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2010 DIGILAW 123 (GAU)

Dilip Gowala @ Thunku Goala v. State of Assam

2010-02-18

BROJENDRA PRASAD KATAKEY, RANJAN GOGOI

body2010
JUDGMENT Ranjan Gogoi, J. 1. This appeal is directed against the judgment and order dated 15.9.2004 passed by the learned 1st Addl. Sessions Judge (Ad hoc), Sibsagar in Sessions Case No. 34(S-C)/03. By the aforesaid judgment and order, the accused/appellant has been convicted under Section 302, IPC and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs. 5,000, in default, to suffer R.I. for six months more. Aggrieved, the accused/appellant, who is in jail, has instituted the present appeal. 2. We have heard Mrs. M.B. Baruah, learned amicus curiae appointed by the court and Mr. K.A. Mazumdar, learned Public Prosecutor, Assam. 3. The short case of the prosecution is that PW4, Dina Bakti had lodged a FIR in the Abhaypur Police Out Post at about 12.15 p.m. of 29.9.2002 stating that on the previous day, i.e., 28.9.2002, at about 8 p.m., the accused/appellant had a fight with the brother of the first informant, one Akon Bakti and had caused serious injuries to his brother with a 'dao'. On the basis of the aforesaid FIR received in the Police Out Post, GD Entry No. 428 was made and the FIR was sent to Sonari Police Station for registration of a case. Accordingly, Sonari P.S. Case No. 151/02 under Section 325, IPC was registered. The injured Akon Bakti having succumbed to his injuries in the Assam Medical College and Hospital at Dibrugarh on 1.10.2002, with due permission from the court, the case was altered to one under Section 302, IPC. 4. In the course of investigation of the case, the Investigating Officer apart from recording the statements of the persons who claimed to be acquainted with the offence alleged against the accused/appellant, had conducted inquest on the dead body of Akon Bakti and had sent the same for post mortem examination. On receipt of the report of the post mortem examination and after completion of the investigation, charge sheet was submitted against the accused/appellant under Section 302, IPC. The offence alleged being exclusively triable by the Court of Sessions, the learned Judicial Magistrate, 1st Class, Charaideo by order dated 2.4.2003 committed the case for trial to the Court of Sessions at Sibsagar. In the trial court, charge under Section 302, IPC was framed against the accused/appellant to which he pleaded not guilty and claimed to be tried. The offence alleged being exclusively triable by the Court of Sessions, the learned Judicial Magistrate, 1st Class, Charaideo by order dated 2.4.2003 committed the case for trial to the Court of Sessions at Sibsagar. In the trial court, charge under Section 302, IPC was framed against the accused/appellant to which he pleaded not guilty and claimed to be tried. In the course of trial, the prosecution examined nine witnesses in support of its case including the doctor who had performed the post mortem and the Investigating Officer of the case. The statement of the accused/appellant was recorded under Section 313, Cr.PC. No defence evidence was led. At the conclusion of trial, the accused/appellant has been convicted and sentenced as aforesaid giving rise to the present appeal. 5. Of the nine witnesses examined in the case, it will be necessary to notice the evidence tendered by P Ws 1, 2 and 3 as well as the evidence tendered by PW8, the Investigating Officer of the case and PW9, the doctor who had performed the post mortem examination. The remaining witnesses, i.e., P Ws 4, 5 and 6 have deposed with regard to the occurrence on the basis of what they were informed by other persons whereas PW7 is the police officer who had conducted the inquest and had sent the dead body for post mortem examination. 6. PW1, Habibulla Khan, in his deposition, had stated that he is the Nayak of the Village Defence Party and that at about 10 p.m. of the day of occurrence PW2, Babulal Bakti came to his house and informed him that somebody had cut Akon. According to PW1, he immediately went to the place of occurrence, i.e., the house of the accused/appellant and saw blood stains on the ground at the backside of the house. According to this witness, he noticed a fire burning in the cowshed of the house of the accused/appellant and the wife of the deceased comforting the deceased. PW1 has also deposed that he saw cut injuries in Akon's nose, left knee and the back of his head. Thereafter, according to PW1, he had arranged a 'Thella' to take the injured Akon to the Abhaypur Police Out Post. PW1 has specifically deposed that he was informed by the deceased that it is the accused/appellant who had inflicted the cut injuries on the deceased. 7. Thereafter, according to PW1, he had arranged a 'Thella' to take the injured Akon to the Abhaypur Police Out Post. PW1 has specifically deposed that he was informed by the deceased that it is the accused/appellant who had inflicted the cut injuries on the deceased. 7. PW2, Babulal Bakti has been declared hostile by the prosecution. According to PW2, at the relevant point of time he was a member of the Village Defence Party (VDP). PW2 has deposed that on the day of occurrence while he was at home the VDP President, Sahjahan Ali had called him to his house and had informed him of the incident. According to this witness, he went to the house of the accused/appellant along with PW1 and found the deceased in an injured state lying in the courtyard of the house of the accused/appellant. PW2 has also deposed that he found the wife of the deceased comforting the deceased from a fire that was ignited near the place where the injured was lying. This witness has also deposed that they had arranged a Thella' (handcart) and while they were going to the hospital they came across a police party from the Abhaypur Police Out Post. PW2 was confronted with the statement made by him before the Investigating Officer to the effect that the deceased had informed him that the accused/appellant invited the deceased to his house, made him drink alcohol and, thereafter, inflicted cut injuries on his head and legs inside the house. The said statement made by PW2 before the Investigating Officer was proved by specifically examining the Investigating Officer, PW8 on the said issue. 