Gauhati High Court
Chutu Modi vs The State Of Assam on 28 May, 2012
Author: Amitava Roy
Bench: Amitava Roy
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR: TRIPURA:
MIZORAM AND ARUNACHAL PRADESH)
Criminal Appeal (J) N0. 14 OF 2006
CHUTU MODI
............Appellant
-Versus-
STATE OF ASSAM
........... Respondent
BEFORE HON'BLE MR. JUSTICE AMITAVA ROY HON'BLE MR. JUSTICE DR. (MRS.) INDIRA SHAH For the Appellant : Mr. S Banik, Amicus Curiae.
For the respondents : Mr. D. Das, Addl. Public Prosecutor, Assam.
Date of Hearing : 28.05.2012.
Date of Judgment : 28.05.2012.
JUDGMENT AND ORDER(ORAL)
Amitava Roy, J
Being aggrieved by his conviction under section 302 of the Indian Penal Code (for short hereafter referred to as the Code) and sentence of imprisonment for life as well as for fine of Rs. 5000/-, in default, rigorous imprisonment for further two years recorded by the judgment and order dated 02.01.2006, passed by the learned Sessions Judge, Golaghat in Sessions Case No. 37/2005, the appellant, who is in jail, is in appeal for redress.
02. We have heard Mr. S Banik, learned Amicus Curiae for the accused-appellant and Mr. D Das, learned Addl. Public Prosecutor, Assam.
03. On the FIR dated 02.01.2005, lodged by Smti. Nibha Gowala, the wife of the deceased, with the Officer-in-Charge Police Out Post, alleging that at about 06.00 a.m. in the morning of the same date, while her husband Haridas Gowala was offering Puja in the Shiva Temple in front of their house, the accused-appellant armed with a "copi dao" (sharp cutting weapon) dragged him (deceased) to the PWD road from out of the inner chamber of the temple and seriously injured him by inflicting cut injuries. The FIR disclosed that the injured succumbed to the injuries sustained on his way to the hospital. Eventually, Kamargaon P.S. Case No. 01/2005, under section 302 was registered against the accused-appellant and on the completion of the investigation, a charge sheet was submitted against him under the said provision of law. He having denied the charge, the prosecution, at the trial, examined 11 witnesses, including the Doctor, who had performed the post mortem examination as well as the Investigating Officer. The accused-appellant did not adduce any evidence in defence. In his statement(s) recorded under section 313 Cr.P.C, he denied the allegation and claimed himself to be innocent. The impugned decision as above, followed.
04. Before adverting to the assertions made on behalf of the appellant in assailment of the judgment and order before us, it is expedient to conduct a brief survey of the evidence on record.
05. PW 1, Smti. Niva Gowala, the informant, on oath, deposed that while, on the date of the incident, her husband had entered the Shiva Temple for offering Puja she was in her house. As her baby cried she took it on her lap and went outside and saw the accused-appellant hacking her CRL. A. NO. 14(J)/2006 Page 2 of 9 husband. The witness stated that on seeing the incident, she raised alarm and rushed to the place of occurrence and found cut injuries on the face of her husband. She stated as well that as she screamed, the accused- appellant fled from the scene. According to this witness, after the people had assembled at the place of occurrence, her injured husband was removed to the Golaghat Civil Hospital, but he was declared to be dead thereat. She stated that her husband had no quarrel with the accused- appellant and, therefore, she was perplexed as to why the latter had assaulted him (the deceased).
06. PW 2, Sri Gensa Mura is not an eye-witness, but stated that at about 06.00 a.m. on 02.01.2005, the accused-appellant had visited his house and touched his feet and kept a blood stained dao on the ground. According to this witness, the accused-appellant told him that an incident had taken place at a Shiva Temple and implored him to look into the matter. The witness on getting this information went to the Shiva Temple and met several persons assembled there. The witness testified that those people told him that Haridas Gowala with cut injuries had been sent to the hospital. This witness then took the dao and kept it on a hay stack, which was seized later on by the police along with a pair of sandals vide Ext. 1. He identified these articles of seizure. He also stated that the wife of the deceased had confided in him that the accused-appellant had cut her husband with a dao.
