Gauhati High Court
Ajay Garh vs The State Of Assam on 18 July, 2022
Author: N.Kotiswar Singh
Bench: N.Kotiswar Singh
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GAHC010032902018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/23/2018
AJAY GARH
S/O. SRI RAJEN GARH, R/O. ORANG BASTI, TIRUWAL T.E., P.S. MARIANI,
DIST. JORHAT.
VERSUS
THE STATE OF ASSAM
REP. BY THE P.P., ASSAM, GHC, GHY.
Advocate for the Petitioner : MR J DAS, AMICUS CURIAE
Advocate for the Respondent : PP, ASSAM
BEFORE DIVISION BENCH-II Date : 21-07-2022 Date of Hearing & Date of Order : 21.07.2022 JUDGMENT AND ORDER(ORAL) (N.KOTISWAR SINGH,J)
1. Heard Mr. J. Das, learned Amicus Curiae for the appellant. Also heard Ms. S. Jahan, learned Addl. P.P.,Assam.
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2. The present appellant preferred appeal against the Judgment dated 21.11.2017 passed by learned Sessions Judge at Jorhat in Sessions Case No. 30 (J-T) of 2016 arising out of G.R. No. 313 of 2014 and Mariani P. S. Case No. 136 of 2014 by which the appellant has been convicted u/s 302/201/34 of IPC.
3. As per the records it appears that an FIR was lodged on 29.6.2014 on the basis of a complaint filed by one Smt. Laxmi Garh who was the mother of the deceased child complaining that at about 7 P.M night on 27.6.2014 after she had a quarrel with her husband, the appellant herein, and she left the house by leaving her fourteen months old baby and went to the house of one of her acquaintances where she took shelter. Subsequently, at about 7 P.M of 29.6.2014, her sister-in-law namely, Miss Maina Garh who was about 7 years old came to her in the house of Raju Karmakar of No.2 Darakial village where the complainant was taking shelter and informed her that her husband the appellant had killed her baby Boisali Garh in presence of her father-in-law Rajen Garh, mother-in-law Smt Budh Garh, her husband's elder brother, Sri Mantu Garh, and his wife, Smt. Kunti Garh who are all alleged to have been complicit in the said crime.
4. Based on the aforesaid FIR, the criminal investigation was initiated. On completion of the investigation ultimately charge was framed only against the present appellant and Sri Mantu Garh and Smti Kunti Garh .
5. The prosecution examined as many as 7 (seven) witnesses. The learned Trial Court after considering the evidences on record including oral and documentary evidences, adduced before the Trial Court came to the conclusion Page No.# 3/13 that the appellant is guilty of committing the offence punishable under Section 302 of IPC and accordingly, convicted him and sentenced him to undergo rigorous imprisonment of life with a fine of Rs.20,000/- in default of payment of which, to undergo further rigorous imprisonment of six months. Appellant was also convicted under Section 201 of IPC and sentenced to undergo R. I for three years with a fine Rs. 5,000/- in default of payment of which, to undergo further R.I. of three months.
As far as the other two accused are concerned, they have remained absconding. Accordingly, the present appeal has been preferred by the convicted appellant.
6. Before we examine the appeal on merit, it may be necessary to refer in brief the facts of the case and also to the evidences on which basis, the learned Trial Court convicted the appellant.
Out of the seven witnesses who were examined by the prosecution, in our opinion, the star witness is one Ms. Mainu Garh who was examined as PW 2 who also happens to be younger sister of the present appellant. At the relevant time when the incident occurred she was a 7 years old minor and when she was examined before the Trial Court, she was about 9 years old. As such the learned Trial Court after being fully satisfied about her mental state that she will be able to testify properly and she having understood questions put by the Judge, the learned Trial Court proceeded to record her evidence. She clearly stated before the Trial Court that the appellant is her elder brother and the other accused is Mantu Garh. She stated that she knew the name appellant's wife as Laxmi Garh. She also stated that she knew the other accused Kunti Garh who is the wife of the other accused Mantu Garh. She stated that Laxmi Garh, the wife of the appellant had a one year old daughter and the appellant had killed the child by Page No.# 4/13 assaulting her with a stick and after killing the child, the appellant had buried her in a pond near their house. She also stated that she had seen the appellant assaulting the girl child and burying her in the pond. At the relevant time, she was present in the house. She also stated that her parents were also present in the house when the incident took place. She also stated that on the previous night of the occurrence the appellant had assaulted his wife Laxmi Garh and thrown her out of the house because of which Laxmi had gone to her parental house. She stated that on the next day the appellant had killed the child.
