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2001 DIGILAW 309 (GAU)

Sibo Kurmi v. State of Assam

2001-10-19

AFTAB H.SAIKIA, J.N.SARMA

body2001
A.H. SAIKIA, J. — The judgment and order dated 5.4.2000 passed by the learned Sessions Judge at Golaghat in Sessions Case No. 72/98 under Section 302IPC is under challenge in this Criminal Appeal. 2. The appellants were found guilty under Section 302 IPC for committing the murder of the deceased Sri Aghanu Kurmi and consequently both of them were convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.500/- each in default further rigorous imprisonment for six months. The prosecution case as emerged out of the F.I.R as well as the evidence of PW 4, Horicharan Kurmi, is that on 19.6.97 there was a religious function arranged by female devotees at a village Namghar. The said function was known as "Gopini Sabah". As the deceased Aghanu Kurmi was the care taker of the Namghar, the female devotees called him to the Namghar to chant panegyric of Goddess Seetala. The panegyric was to be chanted for three days. In the last night of the function i.e. 19.6..97 at about 11 PM, when the deceased was in the Namghar, both the appellants, Sibo Kurmi and Padmeswar Kurmi went to the Namghar and started assaulting the deceased alleging that he had unleashed the evil spirit upon them. Both of them gave him blows over his head with a piece of brick resulting the deceased to fell down on the ground. The appellant No.l, Sibo Kurmi cut his throat with a dao and severed his head by its neck with a dao. Deceased died instantly. Thereafter the appellant Sibo Kurmi cut opened Aghanu's (deceased) chest and exposed the heart with a dao. The villagers went to the Police Station and in the following morning i.e. 20.6.97 Police came to the place of occurrence. Then only ejahar was lodged by PW 4, Horicharan Kurmi. The Police found the dead body^at Namghar and the said dead body was sent to Golaghat Civil Hospital for post mortem examination. The Police arrested the appellants who were found in the village. The Police also seized the dao (Kalam Kotari), two bamboo sticks and a piece of brick from the place of occurrence. Police registered a case under Section 302 IPC and submitted charge-sheet against both of them in the court of Judicial Magistrate, Golaghat who committed the case to the Court of Sessions for trial. 3. The Police also seized the dao (Kalam Kotari), two bamboo sticks and a piece of brick from the place of occurrence. Police registered a case under Section 302 IPC and submitted charge-sheet against both of them in the court of Judicial Magistrate, Golaghat who committed the case to the Court of Sessions for trial. 3. During the trial as many as six witnesses were examined by the prosecution. PW 4 Horicharan Kurmi was examined as the sole eye witness. PW 1 Dr. Beni Madhab Phukan who conducted the post mortem over the dead body of the deceased Aghanu was examined as medical witness. P.W. 2, Ram Awatar Kurmi, PW 3 Sukdew Goala and PW 5 Karma Kurmi were also examined as prosecution witness, being co-villagers. PW 6 Prakash Chandra Hazarika, being the investigating officer, was also examined. 4. Before discussing the evidences of the sole eye witness and the other witnesses, it is expedient to examine the medical evidence. PW 1, Dr. Beni Madhab Phukan in his deposition stated that on 20.6.97 he performed post mortem examination over the dead body of the deceased and found as follows : "... The dead body of a male person with average built. Rigor Mortis absent. External appearance: (1) Deep cut over the neck severing the head completely from the trunk at the level of cricoid cartilledge cutting across the cricothyroid membrane in the front and 5th cervical vertebrae on the back at its middle. All the vital structures like jugular carotids, oesophagus, larynx and cut across. (2) One deep sharp cut over the middle of the chest upto the left side with exposure of lacerated heart and both the lungs. Size of the wound is 6" x 4". (3) One sharp cut of 3" x 2" over the back of the head and one of size 2" x 2" over the frontal region. Both injuries are scalp depth. (4) whole face is completely lacerated with fracture of nasal and left maxillary bones. Thorax. Right lung: middle of it lacerated. Left lung: the whole left lung is lacerated. Pericardium : lacerated with complete rupture. Heart : completely lacerated with the missing of the anterior wall exposing the ventricles and atria. Abdomen "stomach and contents - healthy and full of half digested food. Small intestine: healthy and full of digested food. Large intestine : healthy and full of faces. Left lung: the whole left lung is lacerated. Pericardium : lacerated with complete rupture. Heart : completely lacerated with the missing of the anterior wall exposing the ventricles and atria. Abdomen "stomach and contents - healthy and full of half digested food. Small intestine: healthy and full of digested food. Large intestine : healthy and full of faces. All the injuries are antemortem as they were covered with clotted blood." The said Doctor in his evidence opined that the death was due to shock and haemorrhage as a result of the injuries sustained by the deceased. In cross he had stated that the death might have been caused prior to 24 hours approximately. These injuries were the cause of death. He also stated that both the sharp weapons and blunt objects were used for causing injuries to the deceased. 