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2009 DIGILAW 18 (GAU)

Pitam Bhumij v. State of Assam

2009-01-09

A.C.UPADHYAY, AFTAB H.SAIKIA

body2009
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. P.K. Talukdar, learned Amicus Curiae representing the Appellant from jail as well as Mr. K.C. Mahanta, learned P.P., Assam. 2. This Criminal Jail Appeal has been directed against the judgment and order dated 24.2.2003 passed by the learned 1st. Additional Sessions Judge (Adhoc), Sivasagar in Sessions Case No. 164 (S-Q/08 whereby the Appellants were convicted under Stations 448/302/34, IPC and sentenced to pay a fine of Rs. 500/- each for the offence under Section 448 , IPC, in default, simple imprisonment for one month and to suffer imprisonment for life and to pay a fine of Rs. 2000/-, in default, rigorous imprisonment for another six months for the offence under Sections 302/ 34, IPC. 3. It was alleged in the F.I.R. lodged on 23.6.1998 by one Smt. Sarati Kishan, PW-1, wife of Shri Gunindra Kishan with Sapekhati Police Station that on 22.6.1998 at about 6 p.m. the accused namely 1. Sri Pitam Bhumij, 2. Smt. Beli Bhumij, 3. Shri Laksheswar Bhumij and 4. Shri Ram Bhumij surrounded their house, broke the door and walls of the house and entered into the room. They hit her husband Shri Gubinda Kishan (hereinafter called as 'the deceased') with dao and spear and dragged him out of the house and killed him by hacking him in his head with dao. Then they dragged him to the pond and felled him into the water. 4. On receipt of the written ejahar from the complainant, the police registered a case and started investigation. During the course of investigation, police did inquest on the dead body of the deceased Gunindra w Kishan and then the same was sent for postmortem examination. After completing the investigation, police submitted charge sheet against the accused persons under Sections 448/ 302/34, IPC. 5. In course of trial, the prosecution examined as many as 9 witnesses including Dr. Upendra Nath Gogoi, PW-7 who conducted the autopsy on the dead body of the deceased and Mr. Ajoy Kr. Dutta, the Investigation Officer (for short I.O.), PW-9. Smt. Sarati Kishan (PW-1) was produced as the sole eye witness. 6. 5. In course of trial, the prosecution examined as many as 9 witnesses including Dr. Upendra Nath Gogoi, PW-7 who conducted the autopsy on the dead body of the deceased and Mr. Ajoy Kr. Dutta, the Investigation Officer (for short I.O.), PW-9. Smt. Sarati Kishan (PW-1) was produced as the sole eye witness. 6. The trial Court having appreciated the evidence of as many as 9 witnesses and also taking into account the statements of the accused/Appellant so recorded under Section 313, Code of Criminal Procedure as well as upon hearing the learned Counsel for the parties, found the Appellants guilty for the offence of committing murder of the deceased and accordingly convicted and sentenced the Appellants as indicated above. 7. At the very outset, the medical evidence so adduced by PW-7 may be noticed: (i) At occupital region of head there is a sharp cutting wound with cotted blood in an around the wound. (ii) An other wound on the left side of the wound is circular in shape. (iii) On dissection clean cut wound on the sculp at the occipatal region. Wound is 12 cm. in length and of whole scalp depth. The direction is transvers The wound is retracted (sic) clotted blood in an around the wound is found. The occipatal bond is fractured along the line (sic) of the clean cut wound with depression of some of the fractured part The facture is 10 cm. in length. The Doctor in his opinion stated that all the injuries were ante-mortem wounds and the person died of coma following the massive end wound of the occipital region of the head which was inflicted from the backside of the deceased with sufficient force. The weapon used a sharp cutting weapon. 