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2009 DIGILAW 463 (GAU)

Dipok Bakti v. State of Assam

2009-07-13

BIPLAB KUMAR SHARMA, RANJAN GOGOI

body2009
JUDGMENT Ranjan Gogoi, J. 1. Heard Mr. P.J. Saikia, learned Counsel for the accused/Appellant and Mr. Z. Kamar, learned Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 5.8.2003 passed by the 1st Addl. Sessions Judge (Adhoc), Sibsagar in Sessions Case No. 42(S-S) 2002. By the aforesaid judgment and order the learned trial Court has convicted the accused/Appellant under Section 302 IPC and has sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 5000/-, in default, to undergo further rigorous imprisonment for one year. Aggrieved by the aforesaid conviction and sentence imposed this appeal has been filed. 3. The prosecution case, in short, is that in the evening of 19.5.2001 the accused/Appellant accompanied by P.W.4, Pradip Dutta; P.W.5, Chandan Dutta and P.W.9, Umasankar Das surrendered himself to the Halwating Police Station by handing over a Naga dao. On the basis of the G.D. Entry made (Ext. 8) investigation commenced with the seizure of the Naga dao from the accused/Appellant in presence of the aforesaid three persons i.e. P.W.4, Pradip Dutta; P.W.5, Chandan Dutta and P.W.9, Umasankar Das. Thereafter P.W.11, Niren Neog, S.I. of Police, inspected the place of occurrence and had engaged a VDP volunteer to guard the dead bodies for the night. Statements of witnesses were also recorded. In the next morning P.W.8, Dineswar Shah, lodged an FIR before the Officer-in-charge, Halwating Police Station stating that at about 6.30 P.M. of the previous day the accused/Appellant had come to his house and had killed his wife Meena Devi and daughter Saraswati Kumari by cutting them with a dao. On the basis of the FIR, Halwating P.S. Case No. 43/2001 under Section 302, IPC was registered. On the very same morning P.W. 11 again visited the place of occurrence and prepared a sketch map of the said place. Inquests were held on the dead bodies which were sent for post mortem examination. On receipt of the post mortem examination and after completion of investigation charge sheet was submitted against the accused/Appellant under Section 302, IPC. 4. The offence alleged being exclusively triable by the Court of Sessions the learned S.D.J.M.(S), Sibsagar, by order dated 27.8.2001, committed the case for trial to the Court of Sessions at Sibsagar. 5. On receipt of the post mortem examination and after completion of investigation charge sheet was submitted against the accused/Appellant under Section 302, IPC. 4. The offence alleged being exclusively triable by the Court of Sessions the learned S.D.J.M.(S), Sibsagar, by order dated 27.8.2001, committed the case for trial to the Court of Sessions at Sibsagar. 5. In the trial court charge under Section 302, IPC was framed against the accused/Appellant who pleaded not guilty to the said charge and claimed to be tried. In the course of trial 11 witnesses were examined by the prosecution. Defence did not adduce any evidence. However, the statement of the accused/Appellant was recorded under Section 313, Code of Criminal Procedure. Thereafter, by the impugned judgment and order, the accused/Appellant has been convicted and sentenced as aforesaid giving rise to the present appeal. 6. Before proceeding any further, the core of the evidence tendered by the prosecution witnesses may be noticed. P.W. 1, Mamtaz Begum, was declared hostile by the prosecution as the said witness did not support its case. In cross-examination this witness was confronted with her previous statements recorded under Section 161, Code of Criminal Procedure. P.W. 2, Polin Chandra Goala, claims to have known the accused as well as the first informant. According to P.W.2, at about 7.00 P.M. of the day of occurrence the first informant had come to his house and informed him that the accused/Appellant had hacked his wife and daughter to death. According to P.W.2, he along with the VDP Secretary of the village went to the house of the first informant and found the police already there. P.W.2 had further deposed that the police had informed the persons present that they were not in a position to take the dead bodies away as it was night time and that suitable arrangements will be made in the next morning. According to P.W.2, in the next morning he had written the Ejahar at the request of the first informant who, on being satisfied with the contents thereof when the same was read over, had put his thumb impression on the FIR (Ext. 1). P.W. 3, Kusum Devi, did not support the prosecution case and was declared hostile. According to P.W.2, in the next morning he had written the Ejahar at the request of the first informant who, on being satisfied with the contents thereof when the same was read over, had put his thumb impression on the FIR (Ext. 1). P.W. 3, Kusum Devi, did not support the prosecution case and was declared hostile. P.W. 4, Pradip Dutta, in his deposition had stated that at about 6.30 P.M. of the day of occurrence while going to Swapna Hotel he noticed many people surrounding the accused/Appellant and the accused/Appellant was saying that he had cut two women and wanted to be escorted to the police station. According to P.W.4, the accused/Appellant had a Naga dao in his hand which was stained with blood. Thereafter, according to P.W.4, he along with P.W.5, Chandan Dutta and P.W.9, Umasankar Das, took the accused/Appellant to Halwating Police Station and handed him over to the police along with the dao. P.W. 5. Chandan Dutta, had deposed in, more or less, a similar manner and had corroborated the evidence tendered by P.W.4. P.W. 6, Dr. Biman Kumar Das, had conducted the post mortem on the dead bodies of the deceased. This was on 20.5.2001. He had proved the post mortem reports as Exts. 5 and 6. Deposing from the said reports P.W. 6 found the following injuries on the dead bodies of the deceased: Meena Devi 1) External appearance -- Dead body was stout. Rigor mortis present. 