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2007 DIGILAW 351 (GAU)

Jugia Orang v. State of Assam

2007-05-15

AFTAB H.SAIKIA, AMITAVA ROY

body2007
JUDGMENT Amitava Roy, J. 1. Being aggrieved by the judgment and order dated 27-1-2001 passed by the Additional Sessions Judge-1, Tinsukia in Sessions Case No. 18(T)/2001 convicting him under Section 302 of the Indian Penal Code and sentencing him to rigorous imprisonment for life and fine of Rs. 1000/- in default, to suffer rigorous imprisonment for another six months, the appellant from jail has preferred this appeal. 2. We have heard Mr. R.P. Sarmah, learned Amicus Curiae for the appellant and Mr. K.C. Mahanta, learned Public Prosecutor, Assam for the State of Assam. 3. The prosecution case centers around the homicidal death of Sutu Orang, resident of Ara Gaon, husband of the informant Maloti Orang. On 23-7-2000 she lodged a complaint with the Officer-in-charge, Talap Out-Post stating that at about 7.30 P.M. on the previous day i.e. 22-7-2000 her husband who had gone out of the house did not return and on the next day i.e. 23-7-2000 at about 5 A.M. she detected his dead body lying by the side of the PWD road in front of their house with cut injuries on his head, hand and neck etc. caused by sharp weapon. She mentioned about a quarrel between her deceased husband and his nephew Jugia Orang son of late Chokora Orang over a land dispute and that the latter (Jugia Orang had been trying to kill her husband with a dao. She therefore asserted that Jugia Orang had killed her husband. 4. On receipt of the FIR, Talap Police out post made a GD Entry and forwarded the case to the Officer-in-charge, Doom Dooma police station and thereafter Doom Dooma PS case No. 199/2000 under Section 302, IPC was registered. On completion of the investigation, the police submitted the charge-sheet against the accused appellant under Section 302, IPC. The case being one triable exclusively by the Court of Sessions, it was committed thereto and the learned Additional Sessions Judge, Tinsukia on 21 -5-2001 framed charge against him under the aforementioned provision of law. The charge having been explained to the accused appellant, he pleaded 'not guilty' and claimed to be tried. 5. The prosecution examined 10 witnesses including the doctor who had performed the postmortem examination over the dead body and the Investigating Officer of the case. The statement of the accused appellant under Section 313, Cr.P.C. was recorded. He, however, declined to adduce any evidence. 5. The prosecution examined 10 witnesses including the doctor who had performed the postmortem examination over the dead body and the Investigating Officer of the case. The statement of the accused appellant under Section 313, Cr.P.C. was recorded. He, however, declined to adduce any evidence. His plea was one of total denial. The learned trial Court upon hearing the learned Counsel for the parties and on a consideration of the materials on record held the accused appellant to be guilty of murder under Section 302, IPC and sentenced him as above. 6. The learned Amicus Curiae has argued that the prosecution case being inherently improbable ought to have been discarded out right by the learned Court below. According to him, the evidence on record did not establish the culpability of the accused appellant beyond reasonable doubt. He contended that having regard to the number of injuries sustained by the deceased, it is inconceivable that the incident could have gone unnoticed there being houses close to the place of occurrence. The deceased an able bodied man on being assaulted should have resisted and raised hue and cry. There being no evidence to the said effect, though the dead body was found near the residence, the learned Court below ought to have been rejected the prosecution case as unworthy of any credence. Mr. Sarmah was critical about the reliance placed by the learned trial Court on the so called extra judicial confession made by the accused appellant contending that the same was neither truth-worthy nor admissible in law. He further pleaded that the evidence regarding the recovery of dao as the weapon of assault from the house of the accused appellant ought not have been taken note of in view of material discrepancies in the testimony of the witnesses to the said effect. Moreover, the dao claimed to have been seized not having been either produced or identified in Court during the trial, the seizure thereof was of no significance. The learned Amicus Curiae without prejudice to the above has argued that the sentence awarded is unjustifiably severe and merits interference of this Court. 