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2010 DIGILAW 329 (GAU)

Amar Kalita v. State of Assam

2010-05-07

AMITAVA ROY, H.BARUAH

body2010
Amitava Roy, J.;- The judgment and order dated 05.08.2008 passed by the Addl. District & Sessions Judge (FTC), Kamrup, Guwahati in Sessions Case No. 55(K)/2005 has been appealed against from jail. Thereby, the appellant has been convicted under Sections 302/323 of the Indian Penal Code (for short hereafter referred to as the Code) and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 2000/-, in default to undergo rigorous imprisonment for further six(6) months for his conviction under Section 302 of the Code and rigorous imprisonment for one (1) year for his conviction under Section 323 of the IPC. Both the sentences have been ordered to run concurrently. 2. We have heard Mr. J.M. Choudhury, Senior Advocate assisted by Mr. B.M. Choudhury, for the accused-appellant and Mr. D. Das, learned Public Prosecutor, Assam. 3. Chaygaon Police Case No. 517201, under Sections 447/302/326 was registered on the FIR dated 04.05.2001, lodged by one Shri Nagen Kalita with the Officer-in-charge, Chaygaon Police Station. It was alleged thereby that at about 9 p.m., the previous night, the accused-appellant had trespassed upon his (informant's) house and killed his younger brother Shri Uttam Kalita by stabbing him with a sharp weapon. The accused appellant was also charged, thereby, for causing severe injury to the informant's another brother Shri Shankar Kalita by stabbing him with a sharp weapon. After the investigation, the police submitted charge sheet against the appellant-accused and one Shri Babul Kalita. The case being triable exclusively by the Court of Sessions, it was, accordingly, committed to the learned trial Court. Charge was framed against both the persons and they were put up for trial under Sections 302/323/34 of the Indian Penal Code. The charged persons having denied the imputation brought against them, trial proceeded. The prosecution examined 13 witnesses, including the Doctor, who had performed the post mortem examination as well as the Investigating Officer. The accused persons did not adduce any evidence. Their statements under Section 313 of the Code of Criminal Procedure, 1973 were, however, recorded. On the conclusion of the trial, whereas, Shri Babul Kalita was acquitted, the appellant-accused stood convicted and sentenced as above. 4. Mr. Choudhury, has strenuously argued that the prosecution case for various legal infirmities is not at all trustworthy and, therefore, the impugned judgment and order, if allowed to stand would result in denial of justice. On the conclusion of the trial, whereas, Shri Babul Kalita was acquitted, the appellant-accused stood convicted and sentenced as above. 4. Mr. Choudhury, has strenuously argued that the prosecution case for various legal infirmities is not at all trustworthy and, therefore, the impugned judgment and order, if allowed to stand would result in denial of justice. According to him, not only the so-called dying declaration of the deceased represented to have been made before the PWs 1,2 & 9 is unworthy of any credence, the omission to mention about the same in the FIR demolishes the substratum of the prosecution case. The learned senior counsel has further submitted that the prosecution witnesses have contradicted themselves with regard to the place of the occurrence vis-a­vis the FIR and that many witnesses said to have been present at the time of the last utterances of the deceased implicating the accused-appellant to be the assailant, had not been examined without any explanation whatsoever. As admittedly, there is no eye witness to the assault on the deceased and in view of the darkness prevailing, the identity of the accused-appellant as the assailant of Shankar Kalita has also not been established, the learned Court below ought to have acquitted the accused-appellant, he contended. The learned senior counsel has contended that as the so-called dying declaration does not inspire confidence, the same without any corroboration ought not to be acted upon as the sole basis of conviction. In the same vein, Mr. Choudhury pleaded that the evidence regarding facts leading to the discovery of the weapon of assault in isolation does not establish the complicity of the accused-appellant and, therefore, on a totality of the above considerations, the impugned judgment and order is liable to be interfered with. The learned senior counsel has maintained that having regard to the nature of the injuries sustained by the deceased, he could by no means be in a state to speak and, therefore, the plea of dying declaration offered by the prosecution is wholly unbelievable and is thus liable to be discarded. 5. Refuting the above, the learned Public Prosecutor has contended that as a FIR is not required to be an encyclopedia of all facts bearing on an occurrence, demonstrating a criminal act and thus the omission to mention about the dying declaration of the deceased therein, is wholly inconsequential. 5. Refuting the above, the learned Public Prosecutor has contended that as a FIR is not required to be an encyclopedia of all facts bearing on an occurrence, demonstrating a criminal act and thus the omission to mention about the dying declaration of the deceased therein, is wholly inconsequential. According to him, a conjoint reading of PWs 1, 2 & 9 affirmatively establishes the making of the dying declaration of the deceased as well as the authenticity thereof and, therefore, the conviction and sentence of the accused-appellant is sustainable in law and on facts. Mr. Das argued that in absence of any cross-examination of the medical witness by the defence, the plea of impossibility of the utterances by the deceased in view of his injured physical state is wholly untenable. 