7. She (PW 2) also stated that on the next day afternoon she had gone to Tirual T.E. to meet Laxmi Garh and she met her and narrated what had happened. She also stated that her parents have been absconding since then and does not know about their whereabouts. She also stated that after the occurrence her statement was recorded before the Magistrate. The said statement recorded before the Magistrate was proved in course of the trial.
8. PW 2, Miss Mainu Garh was duly cross-examined by the defence. In the cross-examination she reiterated what she had stated in the examination-in- chief. She also stated that the child was sleeping in the bed of Ajoy Garh, the appellant, at the time of occurrence and she categorically denied that she did not see her brother appellant killing the child.
9. PW 1 is the mother, Laxmi Garh who was not an eye witness as mentioned about. Nevertheless, her evidence would show that she was assaulted by her husband and thrown out from the matrimonial house before the occurrence and she came to know about the occurrence only from Ms. Mainu Garh. Her evidence therefore corroborated the statement of PW 2 Ms Mainu Garh that PW 1 was subjected to assault by the appellant prior to the incident.
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10. PW 2 had narrated the incident of killing of the child to her mother i.e. PW 1, Smt Laxmi Garh. She (PW 1) stated that after coming to know about the killing of her minor daughter from PW 2, she went to Police Station and lodged the FIR.
11. PW 3 is Dr. Nitu Kumar Gogoi who conducted the post-mortem examination on the dead body of the female child. He mentioned about the injury received by the minor child as follows:
"Injury:-
A) Contusion of size 11 cm x 9.5 cm over the left fronto- temporal region underneath depressed fracture of frontal bone present.
Membranes are lacerated. Subdural hemorrhage present over both the cerebral hemisphere.
N.B:- Above mentioned injuries contains adherent blood clots over wound margins which resist washing by running water. No ligature mark around the neck. On dissection neck tissues are healthy:
2. Cranum, and spinal canal:
Scalp ,skull and vertebrae: Scalp As described,Skull: As described, Vertibrae: Healthy Membrane As described Brain and Spinal Cord: Brain - Soft, Spinal Cord: Not examined.
3. Thorax Walls ribs & cartilage: Walls Partly decomposed, Ribs & Cartilage Healthy Pleurae: Healthy , Larynx & Trachere: Decomposed, Right & left lung:
Both are partly decomposed, Pericardium: Healthy, Heart: Partly Page No.# 6/13 decomposed, empty, Vessels: Healthy.
4. Abdomen:
Walls : Partly decomposed, Peritonoum: healthy Mouth, Pharynx, oesophagus: Partly decomposed, Stomach: Partly decomposed, contain fluidy matter matter without any characteristic smell.
Small intestine and its contents: Partly decomposed, contain fluidy matter.
Large intestine and its contents: Partly decomposed, contain gases and faecal matter.
Liver: Partly decomposed, Spleet: Partly decomposed, Kidneys: Both are healthy, Bladder: empty, healthy.
Organs of generation, extema and internal: Externally- Partly decomposed Internally-Healthy.
5.Muscles, bones and Joints.
Injury As described, Disease or deformity:- Not detected, Fracture:- As described , Dislocation: As described."
He (PW 3) gave the opinion that the cause of death due to coma as a result of ante-mortem head injury caused by a blunt weapon, which was homicidal in nature. In the cross-examination, PW 3 stated that by seeing the nature of injuries it is very unlikely that the deceased child died by falling. He also mentioned that the wearing garments of the child were wet and stained with mud.
12. PW 4 is a neighbour who though did not witness the incident, was witness Page No.# 7/13 to the recovery of the dead body of the child after the police dug a well. He also mentioned that the well was not very deep.
13. PW 5 is another neighbour who witnessed the recovery of the child. He stated that the police dug one well and recovered the child who was the daughter of the appellant. PW 5 was also a seizure witness of the bamboo stick which was used by the appellant according to prosecution, to batter the child and an air bag where the child was kept.
