Gauhati High Court
Indreswar Deori vs The State Of Assam on 22 August, 2013
Bench: I. A. Ansari, Indira Shah
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MIZOAM &
ARUNACHAL PRADESH)
Criminal Appeal (J) No. 49/2009
Sri Indreswar Deori
- Appellant
- Versus -
State of Assam
- Respondent
Advocates present:
Amicus curiae : Mr. R. K. Bharali,
For the Opposite party : Ms. S. Jahan,
Addl. Public Prosecutor, Assam.
CRIMINAL APPEAL NO. 201 OF 2010
Indreswar Deori
...............Appellant
- Versus -
The State of Assam
.......Respondent
Advocate for the appellant :- Mr. D. P. Chaliha, Sr. Advocate
Advocate for the respondent :- Ms. S. Jahan, Addl. P.P., Assam
PRESENT
HON'BLE MR JUSTICE I A ANSARI
HON'BLE DR. (MRS.) JUSTICE INDIRA SHAH
Date of hearing : 29.07.2013
Date of judgement : 22.08.2013
JUDGEMENT AND ORDER
(Ansari, J)
By judgment and order, dated 14.05.2009, passed, in Sessions Case No. 71(S-S) of 2007, by the learned Additional Sessions Judge, FTC, Sivsagar, the accused-appellant, Indreswar Deori, stands convicted under Section 302 IPC and sentenced to suffer imprisonment for life and pay fine of Rs.3,000/- and, Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010 in default of payment of fine, undergo imprisonment for a period of six months.
2. The case of the prosecution may, in brief, be described as under:
(i) Deceased, Raju Doley, was adopted by Guna Kanta Deori (PW1) as his son and used to live in the house of PW1.
(ii) On 25.04.2007, at about 3 pm, Anup Deori @ Tel Deori (PW2) and Hiteswar Deori (PW4), accompanied by Raju Deori (since deceased), went to Kareng Chapori (i.e., a plot of land surrounded by marshy land or water bodies), in search of a missing buffalo belonging to one Dibya Deori.
Having found the buffalo, as the three boys felt thirsty, they went to the khuti (i.e., a place where buffalos are herded and kept together at night) belonging to Dibya Deori, at Kareng Chapori, to quench their thirst. At that time, they noticed accused Indreswar Deori (i.e., the accused-appellant) sleeping inside a hut, located at the said khuti.
(iii) On having drunk water, at the said khuti, when the said three boys were coming out, the accused woke up, rushed to the boys and, saying 'stop, stop', and dealt a blow, on the neck of Raju, with a dao. At the time, when the accused so gave blow on the neck of Raju, Raju was behind PW2 and PW4. Having heard the accused saying, 'stop, stop', when PW2 and PW4 turned back, they saw accused dealing blow on the neck of Raju.
(iv) Upon receiving the blow, Raju sat down with a scream and the accused went back to the khuti taking the dao in his hand. PW2 and PW4 rushed to Raju, fastened his injury by means of a gamocha (a country towel) to prevent bleeding. Though PW2 and PW4 raised hue and cry, none came. However, after a short while, one Haj Deori alias Hareswar Deori (DW1), who was at another khuti, arrived there and gave them a dhoti and, using the said dhoti as a stretcher, PW2 and PW4 carried the injured from Kareng Chapori by Page 2 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010 crossing a stream, which had knee deep water, and took Raju to Raju's house by putting him on a handcart. While Raju was being put on the handcart, he was still breathing, but on the way to his house, Raju died and, on arriving at Raju's house, PW2 and PW4 informed Guna Deori (PW1), who had adopted Raju as his son, about the occurrence. A lot of people had gathered at Guna Deori's house and one Jiten Deori, VDP Secretary (PW3), informed over phone, on 25.04.2007, itself, Golap Gogoi, ASI, Nitai Pukhuri Police Outpost (PW11), that Indreswar Deori had hacked to death Raju Deori with a dao.
(v) On receiving the information, PW11 (Golap Gogoi) reduced the information, so received, in the form of General Diary Entry No. 411, dated 25.04.2007 (i.e., Ext. 9), and came to the house of Guna Deori, where the dead body of Raju Doley was found lying in its courtyard and took away Raju's dead body, held inquest over the said dead body, which was also subjected to post mortem examination.
(vi) After police had already started their investigation, Guna Deori lodged an Ejahar (Ext.1) at Dimow Police Station and, treating the same as First Information Report (in short, FIR), Dimow Police Station Case No.30/2007, under Section 302 IPC, was registered against the accused. During the progress of investigation, accused Indreswar Deori surrendered at Dimow Police Station, on 25.04.2007 at 6-55 PM, and informed the Officer-in- Charge, Dimow Police Station, that he had kept hidden the machi dao with which he had killed Raju Doley in his own house and that he could lead the police to that place and produce the said dao. Based on the oral information, so given by the accused, Indreswar Deori, additional statement of the accused was recorded at Dimow Police Station, which is Exhibit 11. A General Diary Entry No. 548 dated 25.04.2007 (Exhibit 7), was made at Dimow Police Station in connection with the surrender of the accused. Acting upon the Page 3 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010 information, so given by the accused, Indreswar Deori, and led by the accused himself, police came to the house of the accused, where he produced the weapon of offence (i.e., the dao), which had, in the meanwhile, been washed. This dao (Material Exhibit. 1) was, then, seized by seizure list (Ext. 2).
