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2005 DIGILAW 517 (GAU)

Kameswar Das v. State of Assam

2005-07-19

ANIMA HAZARIKA, D.BISWAS

body2005
JUDGMENT Anima Hazarika, J. 1. The lone accused has been convicted by the trial Court under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life, along with fine of Rs. 2000/- (Rupees two thousand), in default of payment another 6 (six) months rigorous imprisonment. The instant appeal has been preferred from jail by the accused challenging the legality and validity of the conviction and sentence passed by the trial Court. 2. Prosecution case in short was that on 15-7-1995 at about 7.30 p.m. the victim went to the house of the accused to settle the dispute arose over a betel nut tree belonging to the accused fell on the dwelling house of the victim due to storm. The said betel nut tree was cut by the victim and kept in the side of the residence of the accused and as a result the mother of the accused had continuously abusing the family of the victim. As soon as the victim reached the residence of the accused, he was hacked with a dao by the accused and the victim died on the spot. 3. The said occurrence was reported to the Officer-in-Charge, Simla Police Outpost on 16-7-1995 at 5 a.m. by filing a written ejahar by the mother of the victim, disclosing the names of the accused persons, which was entered being G.D.E. No. 180 dated 16-7-1995 and the said ejahar was forwarded to the Officer-in-Charge, Patacharkuchi P.S. for registering a case and accordingly a case was registered being Patacharkuchi P.S. Case No. 140/95 under Section 109/302/34, IPC. 4. Police after registering the case took up investigation, made inquest on the dead body, prepared the sketch map of the place of occurrence, recorded the statements of witnesses and arrested Smt. Anjana, sister of the accused, mother of the accused Kameswar, who led to the discovery of the weapon used and accordingly seized. The dead body was sent to Barpeta Civil Hospital for autopsy. After completion of investigation thereof submitted charge-sheet under Section 302, IPC. On receipt whereof the learned Magistrate took cognizance being G.R. Case No. 1014 of 1995 and committed to the Court of Session, Barpeta to face trial. 5. The dead body was sent to Barpeta Civil Hospital for autopsy. After completion of investigation thereof submitted charge-sheet under Section 302, IPC. On receipt whereof the learned Magistrate took cognizance being G.R. Case No. 1014 of 1995 and committed to the Court of Session, Barpeta to face trial. 5. On receipt of the case records, the learned Sessions Judge, Barpeta, took cognizance of the case under Section 302, IPC, being Sessions Case No. 32 of 1999 on 23-8-1998 and explained the charge to the accused to which he pleaded not (sic). 6. During trial, the prosecution examined 8 witnesses, out of whom, informant Smt. Harmaya Das (P.W. 1) claimed to be eye-witness of the alleged occurrence. Shri Sirajul Islam (P.W. 8) is the Police Officer who upon receipt of the first information report, went to the place of occurrence, after taking up the charge of investigation. Dr. Chittaranjan Das (P.W. 7) is the doctor, who conducted Postmortem examination on the body of the deceased. Shri Sabindra Chandra Das (P.W. 2), Shri Jagadish Kakati (P.W. 3), Shri Dilip Kumar Das (P.W. 4), Shri Prahalad Roy (P.W. 5) and Shri Kanak Deka (P.W. 6) are not the eye-witnesses of the occurrence. However, Shri Prahlad Ray (P.W. 5) and Shri Kanak Deka (P.W. 6) are the seizure witnesses. 7. First we proceed to consider the statement of only eye-witness of the occurrence P.W. 1, who happens to be the mother of the deceased. P.W. 1 lodged the ejahar vide Ext. 4. She has stated that the accused is the son of her elder brother. At the time of occurrence she was present at the place of occurrence. The occurrence took place on 15-7-1995 in the evening. The victim went to the residence of the accused, to resolve the dispute over a betel nut tree which fell down during a storm inside the boundary of the residence of the victim belonging to the accused. The betel nut tree damaged a wall and as a result the victim cut the betel nut tree and kept in the side of the residence of the accused and as a result the mother of the accused used to abuse the victim. The victim took up the matter with his mother asking her as to why she has not taken up the matter so that the misunderstanding that has been cropped up may be removed. The victim took up the matter with his mother asking her as to why she has not taken up the matter so that the misunderstanding that has been cropped up may be removed. After saying these few words he went to the residence of the accused and talked to the father of the accused and while he was talking, the accused came from behind and hacked him with a dao. In the cross-examination P.W. 1 did not implicate Smt Anjana, the sister of the accused and the mother of the accused though in the ejahar she had mentioned their names in regard to instigation for killing the deceased. She has further stated that she saw the accused ran after hacking. However she has admitted that she did not follow the deceased. Other suggestions put to her have been denied. 