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2005 DIGILAW 134 (GAU)

Kailash Bhumij v. State of Assam

2005-02-16

ANIMA HAZARIKA, P.G.AGARWAL

body2005
JUDGMENT A. Hazarka, J. 1. The appeal is from jail, who stands for trial in Sessions Case No. 66(T)/96 before the learned Sessions Judge, Tinsukia being G.R. Case No. 1685/95 under Section 302 IPC. 2. The Appellant has questioned the legality and validity of the conviction and sentence passed by learned Sessions Judge, Tinsukia in Sessions Case No. 66(T)/96 convicting, the accused Kailash Bhumij under Section 302 IPC, to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/- in default rigorous imprisonment for further period of two years. 3. The prosecution case was initiated on a verbal information made by one Ram Chandra Yadav on 1.12.95 at about 1.40 PM before the Investigating Officer i/c. informing him that one Kailash Bhumij had assaulted with a dao resulting in death of Bikram Bhumij. On receipt of the said verbal information he made G.D. Entry No. 6, dated 1.12.95. Thereafter, he proceeded to the place of occurrence, drew a sketch map and had seen a dead body of the boy lying on the road with cut injury. The head was almost severed from the trunk. He also held the inquest on the dead body of the deceased. The accused was handed over to the I/O on being produced by the villagers and he seized the dao, which was produced by the villagers. The I/O obtained the ejahar from the father of the deceased. On completion of the enquiry and after collecting post Mortem Report, he submitted the chargesheet. 4. During the trial, the prosecution has examined 13 witnesses in support of their case. The Defence examined none. The case being triable by the Sessions Court, the case was committed to the learned Sessions Judge, Tinsukia by the Judicial Magistrate, 1st Class, on 30.5.96. 5. On receipt of the case record, the learned Sessions Judge framed the charge Under Section 302 IPC and explained the same to the accused who pleaded not guilty and stood for trial. 6. P.W. 1, Dr. Rituraj Chaliha, who held the post mortem report on the dead body of Bikram Bhumij has found the following injuries; (1) An incised wound extending from the left side of the neck upto the front of the angle of the mandible on the right side measuring 33x3 cm cutting the trachea, oesophagus and cervical vertebra. 6. P.W. 1, Dr. Rituraj Chaliha, who held the post mortem report on the dead body of Bikram Bhumij has found the following injuries; (1) An incised wound extending from the left side of the neck upto the front of the angle of the mandible on the right side measuring 33x3 cm cutting the trachea, oesophagus and cervical vertebra. (2) Two more incised wound were present over the neck near injury No. 1 and they marged with it. (3) An incised wound over the right cheek measuring 3X1.5cm x skin deep. (4) An incised wound over the left temporal region measuring 2x1 cm x skin deep. In the opinion of the doctor, the death was instantaneous, as a result of injury described. All the injuries are ante mortem being caused by heavy sharp cutting weapon and homicidal in nature. Ext. 1 is the post mortem report. Ext. 1(1) is his signature. Ext. 2, 3, 4 and 5 are inquest report, dead body, challans, command certificate and forwarding letter received with the dead body Ext. 2(1), 3(1), 4(1), 5(1) are his signatures. In cross examination the doctor has deposed that, while causing the injuries to the deceased, he was lying down on bed. 7. P.W. 2, Gautam Bhuyan is not the eye witness of the occurrence. He is the seizure witness of Ext. 6, which is dao, 6(1) is his signature. Material Ext. 1 is the said dao (measuring about 90" in length with a wooden handle measuring about 6¼" to 1½". In his cross examination, he has deposed that the people told him that the accused was a mad man. 8. P.W. 3 is not the eye witness of the occurrence. He was the seizure witness of Ext.6. Ext. 6(2) is his signature. In cross examination, he had deposed that the accused was tied up, he thought he was a culprit. 