3. At the trial, when a charge, under Section 302, was framed against the accused, he pleaded not guilty thereto.
4. In support of their case, prosecution examined altogether 13 (thirteen) witnesses. The accused was, then, examined under Section 313 Cr.PC and, in his examination aforementioned, the accused denied that he had committed the offence, which was alleged to have been committed by him, his case being that of denial. The defence projected multiple versions of the occurrence, which may be set out as under:
(a) On the day of the occurrence, three boys, namely, Raju Doley (since deceased), Tel Deuri (PW2) and Hiteswar Deuri (PW4), entered into the khuti aforementioned and, after drinking water, they made merry and when the accused asked them to leave, Raju attacked the accused by means of a lathi and, in order to save himself, the accused 'had to' cut Raju.
(b) On the day of the occurrence, three boys, namely, Raju Doley (since deceased), Tel Deuri (PW2) and Hiteswar Deuri (PW4), entered into the khuti aforementioned and, upon taking milk there, they tried to burn down the hut, where the accused was sleeping. As the accused tried to prevent them from doing so, Raju attempted to assault the accused by means of a lathi. The accused, then, brandished a dao in front of the lathi and, in that process, the dao slightly cut Raju's neck. Hitesh Deori (PW4) and Tel Deori (PW2) came to the place and fastened Raju's injury with a gamocha. The accused, then, left the place and reported to Haz alias Hareswar Deori (DW1) that Raju had attacked him (i.e., the accused) and the accused hurled a dao on Raju, the dao Page 4 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010 happened to hit Raju on his neck and, on going near him, 'the accused found Raju dead'.
(c) On the day of the occurrence, while the accused was sleeping inside the hut, three boys entered into the hut and started throwing articles kept inside the hut and when the boys tried to burn down the hut taking a jerrycan of kerosene, he woke up and hacked one of the boys with the dao by hurling the dao on the boy (i.e., Raju).
(d) On the day of the occurrence, while the accused was sleeping, three boys had come, demanded something and when he chased the boys, two of them ran away, but one of them retorted and, picking up a dao, which was lying nearby, the accused hurled the dao on the boy, the boy fell down and, on going close to the boy, the accused noticed that the boy (Raju) had died.
(e) One Miri boy (Raju Doley), residing in the house of Guna Deori, had tried to burn the khuti of Dibya Deori and that when the accused threatened the boy, the boy raised a lathi and the accused hurled a dao towards the boy and, on being reported about the occurrence by the accused, when DW1 asked if anything untoward had happened, the accused replied that he did not know what had happened to the boy; whereupon DW1 rushed to the khuti of Dibya Deori and found the Miri boy sitting there and his two companions were taking care of the Miri boy. A gamocha was wrapped around the neck of the Miri boy, which was wet with blood, and the Miri boy was not in a position to talk. On being asked, the boys said that when they tried to set fire on the khuti, just for fun, the accused threatened them and only when the Miri boy took a lathi, the accused hurled a dao at him in retaliation, which caused injury on the neck of the Miri boy (i.e., Raju).
(f) On the day of the occurrence, three boys, namely, Raju Doley (since deceased), Tel Deuri (PW2) and Hiteswar Deuri (PW4), entered into the khuti Page 5 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010 aforementioned, they drank water and demanded milk or else they would ignite the hut. Raju took kerosene oil from the bottle, filled the kerosene into his mouth and ignited the kerosene with a match-stick, while blowing the kerosene from his mouth. The accused chased the boys, Raju went out, picked up a lathi from the pile of the firewood and attempted to assault the accused and as the accused brandished the dao, the front portion of the dao hit Raju's neck slightly.
5. Having, however, found the accused guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused, as a convicted person, has preferred this appeal.
6. We have heard Mr. R. K. Bharali, learned counsel, as amicus curiae, in Criminal Appeal No.49(J) of 2009 and Mr. D.P. Chaliha, learned counsel, for the appellant, in Criminal Appeal No.201 of 2010. We have also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam.
7. While considering the present appeal, it may be noted, at the very outset, that it has not been in dispute that PW6 was the doctor, who had, on 26.04.2007, performed post mortem examination on the dead body of Raju Doley and found as follows:
"External appearance : An average built boy about 15 years old, Hindu, rigor mortis present.
Wound : A sharp wound at the base of the left side of the neck exposing the great vassals with cut ends and underlined tissues. The cut was obliquely placed with the size 5" x 4" x 4".
