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2006 DIGILAW 470 (GAU)

State of Arunachal Pradesh v. Tame Hasi

2006-05-18

B.S.REDDY, H.N.SARMA

body2006
JUDGMENT H.N. Sarma, J. 1. This Criminal Reference arises out of the judgment and order dated 18.2.2003 passed in Case No. GR111/99 by the Deputy Commissioner-cum-Ex. Officio Sessions Judge, Papum Pare District, Yupia, Arunachal Pradesh convicting the accused under Sections 452/326/307 /34 IPC and sentencing him to undergo Rigorous Imprisonment for a term of 10 years and further imposing a fine of Rs. 5,000/- under Sections 307/34 IPC and in default of fine to undergo further rigorous imprisonment for six months. The accused were further convicted to undergo 3 years rigorous imprisonment and fine of Rs. 1000/-, in default, further R.I. for one month under Section 452 IPC directing to run both the sentences concurrently. Reference under Section 30 of the Assam Frontier (Administration of Justice) Regulation, 1945, having been made by the learned Deputy Commissioner, Papum Pare District, Yupia for confirmation of the conviction and sentence imposed upon the accused persons, this reference has been registered. 2. On the basis of an FIR lodged with the Officer-in-Charge Itanagar Police Station by Swami Apramayananda, Monk of R.K. Mission Hospital, Ganga, Itanagar dated 2.8.99 alleging that on that day about 1945 hrs, two local boys came in the house of Dr. K. Zaman, ENT Specialist, R.K. Mission Hospital, Ganga and severely assaulted him by inflicting sharp cut injuries on his both hands and fled away from the spot under the cover of darkness. On receipt of the FIR, police registered a Case being Itanagar Police Station Case No. 94/99 under Sections 452/326/307/ 34 IPC. The Investigating Officer conducted the necessary investigation and during the course of investigation, statement of witnesses were recorded, materials were seized and after closure of the investigation, having found a prima facie case against the accused persons, submitted the charge sheet against them vide charge sheet No. 112 of 1999 before the Judicial Magistrate, First Class. The learned Judicial Magistrate, on the basis of materials produced by the I.O. having found the case to be a sessions triable one, committed to the Court of the learned Deputy Commissioner for trial vide order dated 29.3.2000. The learned Deputy Commissioner-cum-Ex. Officio Sessions Judge framed charges jointly against the accused persons under Sections 452/326/307/34IPC. That apart, the accused Bamang Sangkio was charged under Section 109 IPC. The charges having been explained to all the accused persons, they denied the same and claimed to be tried. 3. The learned Deputy Commissioner-cum-Ex. Officio Sessions Judge framed charges jointly against the accused persons under Sections 452/326/307/34IPC. That apart, the accused Bamang Sangkio was charged under Section 109 IPC. The charges having been explained to all the accused persons, they denied the same and claimed to be tried. 3. During the course of trial, the prosecution examined as many as 8 (eight) witnesses including the I.O. At the closure of the prosecution witnesses, the accused were examined under Section 313Code of Criminal Procedure putting the circumstances that appeared against them during the course of trial to which they denied. However, the accused did not produce any defence witness on their behalf. 4. After closure of the case, arguments were heard and vide judgment and order dated 18.2.2003, the accused were convicted and sentenced as aforesaid. This learned Deputy Commissioner, however, acquired the accused Bamang Sangkio as the charges against him were not proved. 5. Convicting the accused persons in the manner aforesaid, the learned Deputy Commissioner-cum-ex. Officio Sessions Judge made the present reference under Section 30of the Assam Frontier (Administration of Justice) Regulation, 1945 to the High Court. On receipt of the said reference, this Court appointed Mr. K. Ete, learned Amicus Curiae to defend the accused persons, they not having engaged any counsel in defence. 6. We have heard Mr. N. Lowang, learned Public Prosecutor, Arunachal Pradesh and Mr. K. Ete, learned Amicus Curiae. 7. Mr. N. Lowang, learned Public Prosecutor, in support of the conviction and sentence imposed upon the accused, led us to the evidence of prosecution witnesses and other materials on record and submits that in the instant case, the prosecution having been able to prove the case alleged against the accused persons beyond reasonable doubt, the conviction and sentence imposed upon the accused persons are just, proper and adequate and it requires no interference and is liable to the confirmed. 