9. P.W. 4 is Badri Nath Yadav, in his deposition has categorically stated that he saw the accused running after for cutting the boy. The accused had a 'Khamti dao" in one hand and one 'bauka' in his Anr. hand. This witness gave a lathi blow to the accused and he fell down. Thereafter, he along with Ors. , fastened him and snatched away the dao. He informed the police as stated hereinabove. Material Ext. 1 is the dao, which was stained with blood. The accused had a 'Khamti dao" in one hand and one 'bauka' in his Anr. hand. This witness gave a lathi blow to the accused and he fell down. Thereafter, he along with Ors. , fastened him and snatched away the dao. He informed the police as stated hereinabove. Material Ext. 1 is the dao, which was stained with blood. The police came and arrested the accused, took away the dead body with dao. In cross examination, he has admitted that, he did not see the accused cutting the boy. 10. P.W. 5 is the eye witness of the occurrence. He deposed, while he was going to the paddy field, he heard some sound and he turned his head, he saw, accused Kailash cutting the deceased with dao. The deceased fell down and even thereafter, the deceased was assaulted with the dao. He saw the incident from a distance of about 2 nals (8 cubits). He came running to stop the accused, but the accused threatened him to cut with the same dao. He raised hullah and the villagers apprehended the accused with the dao. In cross examination, the defence has failed to bring anything in support of the accused. 11. P.W. 6 is also one of the eye witnesses, who saw the accused cutting the deceased with a dao from his house. He raised a hullah, people came and apprehended the accused. In his deposition, he has deposed that one Bihari person gave a lathi blow on the hand of the accused and the dao fell down from his hand. In his cross examination, he has stated that, he was inside the house, when the deceased was assaulted and hearing the hullah he came out, he saw the accused at the place of occurrence with dao and 'biria'. He also chased the accused. He did not know why the boy was assaulted. In the last part of the cross-examination he deposed that he came to know about the said incident from Nagen Saikia, P.W. 5. 12. P.W. 7 is the father of the deceased. He is not the eye witness of the occurrence. Hearing a hullah that the boy was being cut by the accused, he went to the place of occurrence and saw that his son was lying dead with bleeding injuries. The people told him that the accused was apprehended by the villagers, after chase. He is not the eye witness of the occurrence. Hearing a hullah that the boy was being cut by the accused, he went to the place of occurrence and saw that his son was lying dead with bleeding injuries. The people told him that the accused was apprehended by the villagers, after chase. Thereafter, he informed the police. Ext. 7(1) the ejahar, Ext. 7(1) is his signature. In cross, he has admitted that he has not seen the assault on his son by the accused. He did not find the accused at the place of occurrence when he arrived there. He saw cut marks on the neck of his son and he could not say why his son was assaulted. 13. P.W. 8 is the signatory of the ejahar. He wrote the ejahar at the advice of P.W. 7. 14. P.W. 9 is the eye witness. He has deposed that both the accused and the deceased are his co-villagers. On the fateful day, at about 11:00 AM, he was proceeded to friend at Dipu Line Bagan of Panitola T.E. and saw the accused holding a dao on his shoulder. At that time the deceased was returning from the school. Then the accused said the deceased that he would kill. Immediately thereafter, he cut the boy with the dao. The deceased fell down with bleeding injury on his neck and died on the spot and the accused ran away from the place of occurrence and the villagers ran after him to apprehend him. 15. P.W. 10 is an eye witness in respect of assault on Sachin by the accused with a dao. He saw that the accused had assaulted Sachin with dao. As he was accompanying Sachin carrying paddy, the accused chased him also with a the dao. After some time the accused left the place. Later on he came to know that the accused had cut Bikram Bhumij which resulted in his death. He was not cross examined by the defence. 16. P.W. 11 is the Investigating Officer who had investigated the case and submitted the charge sheet, which has already been narrated hereinabove. 