Cranium and spinal canal : Scalp, skull, vertebrae, membrane, brain and spinal cord all are pale.
Thorax : Both the chambers of the heart were empty and other organs were pale.
Page 6 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010 Abdomen : Wall of the abdomen, peritoneum, mouth pharynx and oesophagus were pale. Stomach was empty. Small intestine contains semi digested food material large intestine contains gas and faecolith. Organs like spleen, kidneys were pale. Bladder was empty.
Organs of generation both - external and internal were normal. Muscles, bones and joints : Injury disease or infirmity, fracture or dislocation was absent."
8. It is in the evidence of the doctor (PW6) that the cause of death was syncope shock and hemorrhage as a result of the injury sustained by the deceased. The doctor has also opined that the injury, described above, was sufficient to cause death of a person in the ordinary course of nature.
9. The defence has declined to cross-examine the doctor (PW6).
10. The above findings of the doctor and his opinion, with regard to the cause of death, having been not disputed by the defence, has remained undisputed and unchallenged. This apart, even we, too, do not notice anything inherently incorrect or improbable in the evidence so given by the doctor. We are, therefore, of the view that Raju Doley sustained injury, as has been described above, and that his death was caused due to shock and hemorrhage as a result of the injury sustained by him.
11. What further follows from the medical evidence on record is that contrary to the claim of the defence that when the accused-appellant had brandished the dao, the front portion of the dao slightly cut Raju's neck, the doctor (PW6) has found that the wound was at the base of the left side of the neck, which had been caused with great force so much so that the wound had exposed the great vassals with cut ends and underlined tissues and the cut was obliquely placed with size 5" x 4" x 4". The medical evidence on record, thus, belies the version, which the accused-appellant had put, as one of his defences.
Page 7 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010
12. Bearing in mind the medical evidence on record, when we turn to the evidence of the prosecution witnesses, we find that prosecution examined PW2 (Anup Deori) and Hiteswar Deori (PW4) as eye witnesses to the alleged occurrence, their evidence being of immense importance, need to be carefully scrutinised.
13. According to the evidence of PW2, on the day of the occurrence, at about 11-30 AM, he (PW2), along with Raju (since deceased) and Hiteswar Deori (PW4), went to Kareng Chapori, also known as Dhanti Chapori, in search of a missing buffalo belonging to Dibya Deori.
14. It is in the evidence of PW2 that though they found the buffalo, yet, because of the fact that they felt thirsty, they went to the khuti (i.e., the place, where buffalos are kept herded) belonging to Dibya Deori and when they entered into the khuti, they found accused, Indreswar Deori, sleeping inside the khuti. It is also in the evidence of PW2 that having taken water, when they were coming out of the khuti, accused woke up and dealt a blow on the neck of Raju Deori with a dao saying, 'stop, stop'.
15. PW2 has clarified, in his evidence, that having heard the voice of the accused saying, 'stop, stop', when he (PW2) turned back, he saw the accused giving blow by means of a dao on Raju and, upon receiving the blow by the dao, Raju screamed and sat down and the accused went back to the khuti taking along with him the dao.
16. It is further in the evidence of PW2 that he and Hiteswar (PW4) rushed to Raju, fastened a gamocha (a country towel) around the injury in order to prevent bleeding and they also raised hue and cry, but nobody came as none was nearby. However, according to the evidence of PW2, after a short while, one Haj Deori (DW1), who, too, has a khuti, arrived there and gave them Page 8 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010 (PW2 and PW4) a dhoti and, using the said dhoti as a stretcher, they (PW2 and PW4) carried Raju to Singiani village from Kareng Chapori by crossing the knee deep water of a stream.
17. PW2 has deposed that having crossed the stream, they carried Raju to his house by putting him on a handcart and while they were putting Raju on the handcart, though Raju was still alive, he died before they arrived at the house of Guna Deori (PW1), who, we shall show, had adopted Raju as his son.
18. PW2 has also deposed that lot of people gathered at Guna Deori's house and Jiten Deori (PW3), VDP Secretary, informed, over phone, Golap Gogoi, ASI, Nitai Pukhuri Police Outpost (PW11), about the occurrence, police came and took away Raju's dead body.
19. PW2 has further deposed that on the following day, police, again, came to their village along with the accused, they went to the house of the accused and, on being produced by the accused, police seized, vide Seizure List (Ext. 2), a dao, which was used at the time of the occurrence. PW2 has added that Mat. Ext.1 is the said dao.
20. Broadly in tune with the evidence of PW2, PW4 has deposed that he, along with Anup Deori (PW2) and Raju (since deceased), went to Dhanti Chapori in search of a missing buffalo belonging to Dibya Deori and, upon finding the buffalo, when they went to the khuti of Dibya Deori, they saw accused Indreswar Deori sleeping there.