7. The learned Public Prosecutor in reply has argued that the offence of which the accused appellant had been charged having been proved to the hilt, the conviction and sentence do not warrant any interference. He asserted that the prosecution witnesses more particularly, PWs. 7. The learned Public Prosecutor in reply has argued that the offence of which the accused appellant had been charged having been proved to the hilt, the conviction and sentence do not warrant any interference. He asserted that the prosecution witnesses more particularly, PWs. 1, 3, 7 and 8 having consistently and unambiguously testified about the admission of the accused appellant before them to, have assaulted and murdered the deceased, the Court below rightly acted upon their evidence to return the finding of guilt against him (accused appellant). The seizure of dao having been effected on the basis of the disclosure made by the accused appellant, in presence of witnesses, non production of the weapon in Court was inconsequential. While contending that the nature of the injuries and the number thereof available on 'the dead body proclaims the brutality of the assailant, the learned Public Prosecutor asserted that the evidence as a whole unerringly pointed to the guilt of the accused appellant and therefore the impugned judgment and order ought to be upheld in the interest of justice. The accused appellant having been found guilty of committing the offence of murder, no reduction in the sentence is also called for, he urged. 8. The rival submissions have been duly noted. To appropriately evaluate the same, it would be essential to analyze the evidence on record. 9. PW 1, Smt. Maloti Orang, wife of the deceased stated in course of the trial that on the date of the occurrence her husband after returning from the work at 6 P.M. had meal along with her and thereafter went out of the house, but did not return during the night. On the following morning, she found her husband lying dead on the road at a distance of 28 yards from their house. She testified that she saw one cut injury on the neck of her husband. She stated that the accused was her husband's nephew and that he (accused) had confessed before her that he killed her husband by inflicting dao blow on his neck in presence of Gaonburah of the village. Sheiurther stated that she informed the police in writing and that the dao used to kill her husband had been produced by the accused appellant before the police. Sheiurther stated that she informed the police in writing and that the dao used to kill her husband had been produced by the accused appellant before the police. In cross examination, she disclosed that one Ram Das was her next door neighbour and that the house of the accused appellant was on the other side of the road. She further deposed that the accused appellant had been allowed to reside on a portion of the land given by her husband. She stated that she had three children. She denied the suggestion that the accused appellant had been falsely implicated and that on the date of the incident she along with her husband had taken liquor for which they were intoxicated. 10. PW 2, Ram Das stated that PW 1 had reported to him that her husband had been found lying on the road being injured. On coming to learn thereof he came to the road and found him dead. He expressed ignorance about the assailant. He further stated that he did not inquire of the PW 1 about the occurrence. 11. PW 3, Mrs. Suchila Orang is the sister-in-law of the accused appellant. She deposed that on the day following the night of the incident, she came out of her house at about 8 A.M. on hearing noise and heard the accused appellant saying that he had killed the deceased. The witness stated that the deceased and the accused appellant had a quarrel about seven days back. In cross examination, she stated that she along with her husband, in-laws and children used to reside in the room wherefrom the dao was recovered concealed under their bed and was seized by the police. 12. PW 5, Palash Ranjan Gharphelia was at the relevant time Circle Officer and Executive Magistrate at Doom Dooma circle. He performed the inquest on the dead body on 23-7-2000 and prepared a report on the basis thereof. He stated that the deceased was identified by one Malati Orang. He proved the inquest report as Ext. 1. 13. Sri Maina Sarma (PW 6) stated that 4he occurrence had taken place during the night and on the following day in the morning while he came out of his house, he saw a dead body lying by the side of the National Highway in front of his house. He proved the inquest report as Ext. 1. 