Frenchis Dhanowar v. State of Assam — 1998 DIGILAW 219 (GAU)

D. Biswas, J. — Frenchis Dhanowar, the appellant herein, having been convicted by the learned Sessions Judge, Sonitpur Tezpur in Sessions Case No. 9 (S)/95 under sections 302 and 324 IPC and sentenced to imprisonment for life and also to pay a fine of Rs. 1,000/- in default to undergo SI of another six months under section 302 IPC and to one year imprisonment under section 324 IPC, has preferred this appeal on various grounds set forth in the memorandum of appeal. 2. The prosecution case as is evident from the ejahar (Ext 1) is that on 25.12.93 at about 4 PM accused Frenchis Dhanowar assaulted Ludrus Tapno and his wife Smti Sonotoki Tapno by means of a mit-dao resulting into the death of Lurdus Tapno and grievous injuries on the person of Smti Sonotoki Tapno. 3. The ejahar was lodged by Dominik Kerketa, son-in-law of the deceased, on the same day before the Officer In-charge of Dhekiajuli Police Station. On receipt of the ejahar, the police registered PS Case No. 196/93 under sections 326/302 IPC and took up investigation. During the course of investigation the Investigating Officer visited the place of occurrence and shifted both the injured persons to Dhekiajuli Hospital and also recorded the statement of witnesses available. It is relevant to mention here at this stage that Lurdus Tapno succumbed to his injuries on way to hospital. Thereafter, the Investigating Officer completed the rest of the investigation, that is, preparation of sketch map, collection of post mortem report etc and eventually on completion thereof submitted charge sheet against the accused under section 302/326 IPC. 4. Before we proceed further, it is considered imperative to place on record that the accused Frenchis Dhanowar surrendered before the police station on the next date that is, on 26.12.93 with a mit-dao which was used in the act of assault on the deceased and his wife. 5. The learned Magistrate on production of the accused furnished copies of documents under section 207 of the Code of Criminal Procedure and, thereafter, committed the case to the Court of Sessions Judge, Sonitpur, Tezpur for trial. The learned Sessions Judge on consideration of the materials on record framed charges under sections 302 and 326 IPC and on conclusion of the trial convicted the accused under sections 302 and 324 IPC. 6. The learned Sessions Judge on consideration of the materials on record framed charges under sections 302 and 326 IPC and on conclusion of the trial convicted the accused under sections 302 and 324 IPC. 6. We have heard Shri SC Biswas, learned counsel for the appellant as well as the learned Public Prosecutor. 7. Learned counsel for the appellant during the course of argument assailed the judgment on the ground that the evidence of the eye witnesses, namely PWs 1, 2 and 3 are inconsistent and being contradictory on material point to the statement recorded by the Investigating Officer under section 161 of the Code of Criminal Procedure, cannot be relied upon. 8. It would appear that out of 8 witnesses examined, PW 1 Smti Sonotoki Tapno is the wife of the deceased. She is also a victim of the assault. PW 2 Dominik Kerketa, the son-in-law of the deceased, is the informant in this case and he has deposed that he had seen the accused running away from the place of occurrence. PW 3 Smti Anastesia Kerketa, daughter of the deceased and wife of PW 2, saw the occurrence from a distance, PW 4 Hiranmati Kerketa, younger brother of PW 2 also saw the accused running away from the place of occurrence. It is mainly on the evidence of these PWs this Court will have to adjudicate whether the prosecution case against the accused has been proved beyond reasonable doubt or not. Before we enter into a detailed discussion of the evidence of the eye witnesses, we would like to refer to the medical evidence on record. PW 6 Dr.Monohar Kalita who had examined PW 1 on 25.12.93 immediately after the occurrence stated that she had sustained cut injury over the scalp and, considering the condition of the patient, he immediately referred to Tezpur Civil Hospital for further treatment. 9. PW 7 Dr. Subrata Kakoty, Medical and Health Officer conducted the post . mortem examination on the dead body of Ludrus Tapno on 26.12.93. The findings recorded by him are reproduced below : "1. External appearance : State of Rigor Mortis. 2. Wounds : I. Deep incised wound on right side of head over temporal bone cutting across ear, scalp, temporal bone exposing the brain matter. 6"x1/2"x 3". II. Deep incised wound on left side of head over parietal bone cutting across scalp, parietal bone exposing the brain matters. External appearance : State of Rigor Mortis. 2. Wounds : I. Deep incised wound on right side of head over temporal bone cutting across ear, scalp, temporal bone exposing the brain matter. 6"x1/2"x 3". II. Deep incised wound on left side of head over parietal bone cutting across scalp, parietal bone exposing the brain matters. 31/2"x 1/2" x 3". 