07. PW 3, Sri Gunuwa Bhuyan stated that on receiving the information about the incident he arrived at the spot and found the accused- CRL. A. NO. 14(J)/2006 Page 3 of 9 appellant being tied up by the public. He stated to have been told by them that the accused-appellant had killed Haridas by cutting him with a dao. He also proved the seizure of the dao (Mat. Ext. 1) and a pair of sandals (Mat. Ext. 2) vide Ext. 1.
08. PW 4, Sri Khagen Roy, identified the accused-appellant in the dock and stated that on the date of the occurrence as the wife of the deceased raised alarm, he rushed to the Shiva Temple and found her (wife of the deceased) weeping by holding his (deceased) head on her lap. The witness affirmed to have seen cut injuries on the hand, head and neck of the deceased. The witness stated that in his presence, the accused- appellant disclosed before the police that he had assaulted the deceased with a dao. This witness also identified the dao and the pair of sandals seized by the police as Mat. Exts. 1 & 2.
09. Following are the injuries identified by PW 5, Dr. Dilip Kumar Sarmah, who had performed the autopsy over the dead body: -
"Injuries.
1) One lacerated wound of size - 4" x 1" x 1" on the lateral aspect of left arm injuring muscles and blood vessels and it is placed above downwardly.
2) One lacerated wound in the back of size - 3" x 1" x 1" on the right side of back involving skin and muscles.
3) One incised wound of size - 3" x 3/4" x 3/4" obliquely on the right side of face above downwards. There is fracture of maxilla and right temporal bone.CRL. A. NO. 14(J)/2006 Page 4 of 9
4) One incised wound in the left side of neck obliquely above downwards from the level of thyroid cartilage of size - 4" x 1" x 1" injuring the vessels on the left side of the neck.
5) Fracture of right temporal bone and maxilla."
This witness opined that death was due to haemorrhage leading to shock as a result of intracranial and other soft tissue injuries sustained by the deceased. He proved the report Ext. 2.
10. The testimony of the witnesses, PW 6, PW 7, PW 8, PW 9 and PW 10, namely, Sri Ramen Rajput, Sri Bisuwa Goala, Sri Naren Kurmi, Sri Uday Roy and Smti. Mosumi Goala being not of any added significance is not being referred to in details.
11. PW 11, Sri Ganesh Konwar, is the Investigating Officer, who, in course of his deposition narrated the steps taken by him in course of the investigation. He, amongst others, proved the sketch map prepared by him, vide Ext. 5. He also proved the seizure of the dao, Mat. Ext. 1 and a pair of sandals, Mat. Ext. 2.
12. The learned Amicus Curiae has strenuously urged with reference to the sketch map, Ext. 5, that having regard to the topography of the place of the occurrence, as projected thereby, the incident, as presented by the informant, the wife of the deceased, is a highly improbable one and on that ground alone the case of the prosecution ought to have been rejected as untrustworthy. According to Mr. Banik, having regard to the location of the PWD road on which allegedly the incident had taken place, the deceased CRL. A. NO. 14(J)/2006 Page 5 of 9 either before or in the process of being assaulted was expected to have shouted for help and, thus, the absence of any eye-witness other than his wife renders the prosecution case unworthy of any credit. The learned Amicus Curiae has further urged that the evidence of PW 2, per se, does not disclose any extra-judicial confession on the part of the accused-appellant owning his guilt. The testimony of PW 4, Sri Khagen Roy to this effect, as well, is of no avail in view of the presence of the police at the relevant point of time. According to him, the version of PW 1, the wife of deceased, is also unreliable in view of its inconsistency with the findings in the post mortem report, more particularly, the injures said to have been borne by the dead body. The learned Amicus Curiae urged as well that as most of the injuries so found were lacerated wounds, this wholly belied the use of dao as a weapon of assault, thus, striking at the substratum of the prosecution case. That the accused-appellant had at no point of time made any confession whatsoever admitting his guilt, is apparent from the answers provided by him in course of his statement under section 313 Cr.P.C, he urged.