8. On 16-7-1995 the dead body was sent to Barpeta Civil Hospital for Postmortem examination. Dr. Chittaranjan Das (P.W. 7) conducted the Postmortem examination on the dead body of the deceased and found the following injuries on his person : A sharp cut wound 8 x 3 x 4 cm. present over posterior lateral aspect of the neck. The muscle and vessels are cut. Injuries are ante-mortem in nature. In the opinion of the doctor the cause of death is due to haemorrhage and shock. Ext. 5 is the postmortem report and Ext. 5(1) is his signature. In cross-examination P.W. 7 has admitted that he had not mentioned the type of weapon used. If the weapon had been produced during his examination he could have ascertained whether injuries were caused by that weapon. 9. Apart from the medical evidence, the prosecution case is supported by the objective findings of the police. The Investigating Officer Sirajul Islam (P.W. 8) when visited the place of occurrence, found at the place of occurrence marks of blood. The accused was arrested and he confessed his guilt. The accused led to the jungle in the rear of. Lankeswar's house and from there he produced a dao which was used in the murder by him. The dao bore the blood mark. The offence article was seized vide Ext. 3, in presence of P.W. 5 and P.W. 6, P.W. 8 further stated that on 20-7-1995, when he received his transfer order, he handed over the case Diary (CD in short) to Mr. The dao bore the blood mark. The offence article was seized vide Ext. 3, in presence of P.W. 5 and P.W. 6, P.W. 8 further stated that on 20-7-1995, when he received his transfer order, he handed over the case Diary (CD in short) to Mr. Bijoy Das, his succeeding Officer, who, it appears from CD, has sent the dao to Forensic Science Laboratory for the examination and also collected the report. The report mentioned that the blood sticking to the dao is of human beings. Thus the objective findings of the Investigating Officer fit in with the prosecution case that the occurrence had taken place at the place where the deceased went to settle the dispute as stated by P.W. 1, the only eye-witness in the case and the deceased died due to cut injuries inflicted by the accused with the dao. 10. Coining to the ocular version of the occurrence, the prosecution has relied upon the evidence of P.W. 1. Though P.W. 1 is the mother of the deceased, her evidence cannot be brushed aside being the highly interested witness. It may not be lost sight of the fact that the accused is the son of her own elder brother and therefore her evidence can be accepted as trustworthy and on a solitary eye-witness the conviction can be maintained. The evidence of P.W. 2 would show though he was not the eye-witness of the occurrence, but he was the witness who had reached the place of occurrence immediately after hearing about the same and saw the deceased lying with the neck cut and he along with others brought the (sic) occurrence he could know that the accused had cut Biran. He also saw blood at the place of occurrence and the chain of circumstances thus has proved the guilt of the accused beyond all reasonable doubt. 11. Now coming to the disclosure of article used in the commission of offence as to whether hit by Sections 24, 25 and 26 of the Evidence Act. It is not disputed that consequent upon the disclosure of the accused regarding the article used in committing the crime, the article was actually recovered at the Instance of the accused from the place where the article had been hidden by him. The dao used in the commission of offence recovered consequent upon making of the statement has been proved by the prosecution. The dao used in the commission of offence recovered consequent upon making of the statement has been proved by the prosecution. Moreover, the recovery of dao in presence of the witnesses stand established vide Ext. 3 by the testimony of P.W. 5, P.W. 6 and P.W. 8 and their testimony cannot be discarded in the facts and circumstances of the case. 12. It may be pertinent to mention that the accused has been examined under Section 313 of the Code of Criminal Procedure and he has failed to explain the circumstances leading to the discovery of the offensive dao used in the crime and therefore this Court is not inclined to interfere with the conviction and sentence passed by the learned Sessions Judge, Barpeta in Sessions case No. 32 of 1999 under Section 302, IPC. 13. In the result the appeal fails, the conviction and sentence passed against, for which the appeal arises, stands confirmed. Appeal dismissed