3. Cranium and spinal canal: Scalp wound as described in 1 (I and II). The fracture of the right temporal bone and the fracture of left parietal bone. Membrane : Incised wound of membrane over right temporal lobe and left parietal lobe. Brain : Cut injury of brain. All other organs were found healthy. The injuries described over were antemortem in nature. Opinion : Death, in my opinion, was due to injuries sustained on brain." 10. It would appear from the evidence of PW 6, the PW 1 Smti Sonotoki Tapno sustained cut injury on her scalp and the injury was so grievous that the doctor had no option but to refer her to Tezpur Civil Hospital for better treatment. Non mentioning of the police case number in the medical report issued by him can not obliterated the evidentiary value of the statements tendered by him in respect of the injury sustained by PW 1. 11. From the evidence of PW 7 we find that Lurdus Tapno sustained incised wounds including injury on his brain and the death, in the opinion of the doctor, was due to the injury sustained by him on the bear. 12. The evidence of the doctor PW 7 establishes the death of Ludrus Tapno who succumbed to the injuries sustained by him. The death of Ludrus Tapno and the injury sustained by PW 1 are not in dispute. With this background, we are to examine the evidence of PWs 1,2,3 and 4 to assess the culpability of the appellant in the instant case. 13. PW 1 Smti Sonotoki Tapno in her evidence stated in unambiguous term that on a Christmas Day she and her husband were in their house. It was around 4 PM accused Frenchis came there and complained to her husband that he had not been paid the wage for one day. Her husband assured that he would give him the wage on Monday next. It was around 4 PM accused Frenchis came there and complained to her husband that he had not been paid the wage for one day. Her husband assured that he would give him the wage on Monday next. But the accused insisted that the money should be paid right at that moment as he had nothing to eat. Then both of them told him that they had no money to pay. At this moment the accused brought out a mit-dao from inside his wearing apparel and started assaulting her husband indiscriminately. When she tried to separate them, the accused also assaulted on her head and the lower part of her right ear. She further added that her husband fell down on the ground and succumbed to the injuries on his way to hospital. She further stated that when her daughter Anastasia arrived at the place of occurrence, the accused also chased her too to assault. According to her she was admitted at Dhekiajuli Civil Hospital for treatment. 14. PW 2 Dominik Kerketa supported the version of PW 1 by saying that at the relevant time he was taking meal. He heard a commotion from the direction of his father-in-law's house situated at a distance of 100 furlong. Then his sister-in-law informed him that the accused assaulted his father with a dao. He went hurriedly towards his father-in-law's house. On the way, he saw the accused running away from the scene with a mit-dao in his hand. Arriving at the place of occurrence, he saw his father-in-law lying there with injuries. He also saw injury on the person of his mother-in-law. He further deposed that his wife Anastasia went to fetch water from a nearby pond and from her he came to know that the accused Frenchis came to take his due (Rs.20) and had assaulted her father for not paying the same. 15. PW 3 Smti Anastasia Kerketa, is the daughter of the deceased and wife of PW 2. She lends support to the statement of PWs 1 and 2. According to her, she went to fetch water from a well situated near her parents house. She saw accused Frenchis assaulting her father in the varandah of their house. She was also chased by the accused, bui the accused could not cause any harm to her. 16. She lends support to the statement of PWs 1 and 2. According to her, she went to fetch water from a well situated near her parents house. She saw accused Frenchis assaulting her father in the varandah of their house. She was also chased by the accused, bui the accused could not cause any harm to her. 16. PW 4 Hiranmati Kerketa who was the younger brother of PW 2 stated that he came to the place of occurrence hurriedly as there was a commotion and saw the accused running away. He tried to hold him. But the accused freed himself from him and fled away. According to him, the accused had a dao in his hand. 17. The evidence of the four witnesses discussed above shows that PWs 1 and 3 had seen the accused assaulting Lurdus Tapno. PW 1 is also a victim of the assault. PWs 2 and 4 are witnesses of circumstances and they had seen the accused running away from the place of occurrence with a dao in his hand. 18. There is no iota of evidence either in the examination-in-chief or in the cross-examination to show that there has been deep seated enmity between the accused and the members of the family of the deceased. That being so, this Court is unable to find any fault with the evidence of the four witnesses which consistently and unambiguously points to the guilt of the accused. During the course of cross-examination, the defence could not assail the credibility of the witnesses on the substantive point of assault. 