by "one type of weapon". Such an interpretation also fits into to the testimony of the eye- witnesses, all of whom have seen the appellants use an "akura" ( curved) dao.
23. We have already held that from the testimony of the four eye- witnesses i.e. PW-3, PW-4, PW-5 and PW-7, it is established beyond reasonable doubt that the 3 (three) appellants have dealt multiple dao blows Page 11 of 12 on the person of the deceased Banamali Kalita which has resulted into his death. The prosecution case having been established based on clear, cogent and convincing evidence on record, we hold that the conviction of all the appellants under Section 302 of the Indian Penal Code and their sentence to life imprisonment was just and proper.
For the reasons stated hereinabove, there is no merit in this appeal and the same stands dismissed.
JUDGE CHIEF JUSTICE
Sukhamay
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