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2010 DIGILAW 33 (GAU)

Nagendra Sarmah v. State of Assam

2010-01-22

ASHOK POTSANGBAM, J.CHELAMESWAR

body2010
JUDGMENT Asok Potsangbam, J. 1. The appeal, against the impugned judgment, is preferred from jail by the sole Appellant who has been found guilty of the offence under Section 302 IPC by the learned Sessions Judge, Dhemaji, Assam, in his judgment dated 10.2.2003 passed in Sessions Case No. 9 (DH)/2001 and sentenced him to life imprisonment with a fine of Rs. 1,000/- (Rupees one thousand), in default thereof, the Appellant was to suffer R.I. for one month. 2. We have heard Ms. B. Gogoi, learned Amicus Curiae, appearing for the Appellant and Mr. Z. Kamar, learned Public Prosecutor, Assam, appearing for the State. 3. The prosecution story, in brief, is that on 24.7.1996 at about 12.00 noon, the deceased Trilochan Sarmah and one Gogoi came on a bicycle at the house of the deceased and while they were having tea and chatting, they came to know that the said bicycle, which was kept in a cow shed, was taken by the accused in his house. The deceased went inside the house of the accused to fetch the bicycle and he was assaulted therein with a poting (a sharp weapon for hunting eels) by the accused who pushed out the deceased from his house. At that point of time, the deceased was crying as "Gogoi, I am dying". The deceased was immediately taken to Dr. Medhi of Silapathar by his wife accompanied by the said Gogoi and some others, but the deceased succumbed to his injury. An FIR was lodged in connection with the incident by a brother of the deceased, who is also the brother of the accused and the Silapathar P.S. Case No. 141/1996 under Section 302 IPC was registered by the O.C. of Silapathar Police Station. Thereafter, the police investigated the case. Inquest was held, postmortem was performed, the weapon of offence (one poting) was seized and the evidence of the witnesses were recorded. 4. After completion of investigation, the I.O. submitted charge sheet before the Court of the Additional Chief Judicial Magistrate, Dhemaji, who committed the case on 2.2.2001 to the Court of the learned Sessions Judge, Dhemaji, for trial as the offence was exclusively triable by a Court of Sessions. The learned Sessions Judge framed charges against the accused Appellant under Section302 IPC and on pleading not guilty of the charge, the accused was directed to be tried on the aforesaid charge. The learned Sessions Judge framed charges against the accused Appellant under Section302 IPC and on pleading not guilty of the charge, the accused was directed to be tried on the aforesaid charge. At the end of the trial, after scrutiny of the evidence on record, the learned Sessions Judge came to the conclusion that the Appellant was guilty of the offence punishable under Section 302 IPC and sentenced him to life imprisonment with fine. 5. We will now examine the evidence on record and the reasoning adopted by the learned Sessions Judge, Dhemaji, to find out whether the conviction and sentence imposed by and in the impugned judgment dated 25.2.2003 passed in Sessions Case No. 9 (DH) 2001 under Section 302 IPC, can be sustained or not. 6. Prosecution has cited and examined 10(ten) witnesses including the I.O. and M.O. No. D.W. was examined by the convict Appellant and the plea taken by the Appellant in his examination under Section 313 Code of Criminal Procedure was of total denial theory. However, it was stated by the Appellant in the aforesaid examination under Section 313 Code of Criminal Procedure that the Appellant and deceased being Brahmin, they were not supposed to take wine but the deceased was taking wine and as such the Appellant asked the wife of the deceased not to allow her husband to take wine and on account of this, a false case was filed against the Appellant. But no evidence was adduced by the defence to substantiate the aforesaid plea. 7. Admittedly, the Appellant is the younger brother of the deceased. P.W. 1, P.W. 2, P.W. 3, P.W. 5 and P.W. 7 are all close relatives of the deceased as well as of the Appellant. P.W. Nos. 1 and 5 are wife and daughter, respectively, of the deceased and P.W. 2 who is the informant of the FIR, is the younger brother of the deceased and the Appellant. The P.W. No. 3 is the nephew of the deceased and the Appellant and P.W. 7 is the son of the Appellant. 8. The case of the prosecution mainly rests on the evidence of P.W. Nos. 1, 2, 3, 5 and 8. The P.W. No. 3 is the nephew of the deceased and the Appellant and P.W. 7 is the son of the Appellant. 8. The case of the prosecution mainly rests on the evidence of P.W. Nos. 1, 2, 3, 5 and 8. P.W. 1 who was present at the place of occurrence at the relevant point of time, stated that one Gogoi and her deceased husband came on a bicycle on the fateful day at about half past eleven in the morning and they were having tea and talking in the house of the deceased. At the relevant point of time, one of the sons of the Appellant informed that his father has taken the bicycle of Gogoi, inside the house of the Appellant, and the deceased went to the house of the accused to bring the bicycle. She saw the deceased being pushed out from the house of the Appellant with bleeding injury on his body and thereafter the deceased, who fell down on the veranda of the Appellant's house, was taken to his house which lay contiguous to the house of the Appellant and the deceased told P.W. 1 that he was hit with a poting by the Appellant. In the meantime, the complainant Pushpalal Sarmah, the P.W. 2 and Kamal Sarmah, the P.W. 3 also came and all of them took the deceased to Doctor Medhi at Silapathar but the deceased