21. It is in the evidence of PW4 that they drank water there and, then, he (PW4) and Anup (PW2) went out of the khuti and, at that time, Raju was inside the khuti and when they proceeded a little, they heard someone saying, "stop, stop" and when he (PW4) looked back, he saw the accused dealing a blow by means of a dao on Raju's neck.
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22. PW4 has also deposed that he (PW4) and Anup (PW2) rushed to Raju, Raju took his gamocha (i.e., country towel) and fastened his injury and as they were bringing Raju holding him, Raju could not proceed further and, upon covering a small distance, Raju sat down and, at that time, their co-villager, Hiteswar Deori (DW1), gave them a dhoti and, using the said dhoti as a stretcher, they carried Raju through the river and, then, put Raju in a handcart and, then, took Raju to Raju's house, but before reaching his house, Raju breathed his last.
23. PW3 has further deposed that police came to investigate the case and police also seized, from the house of the accused, the dao used in the incident, Ext.1 being the Seizure List and Mat. Ext.1 being the said dao.
24. PW2 and PW4 were both cross-examined by the defence. From their cross-examinations, nothing could be elicited by the defence to show that what they had deposed was untrue or false. In fact, while it was suggested by the defence to PW2 and PW4 that they were not aware as to who had cut Raju, it was, at the same time and in the same breath, suggested to PW2 that Raju had attacked the accused and, in order to save himself, the accused 'had to cut' Raju.
25. Moreover, while cross-examining PW2, it was suggested to PW2, as already indicated above, that Raju had attacked the accused and that the accused 'had to cut' Raju in order to save himself, it is noteworthy that no such suggestion was even offered to PW4, though the defence did not dispute that PW2 and PW4, together with Raju, had gone to the said khuti and while they were returning, Raju sustained cut injury on his neck.
26. The evidence of PW2 and PW4 have, thus, remained unshaken in cross- examination. This apart, when it was not even suggested to them that they had given false evidence to the effect that when they were coming out of the Page 10 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010 khuti, they heard the accused saying, "stop, stop", and when they looked back, they saw the accused dealing blow, by means of dao, on Raju, the evidence of these two prosecution witnesses must be treated as unshaken.
27. Coupled with the above, when one considers the evidence on record, in the light of the above unshaken evidence of PW2 and PW4, what adds to the credibility of these two witnesses is that while cross-examining PW2, it was suggested by the defence to PW2 that the accused had to kill Raju in order to save himself, because Raju had attacked the accused. This defence was, however, wholly abandoned by the accused, when the time to cross-examine PW4 arrived inasmuch as the defence did not offer any such suggestion to PW4. Far from this, the suggestion, which was offered to PW4 by the defence, and denied by PW4, was that he had not seen as to who had cut Raju Doley. Further-more, the accused had not, admittedly, sustained any injury and there is nothing in the evidence on record to show that he had been attacked by Raju.
28. Close on the heels of the evidence of PW2 and PW4, PW3 (Jiten Deori), VDP Secretary, supporting the evidence of PW2, has deposed that when he was, on the day of the occurrence, standing on the embankment near his house, he saw Filter Deori, Anup Deori and Jakhmal Deori carrying a boy, whom they used to call Kowa @ Raju in a handcart, and, on seeing the boy (i.e., Raju), he went close to the boy and, on making enquiry, PW2 and others replied by saying that the accused had hacked Raju by means of a dao at Dhanti Chapori and, thereafter, Kowa, i.e, Raju, was taken to Guna Deori's house.
29. Situated thus, it becomes clear that promptly after the occurrence, the name of the accused-appellant had surfaced as the assailant of Raju.
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30. In his evidence, PW3 has clarified that when he saw Raju, Raju was already dead and he also noticed a cut injury on the left side of Raju's neck. It is in the evidence of PW3 that as hue and cry were raised at the house of PW1 (Guna Deori), many other people gathered there and he (PW3), over phone, informed Nitai Pukhuri Police Outpost about the occurrence, police came, inspected the dead body and took away the dead body.
31. Though PW3 was put to cross-examination, his evidence has not been disputed by the defence and, from the evidence of PW3, it clearly transpires that on seeing Raju being carried in a handcart, when he (PW3) made enquiry from PW2 and PW4, he (PW3) was told that the accused had cut Raju by means of a dao at Dhanti Chapori and he (PW3) accordingly informed, over phone, Nitai Pukhuri Police Outpost.
32. We may pause, at this stage, to point out that lending support to the evidence of PW3 (Jiten Deori), PW11, who has investigated the case, has deposed that while serving as In-Charge, at Nitai Pukhuri Police Outpost, which falls under Demow Police Station, he received, on 25.04.2007, at about 4.30 pm, an information, on phone, from Jiten Deori (PW3), VDP Secretary, Singiani Deori Village, that Indreswar Deori had hacked a boy called Raju by means of a dao to death and, upon receiving this information, he made an entry, in this regard, in the General Diary, which is General Diary Entry No.411, dated 25.04.2007. This G.D. Entry has been proved by PW11 as Ext.9.
