Research › Search › Judgment

Gauhati High Court · body

2005 DIGILAW 137 (GAU)

Mangloo Proja v. State of Assam

2005-02-17

ANIMA HAZARIKA, P.G.AGARWAL

body2005
JUDGMENT A. Hazarika, J. 1. The present appeal has been preferred by the accused Mangloo Proja from jail assailing the judgment passed by the learned Sessions Judge, Sibsagar in Sessions Case No. 77(S.C.) of 1997 arising out the Borhat Police Station Case No. 105/95 under Section 302 I.P.C., which is corresponding to G.R. Case No. 538/95 and committed by the Sub-Divisional Judicial Magistrate, Charaideo Sonari convicting the Appellant and sentencing him to undergo rigorous imprisonment for life and also to pay a fine of Rs.1000/- in default of payment of fine, to suffer Anr. 6 months rigorous imprisonment under Section 302 I.P.C. 2. The facts leading to the case is narrated hereunder, as follows: a) The father of the accused had lodged an ejahar to the Borhat police station on 27.11.95 stating that the accused had kept his second wife Smti Dewari Praja in his room since the day before, bolting the door. The accused did not open the door till the morning and consequently thereunder Borhat Police Station was informed. The police came and forcibly opened the door and found that the accused killed his wife cutting her with a sharp weapon. Besides the killing he injured himself in his hands, feet and head, hence requested to investigate the matter. b) The police on receipt of the ejahar registered a case being Borhat P.S. No. 105/95 under Section 302 / 309 I.P.C. and investigate the matter. The accused was persuaded to open the door and accordingly the accused opened the door and accused was taken into custody. The I.O. made an inquest on the body of the deceased. The accused was sent to Civil Hospital at Sibsagar for treatment. The accused was in hospital from 27.11.95 to 15.12.95. The police had seized the dao from the hands of the accused. Thereafter the charge sheet was submitted under Section 302 / 309 I.P.C. The learned Sub-Divisional Magistrate, Charaideo, Sonari vide order dated 14.7.97 committed the case to the learned Sessions Judge, Sibsagar since the case was triable exclusively by the Court of Sessions. c) After the case was committed to the Court of Sessions at Sibasagar, the learned Sessions Judge vide order dated 11.8.97 took the cognizance under Section 302 I.P.C. and read out the charge to which the accused pleaded not guilty and stands for trial. 3. c) After the case was committed to the Court of Sessions at Sibasagar, the learned Sessions Judge vide order dated 11.8.97 took the cognizance under Section 302 I.P.C. and read out the charge to which the accused pleaded not guilty and stands for trial. 3. During the trial the prosecution had examined 6 witnesses including the Doctor and Investigating Officer. Admittedly there was no eye-witnesses to the occurrence of incidence and the case rests on circumstantial evidence. Therefore, in order to prove the guilt of the accused certain unimpeachable evidence is required to be brought by the prosecution before the accused is convicted under Section302 I.P.C. Now this Court will scrutinize the entire evidence on record to appreciate the charge under Section 302 I.P.C. 4. To appreciate the said factum of guilt the prosecution has examined P.W.I, who is admittedly not the eye witness to the said occurrence. He deposed that he was the Secretary of Village-Defence Party of Bhuyan Khat Tea Estate to which the accused also belonged. At the time of occurrence the accused lived along with his wife in the same house with his father and the information of the occurrence that took place was told by Brajen Kakoti, the clerk of the tea garden. Thereafter Brajen Kakati wrote a paper and asked him to submit the same to the police station. Accordingly, the police came and he accompanied the police to the house of the accused. The police opened the door and took the accused out of the house. At that time the victim was inside the house along with the accused. Accused had a cut injury in his hand. There was no external injury on the body of the victim. He could not make out the cause of her death. The door of the house of the accused was closed when he along with the police went there. It was the police who opened the door and dead body of the wife of the accused was found inside. Two of them were found when the door was opened. The wife was found dead lying on the ground under the bed. When they went inside the house there was none except the victim and the accused. Inside the house the police seized a dao from the hand of the accused. The dao was seized in his presence. Ext-1 is the seizure list and Ext. The wife was found dead lying on the ground under the bed. When they went inside the house there was none except the victim and the accused. Inside the house the police seized a dao from the hand of the accused. The dao was seized in his presence. Ext-1 is the seizure list and Ext. 1(1) is his signature. In his cross-examination he had deposed that the police had broken the window and threatened the accused and it was only then the accused had opened the door himself. After the window was broken he had looked through it and found the dead body of the accused person's second wife lying under the bed. The left wrist of the accused bore a slight cut injury. The police interrogated him and he had seen the police bringing out the dao from inside the house, the dao was in his hand. After the police asked him to lay down the dao, the accused had done so. The other suggestion made to him had been denied by P.W.1. 