Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 423 (GAU)

Suben Maradi v. State of Assam

2008-06-11

AFTAB H.SAIKIA, P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. This appeal is directed against the judgment and order dated 10.6.2003 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 11/2001 convicting the accused-appellants under Section 302/201, IPC and sentencing them to undergo rigorous imprisonment for life with a fine of Rs.1,000/- each, in default to undergo R.I. for another one month. 2. The prosecution case arose out of an FIR lodged by Amulya Deka, PW 5 on 30.7.1997 with reference to GD. entry No. 659 dated 29.7.1997 alleging that after due enquiry, he came to know that in the month of March, on certain Monday, by night, the appellants alongwith other accused persons killed one Rajen Baraik arid burried his dead body within the house compound of accused Chandro Pator. During investigation, the accused persons unearthed the dead body in presence of police and some local people. One Raju Baraik, the elder brother of the deceased tried to conceal the whole occurrence taking Rs.3,600/- from the accused persons. One Fekal Paharia, PW-1, was the eye-witness to the occurrence. 3. After completion of investigation, the police submitted charge-sheet against the appellants and 3 (three) others for offence punishable under Sections 302/201/34, IPC. During committal proceedings, the accused Chandro Pator expired. The case was committed to the Court of Sessions, Morigaon for trial and charges under Sections 302/34, IPC were framed against the appellants, which on being read over and explained to them, pleaded not guilty and claimed to stand trial. 4. The prosecution examined as many as 7 (seven) witnesses, including the Medical Officer and the I.O. while the defence examined none. The statement of the accused persons were recorded under Section 313, Cr.P.C. and the learned Sessions Judge, after hearing the parties, passed the impugned conviction and sentence against the appellants. By the impugned judgment, accused Rupen Kurmi, Suben Maradi and Aghuna Konwar were convicted for life under Section 302, IPC with fine of Rs.1,000/- each in default they will suffer rigorous imprisonment for another one month for their offence punishable under Section 302, IPC and also convicted and sentenced accused Rupen Kurmi, Suben Maradi, Aghuna Konwar and Raju Baraik to undergo R.I. for a period of 3 years and a fine of Rs.1,000/- each in default they will suffer R.I. for another one month for their offence punishable under Section 201, IPC. In this present appeal, only accused Suben Maradi and Aghuna Konwar have approached this Court in appeal. 5. Heard Mr. H.R.A. Chowdhury, learned Senior Counsel assisted by Mr. I.A. Hazarika, learned Counsel for the appellants and also heard Mr. Z. Kamar, learned Public Prosecutor, Assam. 6. Mr. Chowdhury learned Senior Counsel have taken us through the evidence of the prosecution recorded by the learned Sessions Judge and submitted that the prosecution have failed to establish the motive behind the crime and as such the learned trial Court ought to have discarded the prosecution case. The second point urged upon seriously by Mr. Chowdhury is that PW-1 Fekal Paharia (whose name should have been Bhakel Paharia) was initially named as an accused and was arrested; but subsequently he was not charge-sheeted and was produced as a prosecution witness. This witness, although adduced as prosecution witness, deposed that he did not know the deceased and as such he was declared hostile. He was, according to Mr. Chowdhury, learned Senior Counsel, an interested witness for which the learned trial Court ought to have disbelieved his evidence. The learned trial Court, as submitted by Mr. Chowdhury, put too much importance and reliance on the evidence of this interested and unreliable witness and convicted the accused persons, including the present appellants solely on his evidence treating him as an eye-witness. 7. Turning to FIR, Exbt.-3, Mr. Chowdhury, learned Senior Counsel submits that there has been a delay of 4 months in lodging the FIR for which no explanation was offered and such unexplained inordinate delay in lodging the FIR is fatal to the prosecution case. Moreover, the examination of the accused-appellants under Section 313, Cr.P.C. was not done in accordance with the law for which the impugned judgment and order is liable to be set aside and quashed. 8. Countering the above submissions of Mr. Chowdhury, learned Senior Counsel for the appellants, Mr. Kamar, learned Public Prosecutor submits that the delay in filing the FIR would in no way affect the prosecution case considering the fact that the police registered the case immediately after getting the information and started investigation in utmost sincerity and quickness without any laches or negligence. No illegality has been committed by the learned trial Court relying on the evidence of eye-witness, PW-1 and there is no legal bar of convicting accused persons on the basis of evidence of solitary witness. No illegality has been committed by the learned trial Court relying on the evidence of eye-witness, PW-1 and there is no legal bar of convicting accused persons on the basis of evidence of solitary witness. The evidence of PW-1 was categorical, clear, cogent and reliable on the basis of which the learned Sessions Judge convicted and sentenced the accused persons which needs no interference by this Court. 