33. It is in the evidence of PW11 that on the basis of the information, so received from PW3 (Jiten Deori), he (PW11), as the Investigating Officer, went to Singiani Village and found Raju's dead body lying in the courtyard of Guna Deori (PW1) and brought Raju's dead body to the police station, because night had fallen and there was no adequate arrangement of light.
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34. What is important to note, in the evidence of PW11, is that according to him, he received an information that the accused had already surrendered at Demow Police Station and he (PW11) interrogated the accused at the Police Station itself and that he got inquest held, on the dead body of Raju, on 26.04.2007 and, then, the said dead body was sent for post mortem examination.
35. In his evidence, PW11 has also deposed that having taken the accused into police remand for two days, when he interrogated the accused, the accused stated that he would produce the dao, which he used in the incident. This statement, which has been proved as Exhibit 11, reads, "In addition to my earlier statement, I further state that I have kept hidden the machi dao with which I had killed Raju Doley in my own house. I can lead the police to that place and produce the said dao."
36. Even if the first sentence, reproduced above, is kept excluded from the purview of our consideration, the second sentence, which was in the statement of the accused-appellant, while he was in police custody and interrogated by the Investigating Officer (PW11), was that he could lead the police to the place and produce the dao.
37. It is further deposed by PW11 that the accused took him to the house of the accused at Singiani village and, on the accused producing the dao, he (PW11) seized the dao vide Seizure List, which is Ext.2, Mat. Ext.1 being the said dao.
38. Nothing of significance could be elicited by the defence by cross- examining PW11. In fact, it was not even disputed, while cross-examining PW11, that he had seized the dao on being produced by the accused. This apart, PW11 has also clarified that the dao was not sent to Forensic Science Laboratory for examination, because the dao had already been washed.
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39. If the evidence of PW2 and PW4 are considered, in the light of the evidence of PW3 and PW11, what clearly transpires is that PW4, along with Anup Deori (PW2) and Raju (since deceased), went to Dhanti Chapori in search of a missing buffalo belonging to Dibya Deori and, upon finding the buffalo, when they went to the khuti of Dibya Deori, they saw accused Indreswar Deori sleeping there. It is in the evidence of PW4 that they drank water there and, then, he (PW4) and Anup (PW2) went out of the khuti and, at that time, Raju was inside the khuti and when they proceeded a little, they heard someone saying, "stop, stop", and when they (PW2 and PW4) looked back, they saw the accused dealing a blow, by means of a dao, on Raju's neck.
40. Close on the heels of the evidence of PW2, PW3, PW4 and PW11, PW1, who, admittedly, had adopted Raju as his son, has deposed that Raju's dead body was brought home at about 3 to 4 pm in a handcart and when he asked as to what had happened, he was told that Raju had gone, with two others, in search of a missing buffalo belonging to Dibya Deori and, upon finding the buffalo, they had gone to the khuti, belonging to Dibya Deori, to drink water and when they had been making fun by shouting, accused, who had been sleeping in the said khuti, chased them with a dao and dealt a cut blow on Raju's neck, many people gathered in his (PW1's) house, somebody informed the police at Nitai Pukhuri Police Outpost, police came there and, on arrival of the police, he (PW1) lodged an Ejahar at Demow Police Station, Ext.1 being the said Ejahar.
41. In the cross-examination, PW1 had clarified that he had seen a cut injury on the neck of Raju. Even the evidence of PW1 has remained unshaken in cross-examination.
42. From the cross-examination of PW1, it also transpires that before he lodged the Ejahar at Demow Police Station, police had already arrived at the Page 14 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010 house of PW1 on the basis of the information already received by Nitai Pukhuri Police Outpost from PW3. From the evidence of PW3 and PW11, it also becomes transparent that the information, as regards the occurrence, was received, at Nitai Pukhuri Police Outpost, over phone, by PW11 from PW3, VDP Secretary of the village concerned, and the information, so received by PW11, over phone, from PW3 was, and ought to have been treated, as the First Information Report and not the Ejahar, which had been lodged by PW1 long after the investigation into the case, in the light of the evidence discussed above, had already commenced.
43. Be that as it may, the evidence of PW5 is not of much value inasmuch as he has merely deposed that he was told by Guna Deuri (PW1), who had, as we have already mentioned above, adopted Raju Doley as his son, that Indreswar had cut his son, Raju, and that hearing the news of Raju's death, many of their co-villagers came to the house of Raju and that even police came there. Though PW5 is a witness to the seizure, he has clarified, in his cross-examination, that he had not seen the place from where the police seized the dao.
44. So far as PW7 (Anudh Mahali) is concerned, his evidence is that on the day of the occurrence, he went, along with Rajib Bharali, president of the VDP, to Demow Police Station for some work and when they arrived at the police station, they heard the accused reporting to the police that while he (accused) was sleeping in the hut, three boys had entered into the hut and started throwing articles kept inside the hut and when the three boys tried to burn down the hut by taking jerrycan of Kerosene oil, he woke up and hacked one of the boys with dao by throwing the dao at one of the boys and, Page 15 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010 on being asked by the police if he (accused) would produce the dao, the accused told the police that he would.