5. The prosecution had examined P.W. 2 who had deposed on the material point stating that he was present when police took the dao from the possession of the accused person and seized the same by seizure list vide Ext. 1, Ext. 1(2) is his signature. The defence did not cross-examined him. PW-3 wrote the ejahar vide Ext-2 as stated by the father of the accused P.W. 3 which was read over to him and found correct and thereafter he put his thumb impression on the ejahar. Ext. 2(1) the endorsement in L.T.I. of P.W. 3 and Ext. 2(2) is his signature. The father of the accused was examined as P.W. 4 by the prosecution. In his deposition he had admitted that the accused is his son and the deceased is his daughter-in-law. The accused was living with the deceased separately. He was not present in his house when the occurrence took place. The following morning after the occurrence when he returned he had found that the door of the accused was closed. Then he had suspected something and the police was informed verbally. The police came and had broken the door of the house and he along with the police had entered the house. The following morning after the occurrence when he returned he had found that the door of the accused was closed. Then he had suspected something and the police was informed verbally. The police came and had broken the door of the house and he along with the police had entered the house. Inside the house he had found his daughter-in-law lying dead on the ground and the accused was also inside the house and the accused had injury in his hand, feet and head. In the place of occurrence he lodged the ejahar written by P.W. 3 at his instance. The police had made inquest on the dead body. Police arrested the accused. In cross-examination he had deposed that on the night of the occurrence there was cinema show in the garden and he had gone to witness the cinema but he had not seen the accused in the cinema hall. The prosecution had examined the Doctor as P.W. 5 who had made the autopsy on the dead body. The Doctor had found the following injuries. 1) One incised wound obliquely placed over the left side of the neck extending upto jaw, size 15c.m. x 6c.m. x 4c.m. 2) One incised wound obliquely place over the left side of the neck below wound No. 1 of the size 20c.m. x 5 c.m. x 3 c.m. 3) One incised wound over the left jaw of the size 2 c.m. x 1 c.m. x 1 c.m. 4) One incised wound over the left ear extending upto mastoid process of the size 5 c.m. x 1 c.m. x 3 c.m. 5) One incised wound over the left ear below injury No. 4 of the size 4 c.m. x 1 c.m. x 3 c.m. 6) One incised wound above left eye of the size 1.5 c.m. x 1 c.m. x 1 c.m. 7) One incised wound over the left check of the size 5 c.m. x 1/2 c.m x 1 c.m. 8) Fracture of the left mandible corresponding to the wound No. 1. The injuries are homicidal and antemortem in nature and caused by sharp-cutting weapon. The doctor opined that death was due to shock and haemorrhage due to multiple cut injuries. Injury Nos. 1 and 2 are sufficient in the ordinary course of nature to cause death of a person. The injuries are homicidal and antemortem in nature and caused by sharp-cutting weapon. The doctor opined that death was due to shock and haemorrhage due to multiple cut injuries. Injury Nos. 1 and 2 are sufficient in the ordinary course of nature to cause death of a person. Doctor opined that the injuries found could be inflicted by a dao like M. Ext. 1. Ext. 3 is the postmortem report and Ext. 3(1) is his signature. In cross-examination he had deposed that all the injuries are located on the facial region. No injury was found on the other parts of the body of the deceased. 7. The investigating Officer had been examined by prosecution as P.W. 6. He deposed that one Charan Das Parika appeared at the police station and informed that at about 7 P.M. in the night of 26.11.95, the accused entered into the dwelling house with the second wife after driving out all the inmates of his house and did not allow anyone to enter his house and nobody knows what had happened inside the house. Accordingly he made G.D. entry being Borhat P.S. G.D. entry No. 529 dated 27.11.95. Ext. 4 is the copy of the G.D. entry. Thereafter he alongwith other police officials went to the garden accompanied by Shri Charan Das Parika and went to the house of the accused. The house was pointed out by the father of the accused. He found the room closed from inside. He persuaded the accused who was inside the house to open the door. The accused opened the door and came out armed with a dao. Then he had entered into the said room and found that his second wife Smti Debari Praja lying dead with bleeding injuries. He thereafter seized the dao from the possession of the accused by seizure list, Ext. 1 in presence of the witnesses. Ext. 1(3) is his signature. M. Ext. 1 is the seized dao. He