8. Mr. K. Ete, learned Amicus Curiae, on the other hand, submits, per contra, that the prosecution failed to prove the case against the accused beyond all reasonable doubt and the statements of prosecution witnesses are contradictory in nature and one of the accused namely. Bamang Sangkio having been acquitted on the same set of evidence, the learned Deputy Commissioner committed a grave error of law in convicting the other accused persons on the basis of such evidence. Bamang Sangkio having been acquitted on the same set of evidence, the learned Deputy Commissioner committed a grave error of law in convicting the other accused persons on the basis of such evidence. Submitting in the aforesaid manner the learned Amicus Curiae contends that the conviction of the accused persons in the instant case cannot be supported by any principle of law. 9. We have considered the rival submissions made by the respective learned Counsels. In order to find out whether the accused persons have been convicted rightly and as to whether the prosecution has been able to prove the fact beyond reasonable doubt, in the manner they alleged, let us discuss the statement of prosecution witnesses recorded in the case. 10. PW 10, Shri Biri Kame, deposed before the Court inter alia that he knew the victim, Dr. Zaman who was working in R.K. Mission Hospital since 1990 and on 2.8.99 he was told that somebody attacked Dr. Zaman at his residence. He does not know who attacked Dr. Zaman and how many people attacked him. This witness was declared hostile and accordingly, he was allowed to be crossed examined by prosecution. He denied that and on 2.8.99 at 1900 hrs he went to the R.K. Mission Hospital to see his relative. The suggestion that he saw that the accused persons attacked Dr. Zaman was denied. During cross-examination, this witness reiterated that he does not know who attacked Dr. Zaman. 11. PW 3 is Dr. Sekhar Das, who deposed inter alia that on 2.9.99 around 7.55 in the evening, the wife of Dr. Zaman came rushing and screaming that Dr. Zaman has been cut and thumped on his door and he saw that Dr. Zaman was carried by two persons and he did not see the accused at that time. He stated that Dr. Saxena and some persons from nearby canteen were carrying Dr. Zaman towards hospital. This witness was not cross-examined by the defence. He also saw blood in the body of Dr. Zaman and after few minutes his wife handed over him a piece of finger having thumb and index finger and thereafter he came back to his house and changed his dress and went to hospital and taking the separated portion of the hand in a tray. 12. PW 4, Dr. R.K. Saxena, who deposed inter alia that he was staying in the R.K. Mission Colony. 12. PW 4, Dr. R.K. Saxena, who deposed inter alia that he was staying in the R.K. Mission Colony. The incident took place in between 7.30 to 8.00 in the evening. He stated that when he was riding the scooter in front of the house of Dr. Zaman, he saw that his wife Dr. Koom Koom was running out from her house and crying some words, then he stopped his scooter and went inside the house of Dr. Zaman and saw Dr. Zaman bleeding and he was keeping both his hand crossed and closed to his chest. He helped to take him to emergency ward of the hospital. The defence did not cross-examine this witness. 13. P.W. 6, Dr. Koom Koom Bora, is wife of the victim, Dr. Zaman. In chief she deposed inter alia that she stayed in the same quarter in the R.K. Mission complex, apart from her husband, two daughters and a maidservant also lived with them. The incident took place on 2.8.99 after 7.30 P.M. Many people came to the house on the day of incident some body rang their doorbell and their maidservant opened the door. On being informed by maid servant that somebody has come to meet her husband, her husband came out to meet him and within 2/3 minutes she heard the commotion in the outside room and her husband came inside and she saw bleeding and also saw one part of the hand was missing and his body was drenched in blood. She went outside for help and she went to the house of Dr. Sekhar and after informing him she came back to her house and saw a piece of hand lying on the floor and she gave it to Dr. Sekhar. She further stated that Dr. Zaman and herself were treating one Tamshi Mabo, a patient, hard of hearing, three days before the incident. Tamchi Mabo along with a boy asked for false prescription slips. After checking from the Hospital, it was found that all the medicines have been supplied from the Hospital and accordingly the false prescription slips were refused. The patient had come 2/3 times along with his attendant and every time a different attendant used to come along with the patient. She does not know Bamang Sangkio. This witness was declared hostile and allowed to be cross-examined by the defence. The patient had come 2/3 times along with his attendant and every time a different attendant used to come along with the patient. She does not know Bamang Sangkio. This witness was declared hostile and allowed to be cross-examined by the defence. On being questioned by the prosecution she denied to have given any statement before the police that Bamang Sangkio approached her husband several times for preparing false bill of Rs. 3000/- nor she stated before the police that her husband had declined to prepare such bills and Bamang Sangkio threatened of grievous consequences. During cross-examination by defence, this witness stated that her husband and herself shared the same room for examining patients. 