13. Sri Maina Sarma (PW 6) stated that 4he occurrence had taken place during the night and on the following day in the morning while he came out of his house, he saw a dead body lying by the side of the National Highway in front of his house. The witness stated that he recognized the dead body to be of Sutu Orang and that he had seen cut injuries on the neck and on the head of the deceased. The witness stated that he was present when the police visited the spot for investigation and had seen the police recovering one dao from the nearby house of the deceased. He proved the seizure list Ext. 3 and his signature Ext. 3 (1). In cross examination, he admitted that the seized dao was not available in Court. 14. PW 7, Sri Lohit Bora stated that the accused had confessed before him that he had killed Sutu Orang. He testified that he was present when the inquest was performed on the dead body. He proved his signature, Ext. 1(2) on the report. He also stated that the police had seized one dao from the house of the accused in his presence. He also proved his signature Ext. 3(2) in the seizure list. In cross examination, he confirmed of having stated before the Investigating Officer that the accused appellant had confessed before him that, he (accused) had killed Sutu Orang. 15. PW 8, Subhok Das at the relevant time was the Gaonbura of the village. He deposed that one Ramdas Karmakar having reported to him that Sutu Orang had been killed, he came to the spot where the dead body was lying. The witness deposed to have seen two cut injuries one over the neck and the other on the left arm. According to him, he was present when the police came and prepared the inquest over the dead body. He also claimed to be present when the police recovered the dao as shown by the wife of the accused. The witness stated that the accused appellant was also present inside the house then and that the dao was taken out from under the bed. The witness testified that he heard the accused confessing before the police that he had killed the deceased with the said dao. He proved his signature Ext. The witness stated that the accused appellant was also present inside the house then and that the dao was taken out from under the bed. The witness testified that he heard the accused confessing before the police that he had killed the deceased with the said dao. He proved his signature Ext. 1(3) and Ex. 3(3) on the inquest report and the seizure list respectively. In cross examination, while admitting that the seized dao was not in Court, the witness further conceded that he had not stated before the Investigating Officer of having heard the accused appellant confessing before the police that he had killed Sutu Orang by a dao. 16. PW 4, Dr. Upendra Nath Bora who performed the postmortem on the dead body, in his evidence disclosed that the following injuries were found on the dead body: 1. Incised wound over left forearm measuring 6 x 3 cm, situated 5 cm above wrist joint. 2. Incised wound on left forearm situated 6 cm above left wrist joint cutting radius and ulna bones. 3. Incised wound in left forearm of 6 x 6 cm situated 8 cm below left elbow. 4. Incised wound over left arm 23 x 6 cm, muscle deep extending from left shoulder to left elbow joint. 5. Incised wound 3x1 cm situated below left axilla. 6. Incised wound 4x2 cm over left side or chest near left axilla. 7. Incised wound 7 x 5 cm over left shoulder joint. 8. Incised wound over right side of face measuring 14 x 3 cm cutting frontal and nosal bone. 9. Incised wound over upper part of neck measuring 21 x 3 cm cutting trachea and muscles. 10. Incised would over middle of neck cutting trachea oncophage and 3rd cervical vertebrae and spinal cord completely. Head is attached to the rest of body only by skin and muscles. 11. Incised wound over right shoulder measuring 9 x 5 cm cutting head of right humorous bone. He opined that the death was instantaneous as a result of the above injuries which were of ante mortem and caused by sharp cutting weapon and homicidal in nature. In cross examination, the medical witness inter alia clarified that he did not detect any smell of alcohol in the dead body while conducting the postmortem examination. 17. He opined that the death was instantaneous as a result of the above injuries which were of ante mortem and caused by sharp cutting weapon and homicidal in nature. In cross examination, the medical witness inter alia clarified that he did not detect any smell of alcohol in the dead body while conducting the postmortem examination. 