9. From the record, no doubt it is found that the PW-1 was named as one of the accused persons, but after investigation he was found as an eye-witness to the occurrence and then he was cited as a prosecution witness. It is no doubt correct that in the examination-in-chief at the first instance, he stated that he knew the accused persons, but he did not know the deceased for which he was declared hostile on the prayer of the learned Public Prosecutor before the trial Court. Thereafter he was cross-examined by the Public Prosecutor. In the cross-examination, he deposed thus: ...I wake up from sleep and found my father-in-law Chandra Pator, Suben Maradi, Rupen Kurmi, Aghuna Konwar beating a person with a piece of wood; the man was bleeding from the mouth; he was lying unconscious near a pucca post. On looking closely, I found the man to be Rajen Baraik, hailing from Gopal Krishna Tea Estate, the man died immediately after. Scared, I immediately left the said place. Thereafter the said person dragged along the deceased and threw the body, into the pit which had been dug there previously for the purpose of making wall near my house, and burried it there. The said persons said to me, "Beware, do not tell anyone or else you will meet the same fate". After some days I come to know that Chandra Pator, Suben Maradi and Aghona Konwar together offered a sum of Rs.3,600/- in cash to deceased's elder brother Raju Baraik and asked him not to lodge information with the police about the said occurrence. Raju Baraik also did not inform about the occurrence anyone as he received the money. But in the evening of 29.7.1997 the policemen from the police station came there and after apprehending me they took me along; when they asked me about the said killing, I told them the truth. I showed them the place where the dead body had been kept burried on 30.7.1997. But in the evening of 29.7.1997 the policemen from the police station came there and after apprehending me they took me along; when they asked me about the said killing, I told them the truth. I showed them the place where the dead body had been kept burried on 30.7.1997. Then the accused persons disinterred the body from the said pit. I told the policemen in that way. Since the accused were from my neighbourhood, I did not want to give evidence. I did not see the occurrence. Police did not beat me. The occurrence took place five years ago. I have accompanied the accused today. The accused paid my bus fare. He discussed the case matter with me. I know Rajen Baraik. PW-1 stated that accused Chandra Pator, his father-in-law, expired during the trial. It was categorically stated by PW-1 that there were some 20 people at the time of disinterment of the dead body and he was taken to depose before the Magistrate. 10. PW-2 Shri Rabindra Das deposed that he knew the deceased Rajen Baraik and the policemen came on the date of disinterring the dead body and he could not recognise the dead body of the deceased Rajen Baraik. PW-3 Shri Thanuram Goala deposed that he knew both accused and the deceased. He was called by police at night. Many people gathered but he did not see from where the dead body was dug out. People told him that it was the dead body of Rajen. PW-4 Shri Biswajeet Dutta deposed that while he was going by the front side of Chandra Pator's house, he saw policemen and other persons. He got down from his bicycle and saw some 2/3 persons digging a pit at some distance; but he did not see what was inside the pit. 11. PW-5 Shri Amulya Deka, I.O. of the case deposed that he received a message from C.I. to the effect that Aghuna Konwar, Chandra Pator and Bhekal killed Rajen Baraik and burried his dead body within the compound of accused Chandra Pator. Having received the said information, he recorded the same in the GD. entry being Nelie Out Post GD. entry No. 659 dated 29.07.1997. He proceeded to the place of occurrence and during enquiry he collected informations. He suspected Chandra Pator, Aghuna Konwar, Rupen Kurmi and Bhakel Paharia and interrogated them. Having received the said information, he recorded the same in the GD. entry being Nelie Out Post GD. entry No. 659 dated 29.07.1997. He proceeded to the place of occurrence and during enquiry he collected informations. He suspected Chandra Pator, Aghuna Konwar, Rupen Kurmi and Bhakel Paharia and interrogated them. During interrogation they admitted commission of offence in the month of March on a Monday at 12.00/1.00 night. They admitted to have assaulted and killed Rajen Baraik and burried his dead body within the compound of accused Chandra Pator. Based on confession of the accused persons, requisition was issued for presence of an Executive Magistrate. The dead body was recovered in presence of Executive Magistrate as pointed out by the accused persons. They were allowed to dig out the dead body and after recovery of the dead body, the Executive Magistrate, PW-6 held the inquest. The dead body was identified by accused Raju Baraik, the elder brother of the deceased. The dead body was sent for postmortem examination and thereafter he lodged the Ejahar. Exbt.-3 on 30.7.1997. The accused persons were arrested and forwarded with a prayer for recording confession under Section 164, Cr.P.C. According to PW-5, Bhakel Paharia, PW-1 was an eye-witness to the occurrence. On his transfer, his successor submitted the charge-sheet. 