succumbed to his injury. The said Pushpalal Sarmah lodged an FIR to the police and thereafter the police came and arrested the accused from inside his house where he remained bolted form inside. Police also seized the weapon of offence i.e. poting. P.W. 1 clearly stated that at the time of occurrence, her youngest son, daughter (P.W. 5) and the guest Gogoi were present in the house of the deceased. In cross examination, P.W. 1 categorically stated that she saw her husband in an injured condition when the Appellant got him out of his house and deceased was capable of speaking when he was taken to his house by the witness and some others. The witnesses also stated that the Appellant was taken to Tezpur Mental Asylum, two years after the occurrence, but he was sent back as he was not insane. The witnesses also stated that the Appellant was taken to Tezpur Mental Asylum, two years after the occurrence, but he was sent back as he was not insane. What is fatal for the defence is the evidence of the P.W. 1, in cross-examination, that the deceased was capable of speaking when he was taken, in an injured condition, from the house of the Appellant to the house of the deceased. There was no cross-examination on the dying declaration made by the deceased to P.W. 1 that he was hit by the Appellant with a poting and as a result he sustained bleeding injury. 9. The statement of P.W. 1 that the deceased told her that he was assaulted by the Appellant with a poting is corroborated by the evidence of P.W. 2 who is the younger brother to both the deceased and the Appellant. It is in the evidence of the P.W. 2 that the deceased, when asked, told the witness that the Appellant assaulted him with a poting when he went to bring the bicycle from the house of the Appellant and this witness also deposed that he saw bleeding injury in the chest of the deceased and thereafter, the deceased was taken to Dr. Medhi's Nursing Home by him, P.W. 1 and some others and the deceased succumbed to his injury. The P.W. 2 has proved the Ejahar as Ext. 1 and his signature as Ext. 1(1). He was also a witness to the inquest report. Ext. 2 and Ext 2(1) was proved as his signature. In the cross-examination, P.W. 2 testified that what had been stated in the Ejahar (Ext. 1), is what he had learnt from P.W. 1 as well from the deceased before his death. 10. The P.W. 3 is the nephew of the deceased, the Appellant and the P.W. 2 and he had also corroborated the evidence of P.Ws. 1 and 2. It is in the evidence the P.W. 3 that he saw bleeding injury on the abdomen of the deceased and when he asked the deceased as to who" assaulted him, the deceased told him that the Appellant hit him with a poting. The P.W. 5 is the daughter of the deceased, who was present along with her mother at the house of the deceased when deceased was pushed out by the Appellant from his house after hitting with a poting. The P.W. 5 is the daughter of the deceased, who was present along with her mother at the house of the deceased when deceased was pushed out by the Appellant from his house after hitting with a poting. She saw her father with injury in his chest and in the cross-examination she denied the suggestion that her father was not in a position to speak at the relevant point of time. It is to be noted herein again that the house of the Appellant and that of the deceased is adjacent to each other with a common gateway and therefore, anyone can see easily any happening on either side of the two houses. 11. The P.W. 7 is the son of the Appellant, who is a seizure witness to Ext. 3, i.e., the seizure list of the weapon of offence (poting) and he proved Ext. 3(1) as his signature. P.W. No. 7 deposed that his father, the Appellant, was a mental patient at the relevant point of time. However, he stated that he was one of the persons, who had taken the deceased to doctor at Silapathar where the deceased succumbed to his injury. This witness further stated that the deceased informed him that a poting which was kept near a door had fallen and hit him and as a result, he sustained injury in the abdomen. P.W. No. 7 being the son of the Appellant cannot be expected to give evidence implicating his father with the death of the deceased. The P.W. 8 is a person, who came to the house of the deceased on the fateful day, on a bicycle and he heard the deceased crying from the house of the Appellant, as "Gogoi, I am dying". He also testified that deceased was hit by some one inside the house of the Appellant but he did not know, who hurt him. 12. The P.W. 9 is the Medical Officer of the Dhemaji Civil Hospital, who performed the postmortem examination on the body of the deceased on 25.7.1996 and found the following injuries: 1) A rounded injury mark over the epigastrium area slightly right to the mid-line. Size 5 cm in diameter minimal blood of ante-mortem seen. It is not pierced the internal layer of the abdomen or epigastrium wall. Size 5 cm in diameter minimal blood of ante-mortem seen. It is not pierced the internal layer of the abdomen or epigastrium wall. 2) A big area of bruise over the whole lower abdomen below umbilicus on both side of the right and left iliac fossa seen. 3) Another big bruise mark around about 20 cm over the back on right and left renal angle is present. 4) There is a cut injury over the left kidney, size 2 cm oblique. However, the Medical Officer opined that the death was caused by a blunt weapon. The P.W. 10 is the I.O. of the case, who had examined the witnesses and proved the Exts. 1, 2 and 3 and the signatures thereon and he also proved the signature of his succeeding I.e., i.e. one Atul Barman. It is to be noted that inquest report clearly indicates that there was a cut injury, which is about half an inch in size below the chest and above the naval with clotted blood. 