45. What is important to note, while considering the evidence of PW7, is that he was declared hostile and cross-examined by the prosecution. In his cross-examination, PW7 denied to have not stated before the police that three boys had tried to burn down the hut after throwing the articles kept inside the hut. The Investigating Officer (PW11) has, however, proved the said omission in the statement of PW7.
46. In the light of the statement, which PW7 had made during investigation, his assertion, now, at the trial, cannot be easily believed in or relied upon.
47. Apart from the fact that PW7 is not a reliable witness, it is, for the first time, in the evidence of PW7 that a claim was made that the said deceased and his associates had tried to burn the hut of the accused and the accused hurled the dao injuring Raju.
48. To put it a little differently, while PW2 and PW4, who claimed to be the eye witnesses to the occurrence, were cross-examined by defence, the defence did not even whisper that Raju, PW2 and PW4 had tried to burn down the hut, in question.
49. At any rate, even if the evidence of PW7, given in the Court, is momentarily believed, it becomes clear that the accused, according to PW7, had not made any confession, because he had not owned up any guilt; rather, he made exculpatory statement. However, in the process of making exculpatory statement, the accused did admit that three boys had entered into the khuti and that the accused had hacked one of the boys with dao by throwing the dao at one of the boys and, on being asked by police, if he would produce the dao, the accused told the police that he would.
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50. The admissions of the accused, as claimed to have been made by PW7, are admissible in evidence and the admissions, so made by the accused- appellant, clearly show that the dao, which the accused, eventually, produced, was the dao with which the accused had hacked Raju Deori. Whether the accused had hurled the dao, which happened to hit Raju, or the accused had deliberately dealt a blow on Raju, by means of a dao, remains the question to be answered.
51. With regard to the above, the unshaken evidence of PW2 and PW4 shows that on hearing the accused saying, 'stop, stop', when they turned back, they saw the accused giving a blow on the neck of Raju, Raju cried out of pain and the accused went back to his hut holding the dao in his hand.
52. PW8, Rajib Bharali, has deposed that he, along with Anudh Mahali, went to the police station and when they reached there, they saw the accused and another person and the accused told the Officer-in-Charge, Demow Police Station, that while he (accused) was sleeping, three boys had come and demanded something and when he chased the three boys, two of them escaped and one of them retorted, whereupon he (i.e., accused), taking a dao, lying nearby, hurled the dao to the boy, the boy fell down and, on going closer, the accused noticed that the boy had died and, then, he (accused) threw away the dao and that he would be able to produce the dao from the place, where he had thrown it.
53. In his cross-examination, PW8 has clarified that he and Anudh Mahali (PW7) were together at the time, when the accused was making the said statement.
54. Thus, the evidence of PWs7 and 8 are required to be considered together and, when the evidence, given by PW7 and PW8 are considered together, it becomes clear that their evidence do not stand together, because Page 17 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010 their evidence are mutually destructive of each other inasmuch as while PW7 has stated that he had heard the accused saying that three boys had entered into the hut of the accused and started throwing the articles and when they tried to burn down the hut by taking the jerrycan of kerosene, he woke up and, by throwing a dao, he had hacked one of the boys and threw away the dao and, on being asked by police, the accused told that he would produce the dao, PW8 has claimed that he heard the accused reporting to the police that while he (accused) was sleeping, three boys came into his hut and demanded something and when he chased the boys, one of them retorted and, in retaliation, he (accused) picked up a dao, lying nearby, and hurled the dao at the boy, the boy fell down and, on going near the boy, he (i.e., the accused) found that the boy (i.e., Raju) had died.
55. A close scrutiny of the evidence of PW7 and PW8, as we have already indicated hereinbefore, clearly shows that their evidence, describing as to what the accused was heard by them reporting to the police, are wholly inconsistent and cannot be at all relied upon. However, their evidence discloses an admission, the admission being that it was the accused, who happened to have hacked Raju by throwing dao on Raju. It is also worth noticing that this admission is exculpatory in nature. An admission, which is exculpatory but relevant, is admissible in evidence inasmuch as it is a confession, if made to a police officer, which is inadmissible in law and not the admission of any fact before a police officer.
56. Thus, the fact that the injury, on the neck of Raju, was caused by the accused stands fully admitted and if this admission is considered in the light of the unshaken evidence of PW2 and PW4, it clearly emerges that it was the accused-appellant, who had hurled the dao on Raju. Far from this, the accused, according to the evidence on record, intentionally gave a blow by Page 18 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010 means of dao on the base of the neck of Raju causing such an injury, which was enough to cause death. The defence version (as discernible from the suggestions offered to PW2) that Raju had tried to assault the accused- appellant by means of a lathi and the accused 'had to' cut Raju in order to save himself is, therefore, a fabricated story, which cannot be believed. This apart, the various versions, adopted by the accused, in defence of his case, have been so inconsistent and mutually destructive of each other that these defence versions cannot but be described as an admixture of half-truth and untruth and, on such versions, no reliance can at all be placed.