12. PW-6 Shri Surendra Mohan Goswami, who was posted as SDO (Civil) Sadar Mongaldai stated that he was deputed by the Deputy Commissioner, Morigaon for holding inquest of the dead body. He proceeded to Nelie Out Post and then to the place of occurrence. The police took along all the accused persons, who in his presence, dug the hole at the place where the dead body was burried. They brought out the decomposed dead body with some flesh attached with the bone having no hair in the head, which was identified by Raju Baraik as the dead body of the deceased Rajen Baraik. In his cross-examination, he deposed that there is a mention in the inquest report, Exbt. 2, to the effect that the accused persons admitted to have killed Rajen Baraik. He denied the suggestion that the accused persons did not admit their guilt before him. 13. PW-7 Dr. In his cross-examination, he deposed that there is a mention in the inquest report, Exbt. 2, to the effect that the accused persons admitted to have killed Rajen Baraik. He denied the suggestion that the accused persons did not admit their guilt before him. 13. PW-7 Dr. Jogendra Nath Gohain who performed the post-mortem examination on the dead body of Rajen Baraik, deposed that he found the whole body was fully decomposed and as such he could not detect the organs properly, for which could not ascertain the cause of death. In his opinion, cause of death could not be ascertained until and unless the report of examination of specimen from the Forensic Medicine, Guwahati could be received. To a question of the Court he replied as follows: I did not mention nor I explained the word 'specimen'. Generally, we take liver, stomach contents, kidney etc. for FSL examination. I used the word 'specimen' in my report. Skeleton is bony part of body. A skeleton cannot have its muscles or any organs except the bony part. It is not a fact that I did not examine the dead body, I submitted the report without examining the dead body. Since the dead body was identified by none other than accused Raju Baraik, elder brother of the deceased, there is no doubt that the dead body exhumed in decomposed state was that of the deceased Rajen Baraik. 14. This case is based on the evidence of solitary eye-witness, PW-1, Bakhel Paharia. It is to be examined and considered whether his evidence is cogent, believable and inspiring confidence of the Court. Although he was declared hostile for refusing to depose in favour of the prosecution, he had, in cross-examination by the prosecution counsel, categorically stated that he woke up from sleep and found his father-in-law Chandra Pator alongwith other accused Shri Suben Maradi, Rupen Kurmi and Aghuna Konwar beating a person with a piece of wood who was bleeding from the mouth and lying unconscious. He had occasion to look at the person who was being beaten up and could recognise him as Rajen Baraik who hails from Gopal Krishna Tea Estate. He clearly stated that he died immediately. He had occasion to look at the person who was being beaten up and could recognise him as Rajen Baraik who hails from Gopal Krishna Tea Estate. He clearly stated that he died immediately. He could also see the aforesaid accused persons dragging the dead body of Rajen Baraik and throwing it in the pit which was dug previously in the compound of his father-in-law, accused Chandra Pator for the purpose of making well near his house. As he was found present near the place of occurrence, he was warned by the aforesaid accused persons not to disclose it to anybody and if he does so he would meet the same fate. He also stated that after some days the aforesaid accused persons offered a sum of Rs.3,600/- in cash to Shri Raju Baraik, elder brother of the deceased to shut his mouth and not to inform the police about the said occurrence. According to this witness, Raju Baraik obliged them and did not inform the police. However, the police came in the evening of 29.7.1997 and took him alongwith them and enquired about the killing of Rajen Baraik. He voluntarily told the police about the incident and showed the place where the dead body was kept burned. According to this witness, the accused persons disinterred the dead body from the said pit. In cross-examination by the prosecution, it could not be brought on record that PW-1 Bhakei Paharia had any enmity with the aforesaid accused persons and thus deposed against them out of enmity. It is an admitted fact that the accused Shri Chandra Pator, since deceased, was his own father-in-law and the other accused persons are also co-villagers. No suggestion was put by the prosecution to this witness that the decomposed dead body was not disinterred by the aforesaid accused persons themselves in presence of a Magistrate. PW-6, the police personnel and some villagers. The evidence of PW-1 is corroborated by the evidence of I.O., PW-5 in regard to disinterment of the dead body of the deceased in presence of the Magistrate and identification of the dead body by Raju Baraik. The I.O., PW-5, has also supported the evidence of PW-1 by deposing to the effect that Bhakei Paharia was an eye-witness to the occurrence. 15. The I.O., PW-5, has also supported the evidence of PW-1 by deposing to the effect that Bhakei Paharia was an eye-witness to the occurrence. 