6. Abrief survey of the evidence on record is indispensable to enable us to appropriately appreciate the competing arguments. As noticed hereinabove, the FIR names the accused-appellant to be the assaulter of both Uttam Kalita (since deceased) and his brother, Shankar Kalita. PW 1, Sri Nagen Kalita is the informant. He proved the FIR vide Ext. 1 with his signature thereon as Ext. 1 (1). According to him, at 9.30 p.m. on the date of the occurrence he was at home. The deceased after having dinner with them went out of the house and returned running ten minutes thereafter and collapsed in the courtyard. When asked, he disclosed that the accused-appellant had assaulted him with a sharp weapon. The witness stated to have seen injuries in the neck of Uttam Kalita and as he raised hue and cry people gathered. While he was attending to the injured, Kamaleswar and Dihiram informed him that the accused-appellant had also assaulted his brother Shankar. As the witness ran out to the road, he found Shankar Kalita lying in an injured state at about 100 yards from his house. When enquired, Shankar Kalita disclosed that the accused-appellant had assaulted him. According to the witness, Shankar was then taken home and later to the Chaygaon Police Out Post. Meanwhile, the witness stated, that Uttam Kalita had died. He further testified that Shankar Kalita was taken to the hospital, where he was treated for a week. He also proved the inquest report Ext. 2 with his signature, Ext. 2(1). In cross-examination, he stated that during the above developments, he was sitting in the courtyard. Meanwhile, the witness stated, that Uttam Kalita had died. He further testified that Shankar Kalita was taken to the hospital, where he was treated for a week. He also proved the inquest report Ext. 2 with his signature, Ext. 2(1). In cross-examination, he stated that during the above developments, he was sitting in the courtyard. He conceded that there was no electricity in his house and that accordingly, there was darkness all around. He also admitted that the place where Shankar Kalita was lying was also dark. He stated that at the time when he asked Uttam Kalita as to who had assaulted him Kamaleswar, Dihiram and Bineswar Kalita were present. According to this witness for about 1V2 hours Uttam Kalita was in a state to talk. 7. PW 2, Bineswar Kalita, stated that at about 9.00 p.m. in the night of the occurrence, he having heard hue and cry from the house of Shankar Kalita, went there and found Uttam Kalita in a pool of blood. He having asked the injured, the latter disclosed to him that the accused appellant was the assailant. The witness also affirmed to have seen bleeding injury in the neck of Uttam Kalita. At that point of time, according to the witness, a person came and informed that Shankar Kalita also had been injured. According to him, while they arranged to send Shankar Kalita to the police station, Uttam Kalita died. He also deposed that when asked, Shankar Kalita told him that the accused-appellant had assaulted him. This witness also proved the inquest report Ext. 2 with his signature thereon, Ext. 2(1). In cross-examination, this witness stated that when asked, Uttam Kalita only had uttered the name of Amar, but did not add anything thereto. He also conceded of not having heard Shankar Kalita disclosing the name of his assailant. 8. PW 3, Bhadreswar Kalita, had reached the house of Uttam and Shankar Kalita after hearing the commotion arising out therefrom. He stated to have seen Uttam Kalita lying in the courtyard in an injured state. He stated that Dihiram and Kamaleswar told him that the accused-appellant had assaulted Shankar. In cross-examination, he testified that the family members did not enquire of Uttam Kalita in his presence as to who had assaulted him. 9. He stated to have seen Uttam Kalita lying in the courtyard in an injured state. He stated that Dihiram and Kamaleswar told him that the accused-appellant had assaulted Shankar. In cross-examination, he testified that the family members did not enquire of Uttam Kalita in his presence as to who had assaulted him. 9. PW 4, Shankar Kalita, the injured, stated that at about 9 p.m. on the date of the occurrence, while he was returning in a bicycle, the accused-appellant intercepted him near the house of Balen Kalita and attacked him with a "khukri". The witness stated that he sustained injury in his chest and fell down on the ground. He conceded that at that point of time there was none at the place of occurrence. He stated to have taken shelter in the house of Bineswar. He further deposed that Bineswar and other village people informed him that the accused-appellant had killed his elder brother, Uttam Kalita cutting his neck. This witness in cross-examination conceded that there was no electricity in front of his house and that at the time of the occurrence there was load shedding and, therefore, he could not identify the people due to darkness. 