Gauhati High Court
Sri Dinesh Sabar & 2 Ors vs The State Of Assam on 30 August, 2013
Author: T. Vaiphei
Bench: T. Vaiphei, M. R. Pathak
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Crl. A. (J) 116/2010
1. Dinesh Sabar
2. Bikram Sabar
3. Babudhan Sabar
4. Pran Sabar
........Appellants
-Versus-
The State of Assam
...... Respondent
PRESENT
HON'BLE MR. JUSTICE T. VAIPHEI
HON'BLE MR. JUSTICE M. R. PATHAK
For the Appellant ... Mr. R De
Amicus Curie
For the respondent ... Mr. D Das,
Additional Public
Prosecutor
Date of Hearing ... 30.08.2013
Date of judgment ... 30.08.2013
Crl. A. (J) 116/2010 Page 1 of 7
JUDGMENT AND ORDER (ORAL)
( T. Vaiphei, J) We have extensively heard Mr. R De, the learned Amicus Curie and Mr. D. Das, the learned Additional Public Prosecutor appearing for the State of Assam
2. The validity of the judgment dated 20.7.2010 passed by the learned Additional Sessions Judge (Fast Track Court), Cachar in Sessions Case No. 94/08 convicting the four appellants under Section 341/322/34 IPC and sentencing them to undergo an imprisonment for life, to pay a fine of Rs. 2,000/- by each of them and, in default thereof, to undergo RI for another 3 months. The appellants are also convicted under Section 341/34 IPC and were sentenced to pay a fine of Rs. 500/- by each of them and, in default thereof, to undergo SI for 15 days.
3. The Case of the prosecution in brief is that on 10.07.03 at about 2 pm, nine persons including the appellants wrongfully restrained Sadhu Tanti @ Banka Tanti (the deceased) on the road in front of the house of one Jiban Majhi, chased him and assaulted him with dao and lathi etc. carried by them at the backside of the house of one Smti. Sanaka Sabar (PW2) thereby causing severe injuries on him:
the injuries inflicted upon him resulted in the death of the deceased. The FIR was lodged by the father of the deceased, namely Sri Harinandan Tanti (PW-5) on the same day at about 10.45 pm. The Dhuarbond P.I.C. made a G.D. entry No. 142 dated 10.7.2003 and the FIR was then forwarded to O/C, Silchar P.S. for registering a regular Case. On receipt thereof, the Officer-in-Charge, Silchar P.S. registered Crl. A. (J) 116/2010 Page 2 of 7 a regular case under Section 147/ 148/ 149/ 341/ 302 IPC. During the course of investigation, the police visited the place of occurrence, conducted inquest over the dead body of the deceased, prepared the inquest report, sent the dead body of the deceased for post-mortem examination, collected the examination report and recorded the statements of the witnesses and made some seizure as well.
3.A On completion of the investigation the police submitted the charge-sheet against these four appellants under Section 341/302/34 IPC while the remaining five FIR named persons were discharged from the case due to lack of sufficient evidence. The learned Additional Sessions Judge, thereafter framed a charge against the appellants under Section 341/302/34 IPC to which they pleaded not guilty and claimed to be tried. In the course of trial, the prosecution examined as many as 11 witnesses including the informant, who was none other than the father of the deceased (PW-5). On the conclusion of the trial, the appellants were examined under Section 313 Cr.P.C., whose defense was that of total denial, but they declined to adduce evidence in their defense. After hearing both the parties, the learned Additional Sessions Judge passed the impugned judgment of conviction and sentence which is now under challenge in this appeal.
4. Before proceeding further, we may refer to the postmortem examination report of the deceased which is exhibited as Ext-9. The injuries found on the deceased are undisputed. The cause of the death of the deceased was hemorrhage resulting from the incised wounds sustained which are ante-mortem and was homicidal in nature.
Considering the weapon used by the culprits in assaulting the deceased on different parts on his body including vital parts, we have Crl. A. (J) 116/2010 Page 3 of 7 no hesitation to hold that those injuries are sufficient for causing the death of the deceased. The question which now falls for consideration is whether the appellants are responsible for the death of the deceased. We will straightway refer to the statements of PW-3, who is the eye witness of the incident. PW-3 deposed that the occurrence had taken place on Thursday at about 5/6 years back and at that time, he was at his resident attending to some works and that it was at about 2.30 pm, he saw the deceased going to the market when the four appellants encircled him on the road. PW 3 further deposed that the appellants were armed with dao and lathi etc. ; that he saw the incident from the house and that the appellant No. 1 was assaulting the deceased by dao while remaining appellants were assaulting him with lathi. This witness also testified that on being assaulted by the appellants, the deceased collapsed on the ground behind the house of one Smti. Sanaka Sabar (PW-2) and that the appellants severed one leg of the deceased by dao and that he raised hulla. On hearing his hulla whereupon the mother and wife of the deceased came to the place of occurrence and found PW-2 already dead. It is also the testimony of PW-3 that the appellants thereafter fled away from the place of occurrence. According to this witness, all the appellants are his neighbours. He also testified that he informed the incident to Harinandan Tanti (PW-5) and others. We have seen the cross- examination of this witness, which does not elicit anything to impeach his credibility.