8. PW3, Smt. Sabitri Bakti is the wife of the deceased. This witness has deposed that on the date of occurrence at about 8 p.m. while she and her husband (since deceased) were at home, the accused/appellant had called her husband over to his house. After half and hour, according to PW3, hearing screams of her husband coming from the direction of the house of the accused/appellant, she ran to the house of the accused/appellant. PW3 has further deposed that when the accused/appellant saw Her he rushed at her with a 'dao' in his hand. After half and hour, according to PW3, hearing screams of her husband coming from the direction of the house of the accused/appellant, she ran to the house of the accused/appellant. PW3 has further deposed that when the accused/appellant saw Her he rushed at her with a 'dao' in his hand. Consequently, PW3 ran away from the house of the accused/appellant and informed the VDP President, Sahjahan about the incident, where after, she reported the same to one Nitai Karmakar by going to his house. Thereafter, according to PW3, she informed Habibulla (PW1) and Babulal (PW2) about the occurrence and went to the house of the accused/appellant once again. There she lit a fire to comport her injured husband, at which point of time, Habibulla (PW1) and Babulal (PW2) reached the place. In cross-examination, this witness has specifically deposed that she had noticed smell of alcohol from her husband's mouth and that at the time of leaving home her husband had not consumed alcohol. PW3 has also specifically deposed that her husband had informed her that the accused/appellant and his wife had hacked him with a 'dao'. 9. The evidence of P Ws 4, 5, 6 and 7 not being very relevant, as already stated, the core of the evidence tendered by PW8, the Investigating Officer of the case may now be noticed. PW8, Naren Dhekial Phukan, the Investigating Officer has proved the statement of the deceased recorded by him marked as Exhibit-3 in the case. In the Exhibit-3 document, it has been recorded that at about 8 p.m. of the day of occurrence the accused/appellant Dilip had called Akon to his house and while inside the house had caused grievous injuries to Akon by cutting him with a 'dao' in the face and in both legs, where after, the accused/appellant fled from the place of occurrence. PW8, in his deposition, has also proved the statements made by P Ws 2 and 6 to the effect that they were informed by the deceased that it is the accused/appellant who had caused injuries to him with a 'dao' which statements, however, were denied by the aforesaid two witnesses, on account of which both of them were declared hostile by the prosecution. 10. PW9, Dr. Rupak Kr. Gogoi had performed the post mortem on the dead body of the deceased Akan Bakti on 2.10.2002 in the Assam Medical College and Hospital. 10. PW9, Dr. Rupak Kr. Gogoi had performed the post mortem on the dead body of the deceased Akan Bakti on 2.10.2002 in the Assam Medical College and Hospital. The findings including the opinion as to the cause of death, as recorded in the post mortem report which has been proved as Exhibit-8, are as follows: Wounds: 1. One incised wound measuring 5 cm x 2 cm x muscle deep on lateral of the right leg, 7 cm above the ankle joint which was found with stitches. 2. One incised wound measuring 6 cm x 2 cm which incised the pattela partially directed downward and left which was found with stitches. 3. One incised wound measuring 2 cm x 1 cm x muscle deep on palmer surface of middle phallynx of left ring finger. 4. One horizontally placed incised wound measuring 4 cm x 1 cm incised the nosal bone on middle part of the nose which was found with stitches. 5. One incised wound measuring 3 cm x 1 cm x muscle deep on the right eye brow; which was found with stitches. 6. One incised wound measuring 4 cm x 1 cm x muscle deep on right forehead one cm above the injury No. 5 which was found with stitches. 7. One vertically placed incised wound measuring 5 cm x 1 cm x muscle deep on middle of the back of the chest 18 cm below 7 cervical spine. (2) Cranium, and spinal canal Scalp contused on left temporo parietal and occipital area. Membrane - Sub-dural haemorrhage present on whole cerebral hemisphere. Brain - Brain contused. (3) Thorax Walls as described in the heading of external appearance Thoracic organ healthy (4) Abdomen - All organs were found healthy Organ of generation - Healthy Opinion - In my opinion the cause of death of the deceased is due to coma resulting from the head injury sustained by the deceased. All the injuries sustained by the deceased were ante-mortem and caused by heavy sharp cutting weapon and homicidal in nature. Approx time of death 24 to 36 hours. Ext. 8 is the post mortem examination report. Ext. 8(1) is my signature. All the injuries sustained by the deceased are cumulatively sufficient to cause the death of a person in the ordinary course of nature and the head injures sustained by the deceased was independently sufficient to cause his death. 11. Approx time of death 24 to 36 hours. Ext. 8 is the post mortem examination report. Ext. 8(1) is my signature. All the injuries sustained by the deceased are cumulatively sufficient to cause the death of a person in the ordinary course of nature and the head injures sustained by the deceased was independently sufficient to cause his death. 