17. The Investigating Officer, Sri Khiresh 1 Deori (PW 9) stated that on 23-7-2000, the Incharge, Talap out post having received a FIR from one Malati Orang made GD entry and endorsed the case to him for preliminary investigation. He proceeded to the place of occurrence at 9 A.M. on 23-7-2000 and found the dead body lying on the road covered by a cloth. He prepared the sketch map of the place of occurrence, Ext.4 and requisitioned the services of one Executive Magistrate to conduct the inquest on the dead body. After the said examination and preparation of the inquest report the dead body was sent for postmortem examination to the Assam Medical College, Dibrugarh on the following day. The Investigating Officer stated that thereafter he examined the witnesses and recorded their statements at the place of occurrence. He arrested the accused appellant from his house and brought him to the police station. According to the witness, the accused appellant confessed before him that the dao by which he had committed the offence had been kept concealed by him. The witness stated that thereafter he brought the accused appellant to his residence and recovered the dao therefrom as shown by him. The witness seized the dao in presence of the witnesses vide Ext. 3. On the completion of the preliminary investigation and after receipt of the postmortem report, he submitted the case diary to the Incharge, Tatap out post. He proved the FIR Ext. 5. 18. PW 10, Sri Debajit Mahanta who at the relevant time was the Incharge of Talap out post stated that on receipt of the FIR from one Malati Orang on 23-7-2000 he made a GD Entry and forwarded the FIR (Ext.5) to the Officer incharge, Doom Dooma Police station for registering a case. He stated that he endorsed the investigation to ASI, Khiresh Deori (PW 9) to conduct the preliminary investigation. He stated that he endorsed the investigation to ASI, Khiresh Deori (PW 9) to conduct the preliminary investigation. After completion thereof and on scrutiny of the case diary, he being satisfied that further investigation was not required, submitted the charge sheet against the accused appellant under Section 302, IPC. 19. The accused appellant in his statement under Section 313, Cr.P.C. while claiming to be innocent reiterating that he had been implicated in a false case, totally denied to had either disclosed to the Investigating Officer about any place where the dao as alleged was hidden or of having led the police thereto. He denied that the police had recovered any dao as shown by him and that it had been seized by police in presence of the witnesses. 20. The evidence on record demonstrates absence of any eye witness of the incident. That the deceased had succumbed to the injuries sustained by him as revealed in the, postmortem report however, is not in dispute. The postmortem report as well as the evidence of the doctor reveal a shocking and ruthless act of violence with a deadly sharp cutting weapon to eliminate the victim leaving no chance of survival. The dead body bore 11 incised wounds of different sizes spread all over including the head and neck. Such was the brutal act of the assailant that the head, as the injury No. 1 discloses remained attached to the rest of the body only by skin and muscle. The death occurred instantaneously as a result of such ante mortem injuries. That the injuries had been I caused by sharp cutting weapon and was homicidal in nature as certified by the medical witness. The FIR containing the information, first in point of time and lodged by wife of the deceased divulged a strained relationship between Sutu Orang and the accused appellant over a land dispute and the attempts by latter to kill the informant's husband by dao. That there was a quarrel between the two was recalled by PW 3 in her evidence. PW 1, PW 3, PW 7 and PW 8 have consistently testified about the confession by the accused appellant before them of having killed the deceased by assaulting him with a dao. That there was a quarrel between the two was recalled by PW 3 in her evidence. PW 1, PW 3, PW 7 and PW 8 have consistently testified about the confession by the accused appellant before them of having killed the deceased by assaulting him with a dao. Though PW 8 in cross examination resiled from the said statement which therefore cannot be taken note of, in absence of any evidence of hostility between the accused appellant and PW 3 and PW 7 in particular, rendering them untrustworthy, we do jiot fully persuaded to dismiss their evidence in this, regard. Considering the consistency and the coherence of their statements bearing on the confession of the accused appellant, we are satisfied that their evidence to the said effect is untainted and true. 21. The Apex Court in the State of Karnataka, Appellant v. M.N. Ram Das, respondent [2002] SUPP 2 SCR 112 while dilating on the evidentiary value of an extrajudicial confession made an exhaustive survey of its rendering on the topic to hold that extrajudicial confession, if true and voluntary, could be relied upon by the Court to convict the accused for the commission of the crime alleged. It ruled that despite the inherent weakness of extra judicial confession as an item of evidence, it cannot ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it was made in the circumstances which tend to support the statement. It held that corroboration of such evidence is required only by way of abundant caution and if the Court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then conviction can be founded on such evidence alone. However, before relying on the alleged confession, the Court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise or any extraneous consideration. 