10. PW 5, Hiren Kalita, stated that at about 10/10.30 p.m. on the date of the occurrence he was asleep. Having been informed by Nabin Kalita that Uttam Kalita had been assaulted by the accused-appellant, he went to the house of the deceased and found him in an injured state lying smeared with blood in the courtyard. The witness stated to have seen injuries in his neck and not in a condition to speak. He proved the inquest report Ext. 2 with his signature as Ext. 2(4). 11. PW 6, Balen Kalita, stated that on the date of occurrence, while he was in his house he heard a sound from the side of the road and went out to find Shankar Kalita in an injured state. 12. PW 7, Nripen Kalita, in his evidence only referred to Ext. 3, the seizure list of the "khukri". Though, he admitted his signature thereon, he denied any knowledge of the contents of the said document. 13. The evidence of PW 8, Dipak Dakka is of no relevance. 14. 12. PW 7, Nripen Kalita, in his evidence only referred to Ext. 3, the seizure list of the "khukri". Though, he admitted his signature thereon, he denied any knowledge of the contents of the said document. 13. The evidence of PW 8, Dipak Dakka is of no relevance. 14. PW 9, Gauri Kalita, the father of the deceased affirmed that after having dinner in the night of the occurrence Uttam Kalita had gone out on the road. According to this witness, after about ten minutes he (Uttam Kalita) came back and informed that the accused-appellant had assaulted him. The witness also confirmed to have seen injuries in the neck of the injured. He testified that Uttam Kalita was kept in the courtyard, whereafter, a boy came and informed them that Shankar also had been assaulted by the accused-appellant. In cross-examination, he stated that many persons, including Bhadreswar and Bineswar were present in the courtyard when Uttam disclosed the name of the accused-appellant as his assailant. This witness admitted that there was no electricity and the place was plunged in darkness. While affirming that Uttam Kalita had been assaulted on the road outside his house, he denied the suggestion of not having disclosed to the police in course of the investigation about the revelation made by Uttam Kalita about the involvement of the accused-appellant. 15. PW 10, Sri D. Pathak, as the Investigating Officer, stated about the steps taken by him in the investigation. He deposed that the weapon of assault "khukri" was seized by him acting on a statement of the accused-appellant on the basis of the disclosure made to that effect by him, which he proved as Ext. 8. He also identified the seized khukri as Material Ext. 1. While conceding that the seized weapon had not been sent to the Forensic Science Laboratory, he proved with reference to the case diary that PW 9, Gauri Kalita had not told him that the deceased Uttam Kalita had disclosed that the accused-appellant had assaulted the deceased. 16. P W 11, Dr. T.K. Das, in course of his testimony proved the following injury:- "One cut injury in the middle part of left side of the neck, placed transversely of, size (7 cm x 4 cm x 4 cm deep) 4 cm below the angle of left side of mandible and 3 cm from the midline. 16. P W 11, Dr. T.K. Das, in course of his testimony proved the following injury:- "One cut injury in the middle part of left side of the neck, placed transversely of, size (7 cm x 4 cm x 4 cm deep) 4 cm below the angle of left side of mandible and 3 cm from the midline. The skin, muscles of the left side of neck, jungular veins, left carotid artery were cut transversely, clotted blood, adherent over the cut area. The magins of the wound is clear cut and well defined, adherent blood clots present over the wound margin and not washed by water." He opined that the death was due to hemorrhage and shock resulting from cut injury of neck, which was ante mortem and caused by heavy sharp cutting weapon and was homicidal in nature. The witness stated that the injuries were sufficient to cause death in the ordinary course of nature and was possible to be inflicted by a sharp cutting weapon like khukri. He proved the post mortem report as Ext. 9. 17. To start with, we do not feel persuaded to sustain the challenge to the credibility of the prosecution case for want of the reference of the dying declaration implicating the accused-appellant as the assailant of Uttam Kalita (since deceased) in the FIR. Not only, in our estimate in the facts and circumstances of the case, such a failing, if at all, per se does not demolish the prosecution case, the purpose of FIR being primarily to communicate the factum of commission of an offence with bare essentials attendant thereon, as available, if possible to identify, as well the victim and the offender, this contention, even otherwise lacks substance. The FIR in the case in hand was lodged by Sri Nagen Kalita, who, if the dying declaration is believed, was cognizant of the identity of the assailant and has, accordingly mentioned his name in clear terms. The contents of the FIR, satisfy the minimum requirements to be self-contained to apprise the investigating agency of the necessary facts pertaining to the crime, so as to enable it to initiate the probe. We are, therefore, disinclined to reject the prosecution on this plea. 18. The contents of the FIR, satisfy the minimum requirements to be self-contained to apprise the investigating agency of the necessary facts pertaining to the crime, so as to enable it to initiate the probe. We are, therefore, disinclined to reject the prosecution on this plea. 18. P W 1, Nagen Kalita, in his deposition has stated in clear terms that when asked, the injured Uttam Kalita, though in a dying state, had clearly implicated the accused-appellant to be his assailant with a sharp cutting weapon. In cross-examination this witness reiterated this version, stating additionally that at that point of time Kamaleswar, Pithiram, Bhadreswar, Bineswar amongst others were also present. He testified that Uttam Kalita was in a condition to talk for about 1V2 hours. 