11. From the above narration of the evidence tendered by the prosecution witnesses, it transpires that the prosecution case has boon sought to be built up on the basis of the evidence tendered by P Ws 1 and 3. PW1 is an independent witness and a member of the VDP. He has specifically deposed with regard to the injuries sustained by the deceased and the fact that the deceased was found lying in the courtyard of the house of the accused/appellant Dilip. PW1 has also deposed that he was informed by the deceased that it is the accused/appellant who had caused the injuries on him. Similarly, PW3, who is the wife of the deceased, has clearly deposed that on the date of the occurrence the accused/appellant had invited the deceased to his house and after sometime she had heard screams of her husband coming from the direction of the house of the accused/appellant. PW3 has further deposed that when she reached the house of the accused/appellant, the accused/appellant had also charged at her with a 'dao'. PW3 has further deposed that she was specifically informed by her husband that it is the accused/appellant and his wife who had caused the injuries on him with a 'dao'. 12. The learned amicus curiae has pointed out certain contradictions in the evidence of PW1 with reference to the previous statement made by the said witness before the Investigating Officer which have been duly proved by the evidence of the Investigating Officer. The learned amicus curiae has pointed out that a doubt would arise with regard to the veracity of the evidence tendered by PW1. In so far as PW3 is concerned, the learned amicus curiae has drawn the attention of the court to the sketch map prepared by the Investigating Officer (Exhibit-6) and the oral evidence tendered by PW6 to point out that the house of PW3 was at a considerable distance from the house of the accused/appellant. In so far as PW3 is concerned, the learned amicus curiae has drawn the attention of the court to the sketch map prepared by the Investigating Officer (Exhibit-6) and the oral evidence tendered by PW6 to point out that the house of PW3 was at a considerable distance from the house of the accused/appellant. In such a situation, according to the learned amicus curiae, serious doubt arises as to the version unfolded by PW3 that she had gone to the house of the accused/appellant on hearing screams of her husband coming from the direction of the house of the accused/appellant. 13. We have minutely examined the evidence of PW1 and the contradictions in his evidence with regard to the previous statement made by him to the Investigating Officer. While it is correct that there are some contradictions, in our considered view, the same relate to the person(s) who had informed PW1 of the incident and, therefore, the said contradictions notwithstanding, the core of the evidence tendered by PW 1, cannot be dis-believed. Insofar as PW3 is concerned, while the sketch map (Exhibit-6) would show that there is some distance between the houses of the accused/appellant and the deceased where PW3 was staying, there is no material on record to come to the conclusion that the distance between the two houses would eliminate the possibility of PW3 hearing the screams of her husband coming from the house of the accused/appellant. That apart, the presence of PW3 in the house of the accused/appellant comforting her injured husband from the fire that was lit is corroborated by the evidence of PW1 as well as the hostile witness PW2, both of whom have clearly and categorically stated that when they arrived at the house of the accused/appellant, PW3 was found present there comforting her husband. It is, therefore, our considered view that notwithstanding what has been pointed by the learned amicus curiae, there is no fundamental flaw in the evidence of PW1 and 3 which would incline us to dis-believe the aforesaid two witnesses. 14. From the evidence of P Ws 1 and 3, it appears that the deceased had informed both the witnesses that it is the accused/appellant who had inflicted injuries on him. That apart, from Exhibit-3 proved by PW8 the above fact also clearly transpires. The accused/appellant (sic) died subsequently. 14. From the evidence of P Ws 1 and 3, it appears that the deceased had informed both the witnesses that it is the accused/appellant who had inflicted injuries on him. That apart, from Exhibit-3 proved by PW8 the above fact also clearly transpires. The accused/appellant (sic) died subsequently. The statement made by the deceased, as deposed to by P Ws 1 and 3 that it is the accused/appellant who had inflicted injuries on him as well as the statement recorded in Exhibit-3, therefore, in our considered view, can be safely acted upon as dying declarations of the deceased which is admissible in evidence under Section 32 of the Evidence Act. An argument has been advanced by the learned amicus curiae that Exhibit-3 being a statement recorded by the police cannot be held to be admissible under Section 32 of the Evidence Act. The argument runs contrary to several decisions of the Apex Court holding that even a FIR lodged by a deceased or the statement of a deceased recorded under Section 161, Cr.PC can be treated as a dying declaration. There is nothing to impeach the oral evidence of PW1 and 3 with regard to the dying declaration made by the deceased before them as well as the statement recorded in Exhibit-3. We, therefore, are of the opinion that the accused/appellant can be held liable for the offence of murder under Section 302, IPC. We, therefore, find no infirmity in the order passed by the learned trial court. 15. Accordingly, we dismiss the appeal and affirm the conviction and sentence recorded by the learned trial court. 16. We acknowledge the assistance rendered by Mrs. M.B. Baruah, learned amicus curiae and direct the State of Assam to pay her two days hearing fee which is quantified at Rs. 5,000. Appeal dismissed