2) Wounds a) One incised wound on the left cheek placed horizontally -- size 5" x 2 x 1". Teeth exposed. b) One incised wound on the front of the forehead and scalp size 5" x 1/2"x 1/2". c) One incised wound on the left arm size 5" x 4" x 2". d) One incised wound on the left elbow size 3" x 1" x 2". e) One incised wound on the right side of the neck size 5" x 4" x 4". f) One incised wound on the left side of the upper part of the abdomen. Stomach is exposed through the wound size 4" x 2" x 1". g) One incised wound on the right thumb size 1/2" x 1/2" x 1/4". All the wounds are antimortem. 3) Cranium and spinal canal a) Scalp: One incised wound on the forehead and scalp. Frontal bone fractured. Stomach is exposed through the wound size 4" x 2" x 1". g) One incised wound on the right thumb size 1/2" x 1/2" x 1/4". All the wounds are antimortem. 3) Cranium and spinal canal a) Scalp: One incised wound on the forehead and scalp. Frontal bone fractured. b) Brain: Clotted blood is seen on the surface of the frontal lobe. 4) Thorax --All thoracic organs are found healthy. 5) Abdomen -- Stomach is exposed through the incised wound on the upper abdomen. Liver, Spleen, kidneys and other internal organs are found healthy. 6) Muscle, bones and joints -- Fracture of the frontal boned was seen. In my opinion the cause of death of the deceased was due to the injuries sustained by the deceased. Injury Nos. 5, 2 and 6 are independently sufficient to cause the death of a person. The antemortem wounds found on examination on the dead body of the deceased may be caused by means of sharp cutting weapons like material Ext. 1. Ext. 5 is the post mortem report and Ext. 5(1) is my signature. Saraswati Kumari "On the same day at 12 noon I did post mortem on the dead body of Saraswati @ Saraswati Kumari aged about 14 years, female, Hindu, daughter of Sri Dinesh Shah of village Borsila Basti P.W. Haluwating in connection with Haluwating P.S. Case No. 43/2001 under Section 302 of IPC. The dead body was indentified by UBC 175 Kanak Bezboruah and relatives Joynath Sah and Rajkumar Sah. My findings on post mortem examination are as follows: 1) External appearance -- The dead body was stout. Rigor mortis present. 2) Wounds a) One incised wound placed obliquely on the left side of the face and neck size 8" x 4" x 3". The wound extends from the angle of mouth upto the spinal cord. The underlying muscles, big vessels including carotids were cut below the wound. The wound is antemortem in nature. 3) Cranium and spinal canal healthy. 4) Thoracic organs are found healthy. 5) Abdomen -- All abdominal organs are healthy. 6) Muscles, bones and joints -- Fracture of the left mandible. Opinion: In my opinion the death is due to shock and haemorrhage as a result of the injury sustained by the deceased. Injury No. 1 is sufficient to cause her death. 4) Thoracic organs are found healthy. 5) Abdomen -- All abdominal organs are healthy. 6) Muscles, bones and joints -- Fracture of the left mandible. Opinion: In my opinion the death is due to shock and haemorrhage as a result of the injury sustained by the deceased. Injury No. 1 is sufficient to cause her death. Injury No. 1 may be caused by means of sharp cutting weapon like material Ext. 1 dao. Ext. 6 is the report and Ext. 6(1) is my signature. 7. P.W.7, Sontosh Sah, is the six year old son of the deceased who had deposed that he knew the accused/Appellant from before and further that in the evening of the day of occurrence the accused/Appellant had come to their house armed with a Naga dao. According to P.W.7, while he was returning from market with green vegetables he had noticed the accused/Appellant inflicting dao injuries on his mother and elder sister. P.W.7 had further deposed that seeing the occurrence he, taking his younger brother, fled from the place and informed his father (P.W.8) who was in the market. Thereafter, according to P.W.7, he along with his father came to the house and found his mother and elder sister already dead. P.W.8, Dineshwar Shah, is the first informant. According to P.W.8, at about 7/7.30 P.M. of the day of occurrence while he was selling gram in the market his two sons i.e. Santosh Sah and Brigunath Sah came to the market. According to this witness, his son, Santosh, informed him that the accused/Appellant had killed his mother and elder sister by cutting them. P.W.8 has further deposed that immediately he came home and found his wife and daughter lying dead in the courtyard with cut injuries on their bodies. P.W. 9, Umasankar Das, is one of the persons who had taken the accused/Appellant to the Police Station along with P.Ws.4 and 5. P.W.10, Sankar Lal Gupta, is a witness to the seizure of the wearing apparels of the deceased. P.W.11, Sri Niren Neog, is the Sub-Inspector of Police who had conducted the investigation of the case. In his evidence P.W.11 had stated that in their statements recorded under Section 161, Code of Criminal Procedure P.Ws.1 and 3 had stated that they had seen the accused/Appellant with a Naga dao in his hand saying that he had killed two persons in the house of Dinesh (first informant). In his evidence P.W.11 had stated that in their statements recorded under Section 161, Code of Criminal Procedure P.Ws.1 and 3 had stated that they had seen the accused/Appellant with a Naga dao in his hand saying that he had killed two persons in the house of Dinesh (first informant). P.W.11 had further deposed about the surrender of the accused/Appellant before him in the police station along with a Naga dao and that P.Ws.4, 5 and 9 had accompanied the accused to the police station. 