5. The medical evidence was corroborated in its totality with the evidence of PW 4, Horicharan Kurmi. This witness was projected by the prosecution as the sole eye witness. In his evidence he categorically deposed that the appellant No. 1, Sibo Kurmi cut the throat of the deceased who died instantly and thereafter the said appellant cut opened the chest of the deceased with a dao exposing the deceased's heart. The Doctor's evidence clearly indicated that there was deep cut over the neck severing the head completely from the trunk and one deep sharp cut over the middle of the chest upto the left side with exposure of lacerated heart and both the lungs. More so middle of the right lung of the deceased was lacerated when the whole of the left lung was lacerated as well as pericardium was found to be lacerated with complete rapture. The heart which was claimed to be exposed by PW 4 by cutting, was found to be completely lacerated with missing of the anterior wall exposing the ventricles and atria. 6. The above mentioned PW 4, Horicharan Kurmi was not only related to the deceased but also the grand-father of both the appellants. The deceased was the son of his paternal uncle. PW 4 was present at the Namghar at the time of occurrenee of the incident. He deposed that on the night of occurrence when female devotees arranged the function at village Namghar the deceased was called by the female devotees to the Namghar to recite Seetala path. The deceased was the son of his paternal uncle. PW 4 was present at the Namghar at the time of occurrenee of the incident. He deposed that on the night of occurrence when female devotees arranged the function at village Namghar the deceased was called by the female devotees to the Namghar to recite Seetala path. The deceased was the care taker of the Namghar. When the deceased was at Namghar, PW 4 saw both the appellants hit the deceased alleging that he had unleashed the evil spirit upon them. They had hit him at the Namghar itself. The said witness clearly and without ambiguity deposed that the appellants felled the deceased by hitting him on the head with brick. As the deceased fell down on the ground the appellant No. 1 Siba Kurmi cut his throat with dao causing his immediate death. The witness stated that they fled away out of fear. He also stated that the villagers called the police in the morning and then he lodged the written FIR the Exbt. 2. The Police found the appellants there and took away the dead body along with two appellants. In the cross-examination the PW 4 stated that the night of occurrence was moonlight night and he saw the occurrence from a distance of some 10/15 feets. He denied the suggestions that he did smoke 'Bhang' and the deceased had given liquor or 'Bhang' to both the appellants who were present at the time of occurrence at the Namghar. He also denied that the, deceased and mother of the deceased did practice sorcery. He clearly stated that the two appellants were his grandsons. 7. P.W. 2 Ramawatar Kurmi in his evidence stated that on that night when he was sleeping at his home, co-villagers Sabharam and others informed him that the appellants were possessed by the Goddess and they took him to the Namghar. At Namghar he saw the appellants as well as the deceased Aghanu's body lying outside the Namghar. He stated that they sent three persons, Sabharam and two others to the Police Station. In cross he adduced that he did not see the incident of assault. 8. PW 3, Sukdew Goala in his deposition only stated that he came to know that some body killed the Aghanu and his dead body was lying near Namghar. 9. He stated that they sent three persons, Sabharam and two others to the Police Station. In cross he adduced that he did not see the incident of assault. 8. PW 3, Sukdew Goala in his deposition only stated that he came to know that some body killed the Aghanu and his dead body was lying near Namghar. 9. PW 5, Karma Kurmi gave evidence to the effect that in the morning he accompanied the Police who came in a Police vehicle to Hari Mandir and he found Aghanu's (deceased) dead body lying by the side of the Mandir and saw cut on his neck and chest. He also stated that the Police apprehended the appellants at tiniali. In cross this witness stated that the two appellants had been in the spell since the "Barsabah". It was also stated that the appellants and the deceased had no enmity. After the appellants came out from the Jail they were taken to Tezpur Medical Hospital. 10. From the evidence of PW 2, 3 and 5 it clearly evident that they had not seen the occurrence. Being the co-villagers, they came to the place of occurrence only after coming to know about the said incident and found the dead body of the deceased lying by the side of the Mandir and saw the cut on the neck and chest of the deceased. It was only the PW 4, sole eye witness of the incident who categorically narrated the story of the prosecution making himself reliable for conviction of the appellants. But it is also clearly evident from his deposition that it was the appellant No.l, Sibo Kurmi who cut the deceased's throat with a dao resulting in the instant death of the deceased Aghanu. It was adduced by the said witness candidly and without any hesitation that it was the appellant Sibo Kurmi who cut the chest of the deceased with a dao in order to open the same and thereby exposed the heart. 11. The PW 4 nowhere in his evidence ever adduced regarding participation of the appellant No.2, Padmeswar Kurmi in cutting the throat of the deceased as well as opening the heart by cutting the chest. The participation of the appellant No. 2 in the incident was only to the extent of felling the deceased by hitting him on the head with brick along with appellant No. 1, Sibo Kurmi. The participation of the appellant No. 2 in the incident was only to the extent of felling the deceased by hitting him on the head with brick along with appellant No. 1, Sibo Kurmi. Doctor, PW 1, also opined that the deceased suffered 2 head injuries with one sharp cut of 3" x 2" over the back of the head and other of size 2" x 2" over the frontal region, both were being scalp depth. He also deposed that both the sharp weapons and blunt objects were used for causing injuries to the deceased. According to PW 4, appellant No.2 was