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2008 DIGILAW 673 (GAU)

Nityananda Dowarah v. State of Assam

2008-09-09

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. M.K. Sarma, learned Amicus Curiae, who has been appointed in place of Mr. R. Goswami earlier appointed Amicus Curiae as he is found to be absent when the matter is taken up for hearing. Also heard Mr. K.A. Mazumdar, learned Addl PP, Assam. 2. This jail appeal has been directed against the judgment and order dated 4.12.03 passed by the learned Sessions Judge, Golaghat in Sessions Case No. 60/03 whereby the Appellant was convicted under Section 302 IPC for killing his wife, Smt. Banful Dowarah (hereinafter referred to as 'the deceased') and sentenced to undergo rigorous imprisonment for life. 3. The facts of the case, in brief, as unfolded by the prosecution are that P.W. 7, Gethua Dolakakhoria on 6.2.03, lodged an Ejahar with Numaligarh Police Outpost under Golaghat Police Station alleging that on 5.2.03 (yesterday), around 8 pm, the Appellant hacked P.W. 7's younger sister, the deceased, to death with a dao and left the body in the backyard of the appellant's house. The police after completion of the investigation submitted charge-sheet against the Appellant under Section 302 IPC. 4. During trial, prosecution examined as many as 8 witnesses including two official witnesses namely P.W. 5, Dr. S.T. Hussain and P.W. 8, Sri Deben Borah, Investigating Officer (I.O. for short). The Appellant was also examined under Section 313 Code of Criminal Procedure. 5. Learned Sessions Judge having carefully appreciated the depositions of all the witnesses and also keeping in view the statement made by the Appellant in his examination under Section 313 Code of Criminal Procedure to the effect that he admitted the killing of his wife, found the Appellant guilty of offence under Section 302 IPC and consequently, convicted and sentenced him as indicated above. 6. We have meticulously analysed the testimony of all the witnesses, particularly, P.W. 1, Sri Phani Dowarah, father of the Appellant, P.W. 2, Smt. Debeswari Das, P.W. 3, Sri Biren Das and P.W. 4, Sri Gurucharan Das. All these witnesses categorically stated that the Appellant confessed before them about killing of his wife. According to P.W. 1, at about 8 pm, when he was lying on his bed, upon hearing the alarm of his wife, he came out from his house and saw his daughter-in-law lying in the courtyard with cut injury in her neck. All these witnesses categorically stated that the Appellant confessed before them about killing of his wife. According to P.W. 1, at about 8 pm, when he was lying on his bed, upon hearing the alarm of his wife, he came out from his house and saw his daughter-in-law lying in the courtyard with cut injury in her neck. At that time, his son, the Appellant was washing his hands and feet at a little distance of the dead body. Then he came running towards P.W. 1. On being asked by P.W. 1, the Appellant stated that he killed his wife by cutting her with a dao. 7. P.W. 2, Smt. Debeswari Das narrated the same story. She deposed that upon hearing the hue and cry raised by P.W. 1, they went to the house of the Appellant and found the Appellant's wife lying dead in the backyard of their house with severe injury in her neck. P.W. 1, Appellant's father told them that the Appellant hacked his wife with a dao. When this witness left for home the Appellant followed her and asked her for betel nut. When she gave him betel nut she asked him about the occurrence. Then the Appellant confessed that he killed his wife. 8. P.W. 3, Sri Biren Das also testified that it was the Appellant who confessed before the villagers that he killed his wife by cutting her with a dao and after killing his wife he dragged her body to the backside of his house near the bamboo grove. 9. Insofar as the evidence of P.W. 4 is concerned, this witness, in his cross-examination, deposed to the extent that the Appellant distributed betel nut among the people who assembled there to see the incident. 10. In the above premises, it is seen that the extrajudicial confession though generally it is a week piece of evidence, was duly and totally corroborated by the evidence of the aforesaid witnesses and the same was made by the Appellant perfectly voluntarily and it appeared to be true and believable. 11. Besides, the Appellant, in his examination under Section 313 Code of Criminal Procedure, against all the questions put to him answered in affirmative stating that he confessed his guilty. 11. Besides, the Appellant, in his examination under Section 313 Code of Criminal Procedure, against all the questions put to him answered in affirmative stating that he confessed his guilty. Even against question No. 13, i.e. "Do you have anything to say regarding the case?" the Appellant answered as follows: I killed my wife as I suspected that she had an illicit relation with a person, namely Putul Saikia who lived in her father's house. I have four sons and daughters. The elder son is 10 years of age. 12. Having considered the statement made by the Appellant under Section 313 Code of Criminal Procedure and the extrajudicial confession so made to those witnesses, namely, P.Ws. 1, 2, 3 and 4, we are of the view that it was the Appellant who was solely involved in killing of his wife, the deceased with all his intention and knowledge to cause her death and accordingly, we do not find any cogent or good ground to disbelieve the depositions of those witnesses above named, more so, the evidence of P.W. 1 who is the father of the Appellant. Consequently, we are in Magreement with the views expressed and the findings recorded by the learned trial Judge in rendering the impugned judgment of conviction and sentence. The impugned conviction and sentence deserves no interference by this Court and accordingly, the same stands upheld and confirmed. 13. In the result, the appeal fails and stands dismissed. 14. Send down the lower Court record forthwith. 15. Before parting with this case, we would like to place on record our appreciation to Mr. M.K. Sarma, learned Amicus Curiae for his valuable assistance to the Court in arriving at the decision abovementioned. Accordingly, we order that he is entitled to get his professional fees, which is quantified at Rs. 5,000/- (Rupees five thousand only).