14. PW 7, Shri Tamchi Mebo-during his deposition in Chief this witness stated inter alia that he had treatment of his ears in R.K. Mission Hospital and he went to the Hospital along with Shri Bamang Sangkio. He further stated that he gave about Rs. 3800/- to Shri Bamang Sanio for treatment. He remained in the hospital for about 10/12 days. At the time of discharging him from the hospital, doctor told him to take treatment outside the hospital. For taking medicines, he asked money from Shri Bamang Sangkio but he refused to give by saying that the money has been spent in the Hospital for treatment. Then, he asked for receipt of the medicines purchased from Shri Bamang Sangkio to which he told him that the receipt have been looked inside. On further asking he informed him that receipt have been washed away while washing the clothes. Then, he contacted the doctor to ask whether money has been spent for treatment and the doctor informed him that no money has been spent for treatment and Bamang Sangkio is telling him lie and he was asked to get return the money, as the treatment was free of cost. This witness does not know Tame Hasi but he knows Tai Takang and Bamang Sangkio when he was admitted in the Hospital and both of them come together to visit him. 15. During cross-examination, this witness stated inter alia that Bamang Sangkio is his uncle. He further stated that he has not seen Bamang Sangkio, Tame Hasi and Tai Takang in the house of Dr. Zaman or hospital chamber nor he heard that Bamang Sangkio or Tai Takang discussing about killing or assault Dr. Zaman. 15. During cross-examination, this witness stated inter alia that Bamang Sangkio is his uncle. He further stated that he has not seen Bamang Sangkio, Tame Hasi and Tai Takang in the house of Dr. Zaman or hospital chamber nor he heard that Bamang Sangkio or Tai Takang discussing about killing or assault Dr. Zaman. He also did not ask anybody to kill or assault Dr. Zaman. Bamang Sangkio has returned him Rs. 3000/-. 16. PW 8 is Dr. K. Zaman, the victim. This witness during his deposition in chief stated inter alia that he was serving in the R. K. Mission Hospital since 1981 as ENT Specialist and his residential quarter is situated in the hospital campus. The incident took place on 2.8.99 at around 7.30 P.M. At the time on hearing the ringing of calling bell in his quarter, his maidservant opened the door and then he went out and saw one person sitting in the front room. The sitting person has been identified in the court to be Tai Takang (Accused No. 2). On being asked, the said person told him that along with him another person has also come and he was also called upon. As soon as the witness set down, the other person came inside and he attacked him with sharp weapon (Dao Type). It was aimed at his head and as a result of assault his hands were cut and started bleeding. He attacked 4/5 times. The person attacked him has been identified in the court as Tame Hasi (Accused No. 1). His further stated that his thumb, index and middle finger of right hand were separated whereas on the left hand, he had the injuries on his palm, deep cut in the assault. He was inflicted injury on his head also and had he not stopped the attack over his head by the hands, the blow would have hit his head. He further stated that there was an intention to kill him. After attacking him, both the accused persons fled away. Thereafter, his family members and Dr. Saxena came and took him to Hospital and next morning he was shifted to Nursing Home at Dibrugarh for treatment and thereafter, he was again shifted to Chenni where he was in the nursing home for about two months for treatment. After attacking him, both the accused persons fled away. Thereafter, his family members and Dr. Saxena came and took him to Hospital and next morning he was shifted to Nursing Home at Dibrugarh for treatment and thereafter, he was again shifted to Chenni where he was in the nursing home for about two months for treatment. He further stated that the person who first came to his room, identified as Tai Takang, accompanied with one of his patient Tamchi Mebo, who was treated for some ear problems. The said person Tai Takang had accompanied the patient 2-3 times, atleast once to the clinic and once to his residence. He had asked for prescription slips, and then he (PW 8) informed him that in the absence of cash memos he couldn't give prescription slips and on such refusal, they might have arrayed. This witness stated that he does not know about Bamang Sangkio. This witness was cross-exanubed by the defence and during cross-examination, he stated that the police came 2-3 times to him and asked him about some points relating to the case. He denied the suggestion that some one came and knocked the door and on the day of incident, what coloured clothes the assailant were wearing