15. The defence did not take the plea that there was no chance for the eye-witness P W 1 to be present at the place of occurrence at the time of occurrence or he was not at all present at the time of occurrence to see the entire occurrence. No suggestion was put on PW-1 in this regard. It is quite natural that the PW-1 being a co-villager and son-in-law of the accused Chandra Pator, happened to have been present at the place of occurrence in the night after hearing at least some commotion. His presence at the place of occurrence and observing the act of beating the deceased and throwing the dead body in the pit in the compound of his father-in-law cannot be doubted or disbelieved. There is no reason to cast any doubt on him that he deposed falsely against his own father-in-law and the other accused co-villagers. His evidence cannot be doubted for want of any proved motive for making such statement against the accused persons. It is not comprehensible why this witness, PW-1, should depose against his own father-in-law and the co-villagers without any previous animosity or motive behind it. Looking at the circumstances under which the PW-1 deposed before the learned trial Court, there would be no hesitation to come to a conclusion that he was present at the place of occurrence and he could see the entire incident as stated earlier and his evidence is cogent and very much reliable for the purpose of recording conviction against the accused persons. 16. It is an admitted position that there is no other eye-witness to the occurrence except PW-1. Now we are to consider whether the evidence of the PW-1, a solitary eye-witness, is sufficient for convicting the accused. As has been observed earlier that the evidence of PW 1 has been found cogent and reliable, there would not be any legal hurdle in basing his evidence for conviction of the accused persons. It is the settled law that no particular number of witnesses are required for proving a fact. It is the material evidence and not the number of witnesses to be taken note of by the Court to ascertain the truth of allegations made against the accused. It is the settled law that no particular number of witnesses are required for proving a fact. It is the material evidence and not the number of witnesses to be taken note of by the Court to ascertain the truth of allegations made against the accused. The question may arise as to why the PW-1 did not inform the village headman or other co-villagers and for that matter the police about the aforesaid occurrence and did not disclose until the police visited his village after a long gap. Can this witness, under such circumstances, be treated as reliable and trust-worthy? There should not be a ground for disbelieving this witness because from the evidence, it is found proved that he was warned by the accused persons not to disclose the same with consequence of meeting the same fate of the deceased i.e. he would be killed. 17. As regards the delay in lodging the FIR, the position has been explained by the prosecution. The occurrence of murder was not disclosed by PW-1 due to the threat given to him by the accused persons as stated earlier. The deceased's elder brother Raju Baraik, as he was gained over by payment of Rs.3,600/-, inspite of knowing the occurrence, refrained himself from informing the police. These two facts have been amply proved in the evidence of PW-1 and PW-5. In our considered opinion, such delay, reasons for which have been explained, cannot be a ground for disbelieving the prosecution story and setting aside the impugned judgment and order convicting the accused persons. This being the position, the submission of Mr. Chowdhury, learned Senior Counsel for the appellants, is not found as sound as to set aside the conviction and sentence on that count. 18. There is no basis for branding the PW 1 as an interested witness as has been submitted by the learned Senior Counsel Mr. Chowdhury. Undisputedly he is the son-in-law of accused Chandro Pator (since deceased). This is not a case where the PW 1 has deposed in favour of his accused father-in-law to save him from charge of murder. He has rather deposed against his accused father-in-law and had he been survived till the impugned judgment and order was passed, he would also have been convicted like the other co-accused. This is not a case where the PW 1 has deposed in favour of his accused father-in-law to save him from charge of murder. He has rather deposed against his accused father-in-law and had he been survived till the impugned judgment and order was passed, he would also have been convicted like the other co-accused. The other co-accused persons are also co-villagers of the PW-1 and no case of enmity between him and the accused persons, having been brought on record as stated earlier, there is no scope for disbelieving him as an interested witness. Even assuming that PW-1 has been found as an interested witness, his evidence of having seen the occurrence of killing the deceased by the accused persons, the material fact, cannot be discarded because of the established law that in all the cases the evidence of interested witness cannot be ignored. The defence could not make out any case to the effect that the PW-1 is an interested witness and his evidence cannot be taken into account for conviction of the accused persons. We could not persuade ourselves to accept the submission of the learned Senior Counsel Mr. Chowdhury to reject or discard the evidence of PW-1 as one of an interested witness. 