5. The above statement of PW-3 is fully corroborated by the PW-5 in material particulars. According to PW-5 the appellants belong to his locality, and at about 2.30 pm of the fateful day, he was returning home from working place with his cattle and that on the way Crl. A. (J) 116/2010 Page 4 of 7 Jiban Majhi (PW-3) reported to him that his son was murdered and that the appellants killed his son. He further deposed that PW-3 reported to him that it was Dinesh Sabar, appellant No. 1 who had inflicted the dao blow upon the deceased and after keeping his cattle at the house, he rushed to the place of occurrence and found the police personnel there and that his son was lying on the backside of the house of PW-2 with injuries on his person. According to this witness, the police held inquest over the dead body of his son. He submitted a written ejahar (Ext. 4) to the police at Dhuarbond out post. The testimony of this witness could be shaken in any manner by the defense in his cross-examination. On the contrary, the cross- examination of this witness is confined only to suggestion and simple denial of the statement made by the PW-5 in his examination-in-chief. In our considered view, the evidence i.e. oral testimony of the ocular witnesses as well as the medical and other evidence on record clearly establish the commission of crime, the persons who committed the crime, the manner in which it was committed and the place where it was committed.
6. Mr. R De, learned Amicus Curie, however, submits that PW-3 is the only ocular witness and his statement was not in any manner corroborated by the evidence by other witnesses. According to him, the sole statement of PW-3 cannot form the basis of conviction of the appellants. The law is well settled that it is the quality and not the quantity of the evidence, which counts. As we already noticed, the evidence of PW-3 is natural, credible, trustworthy and convincing. In our opinion, the attempt made by the learned Amicus Curie to create doubt in the case of the prosecution on the ground that the evidence of PW 1 and PW 8, who were at the scene of the crime at the time of Crl. A. (J) 116/2010 Page 5 of 7 incident and who have turned hostile, do not support the case of the prosecution do not stand closer scrutiny. It must be noted that in every criminal trial, some doubts are always there. But the question is whether those doubts are reasonable or not. In instant case, the doubt harped on by the learned Amicus Curie pales into insignificance when the testimony of PW-3 is otherwise convincing and acceptable. Moreover, PW-5 has corroborated the deposition of PW 3 in material particulars as already indicated elsewhere. It must also be noted that the incident seen by PW-3 was immediately narrated by him to PW-5 right after the occurrence and this statement is, therefore, relevant under Section 6 of the Evidence Act. This is a case in which we find that one ocular witness corroborated by the evidence of PW-5 proved to the hilt the prosecution case that the appellants in further their common intention caused the death of the deceased. The weapon used by them in the assault and the multiple injuries sustained by the deceased on the vital parts of his body leave us with no doubt in our mind that the appellants caused the death of the deceased and that the appellants had the common intention to cause the death of the deceased.
7. It is true, as contended by the learned Amicus Curie, that no motive is established by the prosecution to cause the death of the deceased by the appellants. Motive is a thing primarily known to the accused themselves and it is not possible for the prosecution to explain what actually prompted or excited them to commit the particular. Motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstance proved the guilt of the accused, the same is not weakened, even if the motive is not very strong. On Crl. A. (J) 116/2010 Page 6 of 7 the other hand, absence of motive loses all its importance in a case where direct evidence of eye-witnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. - See State of UP v. K ishanpal, (2008) 16 SCC 73 . Therefore, in the instant case, even in the absence of the motive, the reliable evidence of the ocular witness i.e. PW 3 corroborated in material particular by PW-5 is, therefore, sufficient to bring home the charge against the appellants, who have been rightly been convicted for murder and wrongful restraint of the deceased with common intention by the learned Additional Sessions Judge (FTC), Cachar, Silchar. We have no reason to interfere with the impugned judgment of conviction and sentence, which we have no hesitation to affirm.
8. The result for forgoing discussion of that this appeal has no merit, and is hereby dismissed. The appellants shall serve out the remaining period of their sentences. The learned Amicus Curie shall be paid a sum of ` 5,000/- by the Assam Legal Services Authority for assisting this Court.
JUDGE JUDGE
Naba
Crl. A. (J) 116/2010 Page 7 of 7