was also not remembered by him. 17. PW 9 is Dr. Sibasis Nath, who deposed inter alia that on 2.8.99 about 7.50 P.M. he gave treatment to Dr. Zaman as he was assaulted portion of his right hand was detached. There were multiple defensive cut on his left palm there was a cut injury on the head also. Dr. Zaman was brought by Dr. Saxena and Dr. Sekhar Das and many other people. Dr. Zaman was operated by him and it took about 5 hours, the patient profusely bleeding from wounds both upper limbs and scalp. He had also injuries on right upper limb in the nature of oblique sharp cut from between the base of ring finger and mid finger up to the lower end of redius completely dismembering mid, finger, index thumb and there was separate cut between right index and mid finger, left hand, multiple (4) lacerated injury on the palmar aspect of left hand with fracture of second and third meta carpal bone. Multiple tendon injuries, scalp-6 inch long sharp bone deep cut over the left side of head with active bleeding were also there. Multiple tendon injuries, scalp-6 inch long sharp bone deep cut over the left side of head with active bleeding were also there. Nature of injury sharp insized grievous and such type of injuries can be caused by the dao. After treatment, this witness also prepared the injury report, Ext. 1 and Ext. 1(A) is his signature. He proved Ext. 2, the discharge certificate of the patient Shri Tamchi Mebo and Ext. 3 is the medical prescription issued by Dr. Zaman. During the cross-examination this witness stated that on 2.8.99 at about 7.45 P.M. when he was called for duty over phone, he did not remember the person who has called. He further stated that he was not present at the place of occurrence and he does not know who has assaulted Dr. Zaman. 18. PW 11, who is I.O., Shri Tabi Bage, during examination, this witness in chief has stated inter alia that the complaint of the case was lodged by Swami Apramayananda one monk from R.K. Mission and on that day he was posted in the Itanagar Police Station. He proved the FIR as Exhibit 2. On being endorsed the Case by Officer-in-Charge to him, he started investigation and after completing the investigation, he submitted the charge sheet vide exhibit 3 and Ext. 3A is his signature. Altogether 10 witnesses were examined by him including one Biri Kame who identified the sleepers of one of the accused. He took photographs and prepared the seizure list, which is Exhibit 4 and Ext. 4(A) is his signature. He also examined independent witnesses Dr. Saxena, Dr. Shekar Das. No weapon was recovered and he also drew the sketch map of the place of occurrence. The charge sheet was submitted under Sections 452/326/307/ 34. He arrested the 4 accused persons and out of them three were charge sheeted after the investigation. Ext. 5 is the rough sketch map of the site. This witness was not cross-examined by the defence. To the question put by the court, the I.O. Stated that he identified and got through the accused and after the investigation of the victim Dr. Zaman, Tamchi Mebo and other witnesses and going through the records pertaining to this case, submitted charge sheet. 19. This witness was not cross-examined by the defence. To the question put by the court, the I.O. Stated that he identified and got through the accused and after the investigation of the victim Dr. Zaman, Tamchi Mebo and other witnesses and going through the records pertaining to this case, submitted charge sheet. 19. During their examination under Section 313 Code of Criminal Procedure, the accused persons denied the circumstances that were put to them which revealed from the statements of the prosecution witnesses. In the instant case, from the narration of the prosecution facts, it is established that the victim Dr. Zaman was serving as ENT Specialist in the R.K. Mission Hospital, Ganga, Itanagar since 1981. He was inflicted with severe injuries as described by Dr. Sibasis Nath who treated the victim. Interestingly, the PW 10 and PW 6 (wife of the victim) were declared hostile by prosecution, as according to the prosecution, these two witnesses suppressed material facts, which they stated before the I.O. 20. Although, these witnesses were declared hostile their evidence cannot be discarded in toto. Material facts, proved by the victim, PW 8 are corroborated by these two and other PWs and they safely be accepted. PW 6, the wife of the victim has given a vivid description regarding the incident, which is prior to the giving of the blow as well as relating to taking the victim to the hospital for treatment by calling other people of the hospital complex. Although, she has not seen with the attack by the accused upon her husband (PW 8) but coming back after informing Dr. Sekhar, she saw piece of hand lying on the floor which was picked up by her and gave it to Dr. Sekhar, PW 3. The circumstance that is exposed from her evidence is clear circumstances against the accused persons. 