8. From the above narration of the evidence tendered by the prosecution witnesses it is clear and evident that in the evening of the day of occurrence the accused/Appellant had surrendered in the Police Station and had handed over a Naga dao which was seized by the police vide seizure list (Ext. 4). The Naga dao was exhibited as Mat. Ext. 1 in the course of the trial. At the time of surrender of the accused/Appellant in the Police Station he was accompanied by P.Ws.4, 5 and 9. P.Ws.4 and 5 had clearly stated that they had seen the accused/Appellant with a blood stained Naga dao in his hand saying that he had killed two persons with the dao. The said witnesses had further deposed that the accused/Appellant wanted to be escorted to the Police Station. The fact that the accused was taken to the police station by P.Ws.4, 5 and 9 along with the Naga dao has been admitted by the accused/Appellant in his statement recorded under Section 313 Code of Criminal Procedure. 9. P.W.7 is an eye-witness to the occurrence who had vividly described the incident and what had happened thereafter. According to this witness, while returning home from the market after purchasing green vegetables he had seen the accused/Appellant hacking his mother and elder sister with a dao and on being frightened this witness had ran to his father in the market accompanied by his younger brother. P.W.8 who is the father of P.W.7 has testified that both his sons had come running to him and Santosh (P.W.7) had informed him that the accused/Appellant had killed his mother and elder sister by cutting them with a dao. Thereafter he had gone to his house and found his wife and daughter lying dead in the courtyard P.W.7 is, therefore, fully corroborated by the evidence of P.W.8. Thereafter he had gone to his house and found his wife and daughter lying dead in the courtyard P.W.7 is, therefore, fully corroborated by the evidence of P.W.8. The cross-examination of the aforesaid two witnesses by the defence has failed to throw any doubt on the evidence tendered by either of the witnesses, in any manner, whatsoever. 10. We have noticed that the age of P.W.7 in the deposition form has been recorded as about six years and the said deposition was so recorded on 21.6.2003. The date of occurrence is 19.5.2001. An argument has been made by the learned Counsel for the accused/Appellant that having regard to the age of the witness, both on the date of occurrence as well as at the time of recording his deposition, the evidence of P.W.7 ought not to be accepted by the Court. In this regard, learned Counsel has further pointed out that apart from P.W.7 there is no other eye-witness to the occurrence and if the evidence of the said witness is to be excluded a serious doubt will arise with regard to the prosecution version. 11. We have considered not only the submissions advanced by the learned Counsel for the accused/Appellant but all the other relevant facts and circumstances of the case. Evidence of a child witness, who may be a natural witness in a given case, can be readily accepted by the Court provided there are no serious inconsistencies or inherent contradictions in such evidence. The rule of contradiction of the evidence of a child witness is a rule of procedure and not a rule of law. In the present case P.W.7 had given a vivid description of the incident and what had happened thereafter which finds corroboration not only from the evidence of P.W.8 (father of P.W.7) but also stands corroborated by the evidence of P.Ws.4 and 5. P.W.7 being the son and younger brother of the deceased persons cannot be doubted either with regard to his memory or his capacity to narrate before the Court what had happened. In fact, the victims being the mother and elder sister of P.W.7 the incident as described by the witness is bound to have left an indelible impression on his mind which find manifestation in the clear deposition given before the Court. In fact, the victims being the mother and elder sister of P.W.7 the incident as described by the witness is bound to have left an indelible impression on his mind which find manifestation in the clear deposition given before the Court. Such deposition having been fully corroborated by the evidence of P.W.8 on one hand and by the evidence of P.Ws.4 and 5 on the other, we have no hesitation, whatsoever, in accepting the evidence of P.W.7. If the evidence of the above prosecution witnesses are to be accepted, which we are inclined to do, the Court must hold the accused/Appellant to be responsible for commission of the crime. 12. Accordingly, we are of the view that the conviction recorded and sentence imposed on the accused/Appellant is required to be maintained. We, therefore, dismiss the appeal and affirm the judgment and order dated 05.8.2003 passed by the 1st Addl. Sessions Judge (Adhoc), Sibsagar, in Sessions Case No. 42 (S-S) 2002. 13. Send down the LCR.