57. Coupled with the above, it is the unshaken evidence of PW2 and PW4 that Raju sustained injury on his neck, he was brought to some distance by using a dhoti as a stretcher and, then, crossing a stream, Raju was put in a handcart and, till then, Raju was alive, but he died soon thereafter and his dead body was carried to his home. In the face of these pieces of unshaken evidence, the evidence, given by PW8, to the effect that the accused found Raju dead was wholly false and untrue. This apart, we have already indicated hereinbefore the inherent inconsistencies with which stand embedded the evidence of PW7 and PW8. No reliance can, therefore, be placed on the evidence of PW7 and PW8 with regard to what they had heard the accused- appellant telling the police at Dimow Police Station.
58. Coupled with the above, as far as PW10, Officer-in-Charge, Demow Police Station, is concerned, he has deposed that he registered the case on the basis of the Ejahar lodged by Guna Deuri (PW1) and that on the night of the occurrence, the accused came to the police station and surrendered there by saying that he (accused) had killed Raju Doley and that an Entry was made, in this regard, at the said police station, the Entry being GD Entry No. 458, Page 19 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010 dated 25.04.2007. This Entry has been proved as Exhibit-7. The contents of Exhibit-7 are reproduced below:
" AT 8 PM Entry regarding arrival of o/c No. - 548 Along with staff and appearance of The accused in the PS. Now, I, K. Chetia, SI, the O/C, accompanied by my staff arrive at Dhanti Chapori following an incident of a murder and take along the dead body of Raju Dolay alias Utpal Dolay, the victim after observing all the formalities thereof and having returned back to the PS, remain in Charge. Be it mentioned here that accused Indreswar Deuri, S/o Lab Deuri, a resident of Singiani Gaon under Dimow Police Station who caused the death of Raju Dolay by hacking in his neck with a dao has already surrendered in the Police Station. He makes his confessional statement before the Investigation Officer as well as the people present as follows:
'Today, at around 3-00 PM, while I was sleeping at the hut of Divya Deuri buffalo khuti, three boys entered into the hut of the buffalo Khuti and drank cold water from the kettle kept in the shelf without waking me up. They took the bottle containing Kerosene kept at the hut and filling Kerosene Oil in their mouth, they tried to burn down the hut with a match stock by blowing Kerosene from mouth. In the meantime, I woke up and when I asked the three boys why they were doing so, Raju Dolay of them retorted. Then, I burled the dao in my hand to Raju Dolay and it hit on his neck. I do not know how much he was cut and whether he is dead or not. I left for Police Station after the incident.' Accordingly, I make an entry in the diary about the statement, which accused Indreswar has delivered in person and Indreswar has been taken to Police custody under the surveillance of a Police Constable. The statement of accused Indreswar Deuri has been recorded by Investigating Officer in presence of the public present there.
Sd/- Kumud Chetia, S.I., Officer-in-Charge, Dimow Police Station, 25.04.07."
59. PW10 has also deposed that on 27.04.2007, in the morning, the accused stated that he would show the dao, whereupon he (PW10), again, made Page 20 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010 another Entry in the General Diary, which is GD Entry No. 585, and this Entry has been proved has Exhibit-8, which reads as follows.
"At 10 A.M. Departure of ASI along with his staff and the accused to the place of occurrence.
Now, Golap Singh, ASI, Nitai Pukhuri Out Post along with the staff of the Post and APBN. Party receives the custodial accused Sri Indreswar Deuri in connection with Case No. 30/07, U/S 302 of IPC and proceeds to Dhanti Chapari with a view to recovering the dao used by the accused in the incident. Be it mentioned here that while the accused was being interrogated by the Investigating Officer, he admitted that he would produce the dao used by him in killing Raju Dolay.
Sd/- Kumud Chetia, S.I., Officer-in-Charge, Dimow Police Station, 27.04.07"
60. The defence, it may be noted, declined to cross-examine PW10. The evidence of PW10 has, therefore, remained unscathed.
61. Shorn off the inadmissible pieces of statements, which are claimed to have been made by the accused-appellant to the police officer (PW10), what clearly transpires from the unscathed evidence of PW10, in the light of the contents of Ext.8 and also in the light of the evidence of the Investigating Officer (PW11), is that the accused had stated before police that he would produce the dao and, pursuant to this statement, the dao (Material Ext.1) was produced by the accused and, accordingly, seized by the police vide seizure list, which is Exhibit-2.
62. PW12 and 13 are witness to the inquest held on the dead body. Their evidence is not of much relevance in the context of the facts of the present case.