21. In the instant case the whole prosecution case factually based on the clear cogent and natural statement of Dr. K. Zaman, PW 8, the Victim. Sekhar, PW 3. The circumstance that is exposed from her evidence is clear circumstances against the accused persons. 21. In the instant case the whole prosecution case factually based on the clear cogent and natural statement of Dr. K. Zaman, PW 8, the Victim. On scrutiny of his evidence, we find that he has given a clear and vivid picture as to how the accused came to his house and how they entered into the house by ranging the calling bell and how the fatal injuries were inflicted upon him as a result of which, the thumb index and middle finger on the right hand were separated whereas of the left hand he had injuries on his palm and deep cut injuries on his head also. He also identified both the accused in the court. The victim has also given a vivid description of his treatment at different places of India and such treatment is still continuing. On cross-examination, in fact, no material question affecting his veracity in chief was asked by the defence. As a result, the statement made by this witness in chief remains unchanged. Dr. Sibasis Nath, PW 9 has also given a detailed description of the treatment given of the victim, Dr. Zaman and the various injuries sustained by him. This witness also prepared the injury report, which was exhibit as Ext. 1. This witness described the injuries and proved that the victim had profusely bleeding wounds both upper limbs and scalp and had injuries on right upper limb in the nature of oblique sharp cut from between the base of ring finger and mid finger up to the lower end of radium completely dismembering mid, finger, index thumb and that there was separate cut between right index and mid finger, left hand multiple four lacerated injuries on the palmer aspect of left hand with fracture of second and third meta carpal bone, multiple tendon injuries, scalp 6-inch long sharp bone deep cut over the left side of the head. On scrutiny of the statement of this witness, we find the intensity of the blow and the nature of injuries inflicted upon the victim. This witness was not at all cross-examined by the defence with the reference to the injuries sustained by the victim. On scrutiny of the statement of this witness, we find the intensity of the blow and the nature of injuries inflicted upon the victim. This witness was not at all cross-examined by the defence with the reference to the injuries sustained by the victim. Consequently, the description of injuries inflicted upon the victim, PW 8 and the nature of injuries and the treatment given to the victim has been fully corroborated by the statement of PW 9 and Ext. 1. In fact, there is no dispute raised by the defence. 22. From the evidence of prosecution witnesses, it is well established that the victim, P.W. 8 was attacked by the accused persons beyond reasonable doubt and was aimed at his head and when it was resisted by his hands, his thumb index and middle finger of right hand were cut and separated and the left hand injuries on his palm deep cut sustaining head injuries also. The nature of the injuries and the selection of the accused on the vital part of the body i.e. head for giving the blow is sufficient indication of the facts that accused had the intention to kill the victim, Dr. Zaman. 23. The learned Deputy Commissioner-cum-ex. Officio Sessions Judge has acquitted the other accused, Bamang Sangkio, as there is not iota of evidence against him and none of the prosecution witnesses attributed any activities upon him. The contention of the learned Amicus Curiae that the learned trial Court having acquitted the other accused on the same set of evidence, the conviction is not sustainable against the other two accused persons on the same set of evidence is not acceptable inasmuch as there is no evidence at all against the other accused person, on the other hand, there are ample evidence relating to the part of the accused persons in causing fatal injuries upon the victim. 24. The learned Deputy Commissioner-cum-ex. Officio Sessions Judge meticulously considered the evidence on prosecution witnesses and upon proper marshalling thereof has rightly convicted the accused persons under the aforesaid Sections of law. We do not find any reason to alter or modify or came to a different finding other than what have been concluded by the learned trial court. 25. For the foregoing reasons, we hold that the prosecution has been able to prove the case against the accused persons beyond all reasonable doubt. We do not find any reason to alter or modify or came to a different finding other than what have been concluded by the learned trial court. 25. For the foregoing reasons, we hold that the prosecution has been able to prove the case against the accused persons beyond all reasonable doubt. Accordingly, the impugned conviction and sentence imposed upon the accused persons by the learned District and Sessions Judge is hereby affirmed. The reference is accepted and is answered accordingly in favour of the prosecution.