22. Having regard to the testimony of the aforementioned witnesses and the defence plea in the case, we are of the considered opinion that the extrajudicial confession of the accused appellant before them, is reliable and can be safely acted upon. 23. PW 1, PW 3, PW 6, PW 7 and PW 8 are witnesses of the seizure of the dao. Having regard to the testimony of the aforementioned witnesses and the defence plea in the case, we are of the considered opinion that the extrajudicial confession of the accused appellant before them, is reliable and can be safely acted upon. 23. PW 1, PW 3, PW 6, PW 7 and PW 8 are witnesses of the seizure of the dao. Though there are some inconsistencies with regard to the place from which the weapon was recovered and/or produced those per se are not destructive of the factum of the recovery thereof from a place known to the accused appellant. This assumes significance in view of the testimony of the Investigating Officer, PW 9 according to whom the accused appellant had confessed before him that the dao by which the offence had been committed had been kept concealed by him and that the same was recovered from his (accused) house on being led and shown by him (accused). 24. The Apex Court in Sanjay Alias Kaka, appellant v. State (NCT of Delhi), respondent 2001 CriLJ 1231, while elaborating on the true purport of Section 27 of the Evidence Act, 1872, held that the same was an exception to the mandate of Section 25 that any confession made to a police officer could not be proved as against a person accused of an offence. It held that under Section 27 of the Evidence Act, when any fact is deposed to as discovered in consequence of information received from a person accused to any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. It ruled that the above provision was founded on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence. 25. Relying on the decision of the Privy Council in Pulukuri Kottaya and Ors. v. Emperor AIR 1947 PC 67 : 1947 CriLJ 533 It held that the "fact discovered" appearing in Section 27 signifies the place from where the object is produced and the knowledge of the accused as to this and that the information given must relate distinctly to this fact. v. Emperor AIR 1947 PC 67 : 1947 CriLJ 533 It held that the "fact discovered" appearing in Section 27 signifies the place from where the object is produced and the knowledge of the accused as to this and that the information given must relate distinctly to this fact. The evidence of the Investigating Officer with regard to the information rendered by the accused appellant to him about his (accused) knowledge of the place where-from the dao had been recovered is therefore admissible in law. This testimony of the Investigating Officer proved the knowledge of the accused appellant of the place from where the dao was retrieved. The evidence of the other prosecution witnesses as above read with that of the Investigating Officer on this facet of the prosecution case in our view lend support to the version of recovery of weapon of assault from a place where it had been concealed by the accused appellant. The fact that the recovery was immediately after the occurrence also bolsters the prosecution case. The denial of the accused appellant of his role of leading the police to the discovery of the dao or seizure1 thereof is unconvincing in face of the overwhelming materials to the contrary. 26. We have closely scrutinized the reasonings of the learned trial Court in support of its conclusions and are in complete agreement therewith. We are, therefore of the unhesitant opinion that the accused appellant was rightly held to be guilty of the offence of murder of Sutu Orang. The learned trial Court while deciding on the sentence had duly considered the pleadings put forward by the accused appellant. Having regard to the offence committed and the manner of perpetration thereof, we do not feel that any Interference on this count as well is warranted. The appeal being without any merit fails and is dismissed. 27. We hereby place on record our appreciation for the assistance rendered by the learned Amicus Curiae and order that his professional fee as admissible in law be disbursed at the earliest.