63. So far as DW1 is concerned, his evidence is that he has a khuti (i.e., a place, where buffaloes are kept) near the khuti of the accused. As regards the Page 21 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010 occurrence, DW1 has deposed that on the day of the occurrence, at about 3-30 PM, when he was in his khuti, the accused came to his khuti and told him that a Miri boy, staying at the house of Guna Deuri (PW1), had tried to burn down Dibya Deuri's khuti and that when the accused had threatened the boy, the boy raised a lathi, whereupon the accused picked up a dao and hurled it towards the boy and when he (DW1) asked the accused if anything untoward had happened, the accused replied by saying that he did not know as to what had happened and, hence, apprehending that something untoward might have had happened, he (DW1) rushed to Dibya Deuri's khuti and found the Miri boy (Raju) sitting there with two of his companions, who were taking care of the him by wrapping a gamocha around the neck of Raju and that the gamocha was wet with blood. It is the further evidence of DW1 that injured Raju was not in a position to speak and the boys told him (DW1) that when they tried to set fire to the khuti of the accused just for sake of fun, the accused chased them and, when Raju retorted by taking a lathi, the accused hurled a dao in retaliation, which hit Raju (deceased). DW1 has also deposed that he, thereafter, went to the khuti to make arrangement to take the injured boy across the river, but the Miri boys (associates of Raju) carried the injured away in a dhoti using the dhoti as a stretcher and, latter on, he learnt that Raju had expired.
64. DW1 has admitted that he had not been examined by the police. He does not claim that he ever reported the said occurrence to the police or informed the police that he was acquainted with any of the facts of the case. The belated evidence given by DW1, in the face of the discussions held above, cannot be believed in or relied upon.
65. While considering the evidence of DW1, it is imperative to note that DW1 calls the accused as 'uncle' and had the accused really told DW1, what Page 22 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010 DW1 claims to have been reported by the accused, there is no reason for DW1 to have not gone to the police and reported what he has deposed, at the trial, as a witness from the defence.
66. Moreover, though PW2 and PW4 were, admittedly, with Raju at the time of the occurrence, it was not even faintly suggested to them, during their cross-examination, that either they (PW2 and PW4) and/or Raju had tried to set fire to the khuti of the accused. The story alleging that Raju, along with PW2 and PW4, had tried to set fire to the khuti aforementioned surfaced, as already indicated above, when evidence of PW7 and PW8 were recorded and their evidence, so given in the Court, were contradicted by the previous statements made before the police. There can, therefore, be no escape from the conclusion that the defence story of Raju and his associates trying to set fire to the khuti aforementioned was invented for the purpose of providing a facade to make the accused-appellant's explanation believable as to why the accused happened to injure and kill Raju. This impression gets strengthened from the fact that in no uncertain words, it was suggested by the defence to PW2, when PW2 was being cross-examined, that Raju had attacked the accused and, in order to save himself, the accused 'had to cut Raju'.
67. Logically extended, the suggestion, so offered, would also mean that the story of hurling of the dao towards Raju by the accused-appellant is, again, an imaginary story and the inference, which we have so gathered, gets reinforced from the fact that the unshaken evidence of PW2 and PW4 is to the effect that when they heard the accused saying, 'stop, stop', PW2 and PW4 turned back and saw the accused giving blow, by means of a dao, on Raju's neck.
68. No wonder, therefore, that the doctor (PW6) found injury on the neck as deep as 4 inches inasmuch as the medical evidence on record eloquently Page 23 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010 speaks that Raju had sustained a sharp cut wound on the base of the left side of his neck, the wound, obliquely placed, being of the size 5"x 4"x 4" and it is this injury, which resulted into the death of Raju.
70. What crystallizes from the above discussion is that the prosecution had adduced sufficiently convincing evidence proving beyond reasonable doubt that it was the accused-appellant, who had given blow by means of a dao on the neck of Raju. The weapon used by the accused, the part of the body, which the accused selected to give the blow and the force with which the blow was given, are indicative of the fact that the accused-appellant intended to cause either death of Raju or intentionally cause such bodily injury as was likely to cause death or, at least, with the knowledge that there was likely by such act to cause death. Thus, the act of the accused in assaulting Raju completely falls within the ambit of the definition of culpable homicide, which, in the absence of any exception as provided in Section 300 IPC, shall constitute nothing but an offence of murder punishable under Section 302 IPC.
71. Situated thus, we do not find any infirmity, legal or factual, in the finding of guilt reached by the learned trial Court. The conviction of the accused-appellant does not, therefore, call for any interference nor does the sentence, passed against him, need any interference.
72. In the result and for the reasons discussed above, these appeals fail and the same shall accordingly stand dismissed.
73. Let the learned amicus curiae be paid a sum of Rs.5000/- for his valuable assistance rendered to the Court.
Page 24 Criminal Appeal (J) 49/2009, Criminal Appeal 201/2010
74. Send back the LCR.
JUDGE JUDGE [Rk/dutt] Page 25