19. PW 2, Bineswar Kalita, in his examination in chief, reiterated that when asked, Uttam Kalita had disclosed to him that the accused-appellant had assaulted him. In cross-examination this witness further stated that the deceased had only uttered the name of the accused-appellant and did not say anything more. 20. PW 3, Bhadreswar Kalita before whom, according to the PW 1 the above disclosure was made, however, did not mention about such dying declaration. Though, others namely, Kamaleswar, Pithiram, Bhadreswar, Bineswar and Thanda Kalita (mother of the deceased), who though present at the relevant point of time, have not been examined by the prosecution, this omission, ipso facto, does not nullify the evidence of PWs 1 & 2 in this regard. The fact remains that these two witnesses have corroborated each other on the identification of the accused-appellant made by the deceased as his assailant as disclosed to them. The reply of PW 2, Bineswar Kalita, in his cross-examination ought not to be interpreted out of context. The testimony of PWs 1 & 2, according to us, inspires confidence and we hold that in the dying declaration made by the deceased, he had implicated the accused-appellant Sri Amar Kalita to be his assailant inflicting injuries with a sharp cutting weapon, to which he, eventually, succumbed. The evidence on record does not suggest, either that the accused-appellant has been falsely implicated or that the dying declaration had been engineered subsequent to the FIR to embroil him in a false criminal charge of murder. 21. The evidence on record does not suggest, either that the accused-appellant has been falsely implicated or that the dying declaration had been engineered subsequent to the FIR to embroil him in a false criminal charge of murder. 21. Having regard to the omission on the part of the PW 9, Gauri Kalita to disclose to the police at the earliest point of time about the dying declaration made by the deceased, we do not consider it safe to rely on his evidence in this regard. This is more so, as such an omission has been proved by the Investigating Officer, PW 10, with reference to his case diary. This omission, however, does not in our estimate annihilate the testimony of PWs 1 & 2 to this effect. The evidence on oath of the IO that the weapon of assault had been located and seized on being led by the accused-appellant when read with his statement (Ext. 8) is of considerable corroborative significance. The evidence on the medical witness as well as the injury detected on the dead body fits with the dying declaration made by the deceased and the weapon of assault seized and identified. The ocular evidence of the prosecution witnesses qua the injury seen on the injured at his death, is endorsed as well by the post mortem report. 22. Though, the medical opinion as to the capability of Uttam Kalita to speak with the fatal injury sustained had not been elicited from PW 11, in face of the unrebutted testimony of PW 1 that he could do so for 1V 2 hours, we are not inclined to act on any inference to the contrary. The statement of the PW 5, who had arrived at the scene after about 1 /2 hours of the occurrence, to the effect that the injured was then not in a state to speak, thus does not tilt the balance in favour of the defence. We, therefore, sustain the conviction of the accused-appellant under Section 302 of the Code. 23. So far as the incident of assault on Shankar is concerned, we are of the view, on scrutiny of his evidence that the identification of the accused-appellant in this regard is not beyond all reasonable doubt. We, therefore, sustain the conviction of the accused-appellant under Section 302 of the Code. 23. So far as the incident of assault on Shankar is concerned, we are of the view, on scrutiny of his evidence that the identification of the accused-appellant in this regard is not beyond all reasonable doubt. Not only, has this witness conceded that at the time of the occurrence there was darkness because of load shedding, he admitted his failure to recognize the people around. There is no other witness to this incident. The accused-appellant is, therefore, entitled to the benefit of doubt vis-a-vis the charge under Section 323 of the IPC. 24. Having regard to the vital organ of the body mercilessly mutilated by a sharp cutting weapon leaving no scope whatsoever for the injured to survive, we are of the unhesitant opinion, in absence of any mitigating circumstance, that the sentence awarded by the learned trial Court ought to be sustained. In the result, the appeal is partially allowed. The conviction of the appellant under Section 302 of the IPC and the sentence awarded therefor, are upheld. He appreciation for the assistance rendered by is acquitted of the charge under Section 323 the learned Amicus Curiae in this appeal and of the IPC and his sentence therefor, is also hereby order payment of Rs. 3,500/- (Rupees set aside. three thousand five hundred only), as his 25. Before we part, we record our appreciation for the assistance rendered by the learned Amicus Curiae in this appeal and hereby order payment of Rs. 3,500/- (Rupees three thousand five hundred only), as his professional fee to be disbursed forthwith.