made the inquest report over the dead body of the deceased. Ext. 5 is the inquest report. Ext. 5(1) is his signature. He thereafter forwarded the dead body for autopsy examination to Sibsagar Civil Hospital. Since the accused was also injured, he was also sent to Sibsagar Civil Hospital for treatment. He recorded the statement of the accused. He made the inquest report over the dead body of the deceased. Ext. 5 is the inquest report. Ext. 5(1) is his signature. He thereafter forwarded the dead body for autopsy examination to Sibsagar Civil Hospital. Since the accused was also injured, he was also sent to Sibsagar Civil Hospital for treatment. He recorded the statement of the accused. Then the father of the accused lodged a formal ejahar at the place of occurrence and prepared a sketch map of the place of occurrence with index. Ext. 2 is the said F.I.R. and Ext. 6 is the rough sketch map. Ext. 6(1) and Ex. (2) are his signature. After the release from the hospital he had arrested the accused and forwarded him to judicial custody. Thereafter he was transferred and Shri Nityananda Gogoi took over the charge of the case and he had submitted the charge- sheet against the accused under Section 302 I.P.C. In the cross-examination some suggestions' were made to which he had denied. 8. We have heard the argument advanced by Shri Kamalesh Kumar Gupta appointed as Amicus curiae to represent the Appellant and the learned Public Prosecutor, Government of Assam. 9. Advancing the argument, learned Amicus curiae has drawn our attention in regard to the information received by the police vis-a-vis the F.I.R. lodged by P.W. 4 vide Ext. 2. There are some discrepancies relating to lodging of F.I.R. and the action taken by the police. The deposition of P.W. 1 would show that he had given the verbal information to the police on which a G.D. entry was made being entry No. 529 dated 27.11.95 vide Ext. 4. Thereafter the police accompanied by P.W. 1 went to the place of occurrence and investigated the matter. According to P.W. 4, the father of the accused, he saw the room was closed form inside and sensing some foul play, the police was informed. The third version of P.W. 4 was that on reaching the police at the place of occurrence after opening the door, formal F.I.R. was lodged by P.W. 4 vide Ext.2. The scribe of Ext. 2 was P.W. 3. According to P.W. 1 a written paper was handed over to him by P.W. 3 requesting him to submit the same to the police station where as P.W. 3 is silent about the same. The scribe of Ext. 2 was P.W. 3. According to P.W. 1 a written paper was handed over to him by P.W. 3 requesting him to submit the same to the police station where as P.W. 3 is silent about the same. However, from the evidence of the prosecution it is established that the police acted upon on a verbal information made by P.W. 1, on which the G.D. entry was made and no prejudice was caused to the accused in the facts and circumstances of the case. 10. The second argument advanced by the learned Amicus curiae is that the accused raised plea of alibi when examined under Section 313 of the Code of Criminal Procedure. The question put to him "would you say something more in your defence." Answer was "No, I had gone to watch a movie with my first wife. I was not at home". In order to succeed the plea of alibi the defence did not examine the first wife. Moreover the father of the accused P.W. 4 has stated that he did not find the accused in the cinema hall and therefore the said plea falls. 11. Now the question that requires for determination as to whether the prosecution has established the chain of circumstances leading to the guilt of the accused. Admittedly there are no eye witnesses to the occurrence. According to the witnesses more particularly P.W. 4, father of the accused would show that the accused and his second wife were in the house closing the door till the police arrived at the place of occurrence. Wife found dead. Evidence showing that no third person visited their house during that period. The police opened the door by persuading the accused. The accused came out with a dao in his hand. There were injuries on the body of the accused. Accused could not explain the cause of death of the deceased and the injuries sustained by him. Considering the weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given and size of injuries, 7(seven) in number along with other factors mentioned hereinabove, this Court holds that the circumstances prove that it was accused alone who has committed the murder. 12. Considering the weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given and size of injuries, 7(seven) in number along with other factors mentioned hereinabove, this Court holds that the circumstances prove that it was accused alone who has committed the murder. 12. In the result the appeal has no merit and therefore, dismissed, affirming the judgment dated 11.10.99 passed by the learned Sessions Judge, Sibsagar in sessions case No. 77(SC) 1997 convicting the accused under Section 302 I.P.C. and sentencing the accused to undergo imprisonment for life and also to pay a fine of Rs.1000/- in default of fine to suffer Anr. 6 months R.I. under Section 302 I.P.C. Appeal dismissed.