13. Mr. Das, per contra, has urged that there being no reason to disbelieve the credibility of PW 1, the wife of the deceased, whose testimony corroborates in all material particulars, the information lodged by her with the police, the learned trial court was perfectly justified in convicting and sentencing the accused-appellant and, thus, no interference with the impugned judgment and order is called for. That the testimony of PW 1, Smti. Niva Gowala gets ample support from the evidence of PW 2, Sri Gensa CRL. A. NO. 14(J)/2006 Page 6 of 9 Mura and PW 4, Sri Khagen Roy, has been highlighted. According to the learned Addl. Public Prosecutor, Assam, the evidence of PW 1, Smti. Niva Gowala, PW 2, Sri Gensa Mura and PW 4, Sri Khagen Roy read with that of PW 5, Dr. Dilip Kr. Sarma fully proves the charge against the accused- appellant beyond all reasonable doubt and, therefore, the conviction and sentence recorded against him ought to be sustained in the interest of justice.
14. We have extended our due consideration to the materials on record as well as the arguments advanced. To start with, the FIR in clear terms discloses the place of incident as well as the identification of the assailant and the assaulted. The informant, the wife of the deceased, at the first instance, had in categorical terms informed the police that it was the accused-appellant, who had assaulted her husband, who was then engaged in worship in the Shiva Temple located near their house by dragging him out therefrom to the PWD road by inflicting cut injuries on him. The narration of the incident as recited by her at the trial on oath is substantially a replication of the one in the FIR. That the accused-appellant, according to her, had hacked her husband with a sharp cutting weapon was mentioned by her in the FIR and reiterated in express terms in her deposition in the Court. She was candid enough also to mention that at that point of time there was no animosity between the deceased and the accused-appellant and that she wondered as to why the latter had assaulted the former. The evidence of PW 2, Sri Gensa Mura, who is not an eye-witness to the incident read as a CRL. A. NO. 14(J)/2006 Page 7 of 9 whole, lends support to the version of PW 1, Smti. Niva Gowala about the incident. According to this witness, the accused-appellant had visited his house after the occurrence shortly and had laid at his feet a blood stained dao and had informed him that an incident had taken place at the Shiva Temple, the location mentioned by the wife of the deceased in the FIR. That such an incident had occurred near the Shiva Temple and that the injured husband of the informant with cut injuries on his body had been removed to the hospital, where he succumbed to the injuries, is a proved fact. The seizure of the dao produced by the accused-appellant before the PW 2, Sri Gensa Mura has also been duly proved by the prosecution. That, it was blood stained at the relevant point of time as disclosed by PW 2 is also a disclosure, which cannot be lightly ignored. The evidence of PW 5, Dr. Dilip Kr. Sarma discloses that at the time of post mortem examination he, found 5 injuries, including 2 lacerated wounds, 2 incised wounds and a fracture of right temporal bone and maxilla, which, in our view, accord with the weapon of assault and the evidence in support of the complicity of the accused- appellant. Though, the learned Amicus Curiae has laboured hard to contend that having regard to the orientation of the PWD road on which, allegedly, the incident had taken place, the occurrence as projected is highly improbable, having regard to the overwhelming materials on record and in absence of any reason to disbelieve the PW 1, the wife of the deceased, we are not convinced to sustain this plea. Non-availability of other eye- witnesses so early in the morning is also not a very unusual phenomenon. The retraction of the accused-appellant in his statement under section 313 CRL. A. NO. 14(J)/2006 Page 8 of 9 Cr.P.C from his role immediately after the incident as disclosed by PW 2, in our estimate, is not adequate enough to extend any benefit of doubt to him.
On a totality of the considerations as above, we are, thus of the view that the impugned judgment and order is in accordance with law and does not require any interference at this end. The appeal, therefore, has no merit and is, accordingly, dismissed.
15. We part by recording our appreciation for Mr. S Banik for his role as the Amicus Curiae in the instant appeal and direct payment of his professional fee, which we quantify at Rs. 5000/- to be made by the State Government forthwith.
JUDGE JUDGE
beep/-
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