14. PW 6 is another neighbour and seizure witness.
PW 7 is the I.O of the case.
15. It may important to note that the statement made by appellant u/s 313 Cr.P.C. after the prosecution had leaded their evidence. In this regard the following answers given by the appellant would be of much relevance. To the third question put by the Trial Court, the appellant gave the answer in the following words:
"Question No. 3:- Witness Miss Mainu Garh(PW 2) who is your younger sister deposed that on the date of incident she witnessed you assaulting your daughter with a stick, for which she was murdered. Thereafter you buried your daughter in the pond which is situated near your house which she had witnessed. She further stated that her parent namely Sri Atul Garh and Smt Budhu Garh were also present at that time. It is further version of this witness that on the previous night of occurrence you had assaulted your wife (PW 1) for which your wife returned back to her parental home. She further stated that on the next day she searched the informant and when she met her she narrated the incident before the informant. She further stated that she is staying with the informant after the incident. This witness further stated that after the incident both her parents are absconding. She gave statement before the Magistrate vide Exhibit-2. What do you have to say?
Answer: PW 2 has deposed falsely. I have not committed murder of my own daughter, as alleged. I have been falsely implicated in the case. I had assaulted my daughter with hand and went to the nearby shop to bring milk packet. On returning back I found my daughter dead.
Page No.# 8/13 Out of fear I buried the girl in a ditch in front of my house."
Similarly to the question No. 9 put by the Court as to anything else which the appellant wished to say before the Trial Court, he answered in the following words:
Q. No.9 Do you have anything else to say?
Answer: I am innocent. Deceased was my own daughter. I do not know how she expired. I am innocent. I just gave a single slap to my deceased daughter for weeping".
16. The learned Trial Court on the basis of evidences held that the Prosecution has been able to prove the charge against the appellant beyond reasonable doubt. The learned Trial Court also heavily relied on the evidence of PW 2, own sister of the appellant, who had witnessed the appellant assaulting his minor daughter aged about 14 months with a stick and thereafter burying the dead body in a well.
As also noted by the learned Trial Court, we have also gone through the record and we find the testimony of PW 2 to be credible and reliable. She was an eye witness and not an interested witness. She being the younger sister of the appellant had no reason to falsely implicate her own brother. Rather, if she had wanted to give benefit to the appellant she would not have narrated the incident in such clear terms during the investigation as well as in course of trial. During the investigation, the PW 2 had given statement under 164 of Cr.P.C. The said statement reads as follows:
"On S/A My elder brother Ajay Garh killed his little daughter by striking her with lathi. He buried her dead body in the ground. I witnessed the incident. I told my mother about the incident.
Page No.# 9/13 My mother, father and elder brother ran away. I shall stay with my elder brother Raju"
17. The aforesaid statement of PW 2 was recorded by learned Magistrate under Section 164 of Cr.P.C after taking due care and caution as to the ability of the witness to comprehend the questions and ability to give answer properly. She categorically stated before the Magistrate that her elder brother had killed his little daughter by striking her with a lathi and after that he buried her dead body in the pond and she had witnessed the incident and informed her mother about the incident and thereafter her mother and father ran away. The fact that her parents were absconding is fully corroborated by her statement made under Section 164 of Cr.P.C.
We have already observed what PW 2 who is a minor child had stated before the Trial Court, is quite consistent. In the cross examination also she had reiterated without any deviation from her previous statement on material aspects. Therefore, we are satisfied and convinced that the evidence of PW 2 is reliable and credible .
18. If we consider the statement of the appellant before the Trial Court made under Section 313 of Cr.P.C., though the said statement cannot be said to be evidence, yet his statement is consistent with what has been stated by PW 2. The only difference is that while the appellant admitted that he had struck the child with hand and thereafter buried the body, PW 2 stated that the appellant had struck the child with a stick and thereafter buried her body. Thus, apart from the aforesaid difference in the manner of assault on the baby girl, as far as the act of burying the dead body in the pond is concerned, it appears to be fully established.