8. PW 1, Smt. Sarati Kishan being examined as the sole eye-witness in her evidence stated that 4 (four) accused persons were co-workers with her. On the day of occurrence at about 5 p.m. while she along with her husband the deceased were at home, the accused Pitam, Ram, wife of Pitam and Lakheswar entered into the home and accused Pitam assaulted her husband with an axe. The accused Lakheswar and Ram were the sons of Pitam and Bella. Ram and Pitam were armed with axes. The accused Lakheswar and Ram were the sons of Pitam and Bella. Ram and Pitam were armed with axes. After dealing several blows on the body of her husband, they dragged out the dead body and thrown into a pond where her husband died. In cross examination this witness while denying the suggestion, Dasarath was bearing a grudge against her husband stated that it was Dasarath who actually killed her husband bearing a grudge against her husband as because Dasarath lost his job for her husband. It appears that it was Dasarath. This piece of evidence has been duly corroborated, with the statements of the accused/Appellants made under Section 313, Code of Criminal Procedure. The Appellant Lakheswar Bhumij in his examination against the question "Do you have anything to say" stated that "On the day of occurrence I went to the garden to pluck tea leaf. Around 4 p.m. I returned from my duty and went to the house of my sister's husband Lison Bhumij at Salkathani's daily bazaar and stayed there for the night. Returning home the following day I heard that Dasarath Teli had killed Gunindra kisan. Having my meal I was about to leave for my duty police came and picked me up to the police station. Later I was sent to the Court. This is what I have to say." 9. Another Appellant Pitam Bhumij in his examination against the question "Do you have anything to say" answered as "In the evening on the day of occurrence after having my meal I was about to leave for my duty when I saw Budhu Kharia's pig and Gunindra Kishan's pig devouring my "Ahu paddy; I drove away both the pigs towards Gunindra's house. I met Dasarath Teli on my way. I told him of the pigs devouring the cultivation, Dasarath had art axe in his hand. Gunindra Kishan also came and asked me to show which pig devoured the cultivation. As soon as I showed the pig Dasarath Teli hit Gunindra in his hand with the axe and ran away. I immediately came to Sapekhati police station. I saw Gunindra's body fell into a near by pond. I came to lodge ejahar with the police station. But I did not find the O/C. A police personnel detained me in Sapekhati PS. for the night. I immediately came to Sapekhati police station. I saw Gunindra's body fell into a near by pond. I came to lodge ejahar with the police station. But I did not find the O/C. A police personnel detained me in Sapekhati PS. for the night. Next day police picked up my son Ram Bhumij, Lakheswar Bhumij and my wife Bela Bhumij. Arresting us police sent us to the Court. Dasrath Teli committed suicide by hanging on the day of occurrence itself. Police beat me up. This is what I have to say." 10. From a close scrutiny of the deposition of PW-1 who was projected as the solitary eye-witness, we are not impressed at all with the same inasmuch as infirmities and inconsistencies were at large in her testimony. Where in one hand, she asserted that all the four Appellants, being armed with dao, spear etc. inflicted injuries on her husband, on the other hand, she deposed that it was actually Dasarath who killed her husband. Such statements did get due corroboration from the statements of the Appellants in their examination under Section 313, Code of Criminal Procedure. That apart, medical evidence did not reflect any such multiple injuries which would have generally occurred due to the attack by four persons being armed with deadly weapons like dao, spear etc. In such premises, we agree to say that PW-1, Smt. Sarati Kishan was not a reliable and believable witness. 11. In view of the above, we are of the considered view that it was Dasarath who was involved for committing the crime of murder. That being the factual situation, we do hold that the Appellants are entitled to get the benefit of doubt. 12. Consequently, the impugned conviction and sentence is hereby stands quashed and set aside. 13. The Appellants be set at liberty, if not otherwise required in connection with any other case/cases. 14. In the result, the jail appeal succeeds and stands allowed. 15. Send down the L.C.R. forthwith. 16. Before parting with the judgment, we would like to put on record our appreciation to Mr. P.K. Talukdar, the learned Amicus Curiae for his valuable assistance rendered to arrive at the abovementioned decision in this appeal. Accordingly, we order that he is entitled to get his professional fee which is quantified at Rs. 5000/-.