17. P.W. 12 is Doctor, who had examined Sachin Manki at St. Luke Hospital, Tinsukia and found the following injuries; Patient conscious and oriented. There were two cut wounds on the posterior aspect of the head: (1) Size 2½"x¼x¼". (2) Size 3"x¼x¼". 17. P.W. 12 is Doctor, who had examined Sachin Manki at St. Luke Hospital, Tinsukia and found the following injuries; Patient conscious and oriented. There were two cut wounds on the posterior aspect of the head: (1) Size 2½"x¼x¼". (2) Size 3"x¼x¼". The wounds were fresh with bleeding., X-ray showed no fractured, type of weapon is sharp. Nature of injury-simple. In the opinion of the doctor, the injury is simple and type of weapon used is sharp. Ext. 12 is his report. Ext. 12(1) is his signature. 18. P.W. 13 has been examined to prove Ext. 13 to 17 of the relevant G.D. Entries No. 6, 7, 8, 10 and 14 of Panitola out Post, in connection with the murder of school boy and son of Bikram by the accused. As per GD Entry No. 6, one Ram Chandra Yadav had informed the Outpost about the murder verbally. 19. After the examination of the prosecution witnesses were over the accused was examined Under Section 313 Code of Criminal Procedure and the questions asked by the Court has been denied by him. 20. We have heard Smti. Bhumika Choudhury, learned Amicus curiae and Mr. F.H. Laskar, Public Prosecutor, Assam. 21. On a close scrutiny of the materials on record and arguments advanced by the counsel of the parties, we are of the firm opinion that the prosecution has able to prove the guilt of the accused-beyond all reasonable doubt. 22. In the instant case, two doctors were examined by the prosecution, P.W. 1 is the doctor, who held the post mortem on the deceased and has found four injuries on the person of the deceased and injury No. 1 is fatal. P.W. 12, who examined Sachin Manki has found two injuries, which was simple in nature. Therefore, the admitted facts is that, the accused had assaulted with dao on the body of the deceased and injuries were caused on the person of Sachin Manki. P.W. 4, P.W. 5, P.W. 6, P.W. 9 an P.W. 10 are the eye witnesses to the occurrence. P.W. 6 is the person, who had deposed that he had seen accused with one "Khamti Dao" in one hand and one 'bauka' in Anr. ; he is the witness; who gave lathi blows in the hand of the accused and he had personally informed the police about the incident. He had proved material Ext. 1. P.W. 6 is the person, who had deposed that he had seen accused with one "Khamti Dao" in one hand and one 'bauka' in Anr. ; he is the witness; who gave lathi blows in the hand of the accused and he had personally informed the police about the incident. He had proved material Ext. 1. P.W. 5 had deposed, he saw the accused cutting the deceased with dao. P.W. 6 also deposed that he saw the accused cutting the deceased with dao, P.W. 9 has deposed that the accused told the boy, that he would kill him; immediately he cut the boy (deceased) with dao. P.W. 10, is the eye witness with regard to assault on Sachin with a dao. 23. In the prosecution witnesses, there is no major discrepancy or material omission in the statements of the eye witnesses. Material omission, if any, being not vital, can not discard the veracity of the eye witnesses. 24. Section 300 IPC dealt with the intention to kill and the offence regarded as murder; culpable homicide not amounting to murder, depends upon the degree of risk to human life. If death is likely to result, it is culpable homicide. The only inference can be drawn in the instant case is that, the accused gave blows intended to cause such bodily injury as would be sufficient in the ordinary course of nature to cause death and as such, the case falls within Section 300 IPC. 25. In the present case, admittedly the deceased was inflicted four blows with a dao, out of which three were on neck and head, which are the most vital part of a human body, which caused the death of the victim. 26. Therefore, this Court hold that there is no merit in the appeal and accordingly the appeal is dismissed and the judgment and order dated 10.6.98 passed by Sessions Judge, Tinsukia in Sessions Case No. 66(T)/98, convicting the accused Under Section 302 I.P.C. and sentencing him to undergo rigorous imprisonment of life and to pay a fine of Rs.5000/-, in default rigorous imprisonment for a further period of two years is affirmed. Appeal dismissed.