19. In respect of cause of death of the deceased person, the medical witness PW-7 made categorical statement that the dead body was in a complete decomposed state and it was not possible to ascertain the cause of death until the report from the Forensic Medicines is received. Here again we find that finding of cause of death has become immaterial in this case considering the fact that the eye-witness has already deposed to the effect that the deceased was assaulted, killed and engraved in the pit and the dead body was identified by the elder brother of the deceased. Sufficient evidence have been found that the deceased was done to death by the accused persons and there is no controversy regarding the said facts due to availability of evidence of an eye-witness. The cause of death is normally required mostly in cases where the conviction is sought to be made on the basis of circumstantial evidence and there is no ocular evidence. The cause of death is normally required mostly in cases where the conviction is sought to be made on the basis of circumstantial evidence and there is no ocular evidence. In the present case there is a credible and cogent ocular evidence as discussed above and as such the prosecution case against the accused persons would not be dependent on the availability of cause of death of the deceased and this would not be a sufficient ground for quashing the impugned conviction and sentence. 20. Mr. H.R.A. Chowdhury, learned Senior Counsel for the appellants strenuously argued that the appellants were not examined in a proper manner as provided under Section 313, Cr.P.C. inasmuch as the learned trial Court did not put the questions to the appellants on the material circumstances which is intended to be used against them and thereby they were deprived of an opportunity to explain the facts and circumstances appearing against them in the prosecution's evidence. Due to defective questioning, the appellants could not take the ground of defence. This, according to Mr. Chowdhury is a serious lapse on the part of the learned trial Court in conducting the trial. In order to consider this aspect, it has become necessary to peruse the questions put by the trial Court and answers given by the accused persons. First of all the questions and answers in respect of appellant Suben Maradi is quoted below: Q. 1. There is a charge against you that in the month of March, 1997 by night at Ulukuchi you committed murder of Rajen Baraik by causing intentional death of said Rajen Baraik in furtherance of common intention and thereafter, for causing disappearance of evidence concealed the dead body of said Rajen Baraik in furtherance of common intention. Have you anything to say in this regard? Ans. I did not commit this offence. Q. 2. Witness Surendra Mohan Goswami in his evidence stated that as per requisition of Nellie police, he went to the place of occurrence and in his presence, all of you admitted that you dug the hole for the purpose of a latrine, but in that hole, subsequently you burried the dead body and at the time of removing the dead body, all of you dug it and the decomposed dead body was identified by one Raju Baraik. Have you anything to say in this regard? Ans. Nothing to say. Have you anything to say in this regard? Ans. Nothing to say. From the record it is found that similar questions were put to appellant Aghuna Konwar also. Both the accused-appellants gave the same answers. 21. We are concerned with the questions put by the learned trial Court to the appellants. The above questions were not asked generally. The law enunciated by the Apex Court in the case of Ajmer Singh v. State of Punjab reported in 1953 CriLJ 521, is that questions asked generally to the accused is not a sufficient compliance with the provision of Section 313, Cr.P.C. It is no doubt a settled position of law that examination of accused under this section is not intended to be an idle formality and it has to be carried out in the interest of justice and fair play in action. This provision is for the benefit of the accused and for enabling him to obtain the full benefit under this section, the trial Court must examine him after the witnesses of the prosecution have been examined and before he is called upon to enter upon his defence. Looking at the aforesaid questions, we are satisfied that the questions covered the evidence led by the prosecution against the appellants which are sufficient to inform them about the evidence on record against them and thus to defend themselves by adducing evidence to prove their innocence. The appellants preferred not to adduce any evidence in their defence. We find no irregularity or lapses on the part of the learned trial Court in the matter of recording statements under the provisions of Section 313 of the Code of Criminal Procedure and accordingly the submission of Mr. Chowdhury is found unacceptable. 22. We have given our anxious thought and consideration on all aspects of the matter on the basis of evidence on record and found that the prosecution has been able to prove its case beyond any shadow of doubt and the learned trial Court rightly passed the impugned judgment and order convicting and sentencing the appellants which call for no interference by this Court and accordingly we confirm the impugned judgment and order dated 10.6.2003 passed by learned Sessions Judge, Morigaon in Sessions Case No. 11/2001. This appeal is without merit and accordingly the same is dismissed. Appeal dismissed.