involved only in hitting the head of Aghanu by brick. Considering the said participation of appellant No.2, Padmeswar Kurmi as per evidence of PW 4. we do not see any reason for his conviction under Section 302, IPC. At best he should have been convicted for voluntarily causing grievous hurt as covered under Section 325, IPC. 12. The learned counsel appearing on behalf of the appellants strenuously argued that both the appellants could not be convict;:" only on the basis of the evidences of PW 4, the sole eye witness of the incident, being related and interested witness when the evidence of PWs 2,3 and 5 as stated above are apparently contradictory and uncorroborative. Further the learned counsel for the appellants contended that although the said function was relating to female devotee, despite their presence, not a single female devotee had been examined by the prosecution and that itself cast doubt on the entire prosecution case. 13. We do not find any force on those contentions inasmuch as there is no cogent or overwhelming reason as to why the evidence of PW 4, a close relation of both the deceased and the appellants, would be disbelieved and discarded. We find the deposition of PW 4 wholly reliable and believable. It is to be noted that PW 4 was not only related to the deceased alone who was the son of his paternal uncle but the appellants were his own grand sons. In that view of the factual position, we are of the firm view that the evidence of PW 4 is found to be quite impartial and without having any interest. From the perusal of the evidence also we do not find that this witness was ever inimical against the appellants. In that view of the factual position, we are of the firm view that the evidence of PW 4 is found to be quite impartial and without having any interest. From the perusal of the evidence also we do not find that this witness was ever inimical against the appellants. It is really heartening and praiseworthy that a grand father had come up to adduce evidence against his grand sons in support of the prosecution case in order to prove the factum of killing of the deceased who was on the other hand, the son of his paternal uncle. 14. It was also contended on behalf of the appellants that both the appellants at that time were mentally derailed persons as evident from the deposition of PW 5 who stated that the appellants were taken to Tezpur Mental Hospital immediately after they came out from Jail. But we cannot subscribe to the said submission advanced on behalf of the appellants. From the materials available on record it clearly appears that at no point of time even during the trial, the plea of insanity of the appellants was ever taken by the defence. Even the said submissions was not supported by any medical evidence as revealed from the record. 15. Considering the entirety of the factual position, as revealed on the appreciation of the evidence of the witnesses particularly the PW 4, we are of the opinion that the conviction of the appellants on the basis of evidence of PW 4 was absolutely lawful and justified. It is found that the prosecution successfully proved its case beyond reasonable doubt against the appellants. 16. One should believe God and keep faith on Him. But such belief or faith must not be based on superstition. Superstition . is a religious credulity and sheer madness. It has the capability to lead a person to anywhere. The instant case is a direct reflection of such superstition prevailing in the society and as a sequel of which an innocent man in the person of the deceased had to lay down his life and became the victim of such frenzied belief. It transpires from evidence of the witnesses that both the appellants were possessed by the Goddess and under the influence of the Goddess they alleged that the deceased unleashed evil spirit by practising sorcery. It transpires from evidence of the witnesses that both the appellants were possessed by the Goddess and under the influence of the Goddess they alleged that the deceased unleashed evil spirit by practising sorcery. As a result a heinous crime of such nature had to be committed. The nature and manner in which the present crime was committed, the civilized society must be shocked and frozen. The appellant No.1, Sibo Kurmi not only severed the head of the deceased but also exposed his heart by cutting the chest with the dao simply due to superstition. As already seen, the injuries found by the doctor had fully corroborated to such action of the appellant No.1. 17. From the proper appreciation of the evidence as discussed above and on perusal of the impugned judgment and order, we are of the considered view that the conviction and sentence of appellant No.1, Sibo Kurmi under Section 302 IPC shall stand sustained without warranting any interference by this Court. 18. As regards the conviction of appellant No.2 Padmeswar Kurmi, we do not find any material, as indicated above, against him in order to rope him under Section 302 IPC. He is found to be involved only in causing grievous hurt by hitting the deceased with a brick along with the appellant No.l resulting in his felling. Accordingly, we find him guilty of committing an offence of causing grievous hurt and he should appropriately be convicted under Section 325 IPC. We accordingly set aside his conviction under Section 302 IPC as given by the Sessions Judge and in lieu thereof we convict the appellant No.2, Padmeswar under Section 325, IjPC. As a result, the sentence of the appellant No.2 is altered from imprisonment for life to imprisonment for 5 (five) years. The period of detention undergone by Padmeswar Kurmi, appellant No. 2 be set/off against such modified sentence of imprisonment 19. Consequently, the appeal is dismissed subject to alteration in regard to conviction and sentence of appellant No.2 to the extent indicated above. Appeal dismissed.