19. The learned counsel for the appellant argued that all the witnesses are closely related and there being other neighbours present at the place of occurrence and none of them having examined by the prosecution, serious doubt arises regarding the veracity of prosecution case. But we are unable to agree with the learned counsel for the reason that we are not aware as to why the Investigating Officer did not cite any one of the neighbouring persons as witness in this case. There is also no positive evidence to show that the neighbours present had seen the act of assault. That being so, non-examination of any neighbour can not be a ground for refusal of evidence of the witnesses examined. Therefore we are to reach to a conclusion on the basis of.the evidence made available by the prosecution. There is also no positive evidence to show that the neighbours present had seen the act of assault. That being so, non-examination of any neighbour can not be a ground for refusal of evidence of the witnesses examined. Therefore we are to reach to a conclusion on the basis of.the evidence made available by the prosecution. The witnesses may be related or unrelated. What is of prime consideration in a Court of law is whether they are reliable or unreliable and whether their version can be relied upon. Since there is no proof of any existing enmity between the accused and the prosecution witnesses, we can not reject their evidence merely because they are related. That apart PW 1 Smti Sonotoki Tapno who is the wife of the deceased has no reason to shield the real culprit and to indict an innocent man as a killer of her husband. The fact that the ejahar was lodged promptly and the statement of all the important witnesses have been recorded without any delay indicative of genuineness on the part of the witnesses. The witnesses corroborated one another on all material points. We find no reason to denounce any one of them as unworthy. 20. The learned counsel further pointed out that the Investigating Officer (PW 8) proved a few vital contradictions and some of the contradictions relate to the material aspect of the case concerning the culpability of the appellant. But we have, with the assistance of the learned Public Prosecutor, verified the Statements recorded by the Investigating Officer under section 161 CrPC. We are of the definite opinion that most of the contradictions are not borne on the statement recorded by the Investigating Officer and have been misconceived. All the four witnesses in their statement before the Investigating Officer indicated the appellant in the same manner as they have done while deposing before the Court. In our opinion, the evidence of PWs are consistent and leads to the irresistible conclusion that it is the accused and none else who had committed the murder of Ludrus Tapno and caused injuries on the person of his wife Smti Sontoki Tapno. 21. Another special feature is that the accused surrendered before the Dhekiajuli Police Station alongwith the dao on the following day and the dao was seized by the Investigating Officer which was marked as M. Ext 3. 21. Another special feature is that the accused surrendered before the Dhekiajuli Police Station alongwith the dao on the following day and the dao was seized by the Investigating Officer which was marked as M. Ext 3. The mit-dao was produced before the learned Sessions Judge who had no reason to disbelieve that it was used as the instrument of assault. PW 8 the Investigating Officer also deposed the above fact and proved the seizure list (Ext 3). Immediately thereafter, he arrested the accused and brought him before the Court. The evidence of PW 8 on this point had been dealt with at length by the learned Sessions Judge. This conduct of the accused subsequent to the occurrence has some amount of relevance. The totality of the evidence adduced in this case irresistibly leads to the conclusion that Frenchis Dhanowar without any provocation attacked Lurdus Tapno and his wife Smti Sonotoki Tapno and in the process committed the murder of Lurdus Tapno and caused injury on the person of Smti Sonotoki Tapno. 22. We have also examined the statement of the accused recorded under section 161, CrPC. We find no fault or defect in the examination of the accused under section 313, CrPC. The accused on conviction under sections 302 and 324, IPC was heard on the point of sentence. After due consideration of the statement of the accused on the point of sentence, the learned Sessions Judge convicted the accused as aforesaid. We find no reason to differ with the learned Sessions Judge. 23. In the result, the appeal fails and it is dismissed. The judgment of conviction and the sentence imposed by the learned Sessions Judge are hereby confirmed.