Page No.# 10/13 The question, therefore, which may be considered, is whether, the appellant had merely used his hand to slap his minor child resulting in her death or was she hit by a lathi by the appellant as the prosecution alleges. In this regard we make a reference to the medical evidence. As mentioned in the opinion of the doctor (PW 3) who conducted the post-mortem examination on the body of the child, the doctor had categorically mentioned that injury was caused by a blunt weapon. In the cross- examination, he (PW 3) stated that by seeing the nature of injuries it is unlikely that the deceased child died by falling. Thus, the ocular evidence of PW 2 which we consider to be consistent, credible and reliable stands corroborated by medical evidence that injury caused on the head of the child was by a blunt weapon, in the present case by a lathi.
19. Under the circumstances, we are also satisfied that Prosecution has been able to prove as held by learned Trial Court that the minor child was hit on the head by the appellant with a bamboo stick resulting in her death and subsequently, the dead body was buried, and the factum of burial has not been disputed by the appellant .
20. However, learned Amicus Curiae submitted that the act of the appellant was out of anger and not really premeditated and the appellant had no real intention to kill the baby and as such being an act committed in the heat of the moment and passion, and since there was only one injury, this Court may take a lenient view and convert the conviction from Section 302 of IPC to Sec 304 of part II IPC.
In this regard, the learned counsel for the appellant submits that it is on record that there was a quarrel between the appellant and his wife and which was the immediate cause of the appellant to have struck the child. In this regard learned counsel for the appellant has also referred to a decision of Page No.# 11/13 Hon'ble Apex Court rendered in Gurumukh Singh Vs State of Haryana reported in (2009) 15 SCC 635 wherein the Hon'ble Apex Court has mentioned certain factors to be taken into account while awarding sentence to the accused.
21. In para 23 of the judgment Hon'ble Apex Court observed as follows:
"23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:
a) Motive or previous enmity;
b) Whether the incident had taken place on the spur of the moment;
c) The intention/knowledge of the accused while inflicting the blow or injury;
d) Whether the death ensued instantaneously or the victim died after several days;
e) The gravity, dimension and nature of injury;
f) The age and general health condition of the accused;
g) Whether the injury was caused without pre- meditation in a sudden fight;
h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;
i) The criminal background and adverse history of the accused;
j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;
k) Number of other criminal cases pending against the accused;
l) Incident occurred within the family members or close relations;
m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?
These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. "
We are, however, of the view that the aforesaid decision is not relevant as regards to proof or otherwise of the charge against the appellant. The said decision will be relevant only at the time of consideration of sentence, after conviction on the charge.
22. As regards the plea raised by appellant, what we have noted is that the appellant is the own father of a helpless child aged about 14 months only who cannot even communicate with the outside world. At that tender age the child is wholly dependent on her parents and other adults. The appellant being the Page No.# 12/13 father had an obligation to ensure the wellbeing of his own child even if neglected or left behind by her mother. Even if negligence be attributed to the mother for leaving behind the child, nevertheless, she did not leave behind the child under unfamiliar surroundings, but in the hands of the very father who is supposed to look after the wellbeing of the child and protect her. In our view, the act of the appellant in brutally assaulting the child is an abominable act of the highest order and cannot be condoned at all much less take a lenient view. As a father he had responsibility to look after the well being and safety of the child. The question of a child provoking the father does not arise inasmuch as she was of a tender age of only 14 months who is absolutely at the mercy of the person taking care, and in this case the appellant her own father who instead of taking care of his minor and tender child, resorted to a brutal and heinous act of assaulting without any reason at all. The submission that the appellant had struck the child in a fit of anger cannot be sustained for the reason that the assault on the child did not take place when he was assaulting his wife and was driving her away. The appellant could not have deflected his anger for his wife towards a totally helpless child. The assault took place later on, in his own bed after his wife left. It was a cold blooded murder without any justification.
23. In fact, the conduct of appellant is absolutely abominable and abhorrent deserving the harshest punishment for the reason that instead of taking care of child, he brutally assaulted and killed his own child and buried her trying to conceal the heinous act. The conduct of the appellant therefore does not warrant any sympathetic consideration from this Court.
We therefore, reject the plea of the appellant as totally devoid of any Page No.# 13/13 merit.
24. Accordingly for the reasons, we do not find any merit in the appeal and accordingly, the appeal is dismissed.
25. Mr. J. Das, learned Amicus Curiae who has ably assisted this Court in conducting this appeal may be given the honorarium at the rate fixed as per Rule.
JUDGE JUDGE Comparing Assistant