13. Defence has not denied the death of the deceased on 24.7.1996 due to injury sustained-by him. Evidence of P.Ws. 1, 5 and 8 clearly established that the deceased went to the house of the Appellant to fetch the bicycle belonging to the P.W. 8, which was taken by the Appellant in his house while the deceased and P.W. 8 were chatting and having tea at the house of the deceased which lay adjacent to the house of the Appellant. Further evidence of aforesaid P.Ws. 1, 5 and 8 is that the deceased was seen being pushed out by the accused from his house and he fell on the veranda by crying that "Gogoi, I am dying" and all the three (3) witnesses saw a bleeding injury on the chest of the deceased. It is also in the evidence of P.Ws. 1 and 5 that the deceased was capable of speaking when he was taken from the veranda of the Appellant to the house of the deceased. The aforesaid evidence of the P.Ws. 1 and 5 remained unshaken in the cross-examination and their evidence would go to prove that the deceased received bleeding injury in his chest when he was pushed out by the Appellant from his house. Next question is who could have caused the bleeding injury on the body of the deceased which led to his death. 1 and 5 remained unshaken in the cross-examination and their evidence would go to prove that the deceased received bleeding injury in his chest when he was pushed out by the Appellant from his house. Next question is who could have caused the bleeding injury on the body of the deceased which led to his death. Immediately after the deceased was taken to his house, he told his wife that he was hit by the Appellant with a poting after giving fist blows and as such he received a bleeding injury on his body. This statement was made in the presence of P.Ws. 1, 2, 3 and 5. Even assuming that the evidence of P.Ws. 1 and 5 are to be disbelieved or to be discarded on the ground that they are the wife and daughter of the deceased, the evidence of P.W. 2 and 3 cannot be ignored for any reason. P.W. 2 is the brother of the deceased as well as of the Appellant and P.W. 3 is also the nephew of the deceased as well as of the Appellant and they are part of the Sarmah family. There is no reason why their evidence should be disbelieved inasmuch as there is no evidence even to suggest that they have any personal grudge or vested interest to depose against the Appellant P.Ws. 2 and P.W. 3 were the two witnesses who rushed to the house of the deceased after learning the commotion and they were informed by the deceased that the deceased was hit by the Appellant with a poting and these two witnesses saw bleeding injury on the chest of the deceased. There was no cross examination, at all, of the Medical Officer as to whether the deceased was capable of making any statement after the injury was inflicted upon him and as such the evidence of P.Ws. 1 and 5 that the deceased was in a position to speak even after he was hit by a poting cannot be rejected. Therefore, the oral dying declaration made by the deceased that he was hit by the Appellant with a poting in the house of the Appellant and as a result he sustained bleeding injury on his chest, had been rightly believed and accepted by the trial Court and we hereby endorse the same. 14. Mr. Therefore, the oral dying declaration made by the deceased that he was hit by the Appellant with a poting in the house of the Appellant and as a result he sustained bleeding injury on his chest, had been rightly believed and accepted by the trial Court and we hereby endorse the same. 14. Mr. Z. Kamar, learned P.P. relies upon a case of Ganeswar Das v. State of Assam reported in (2005) 13 SCC 387 where the deceased became un-conscious immediately after uttering a few words that the accused-Appellant "cut him". This decimation was rightly accepted by the trial Court and also by this Court with subsequent endorsement of the Apex Court. In the circumstances, the fact that the deceased went to the house of the accused-Appellant and was pushed out with a bleeding injury and thereafter, he was taken to his house where he told the P.Ws. 1, 2, 3 and 5 that he was hit by the accused-Appellant with a poting was rightly believed and accepted by the learned Sessions Judge. 15. We have perused the evidence of witnesses and also the impugned judgment and order dated 25.2.2003. The medical opinion of the doctor's that the injury was caused by a blunt weapon whereas all the witnesses had stated that the deceased was injured by a poting, leaves a question to be determined between the medical evidence and the evidence of the witnesses. In this regard, the inquest report exhibit-2 is pertinent. In the inquest report, exhibit-2, I.O. had noticed a cut mark below the chest and above the naval and relying upon a decision of Jodhakhoda Rabria v. State of Gujarat reported in (1992) Cri. LJ. 3299, the learned Sessions Judge held that when there was contradiction between the testimony of eye witness and laboratory report, positive eye witness account would not be discarded if it was found otherwise reliable. In the instant case, the witnesses, though no eye witnesses to the actual assault, came to know immediately after the incident, that the Appellant caused the cut injury to the deceased and these evidences are found reliable and trustworthy. There is nothing on record to show that there is any deep seated enmity between the witnesses and the accused and they are all close relatives and as such the learned Sessions Judge has rightly accepted the evidence of the witnesses. 16. There is nothing on record to show that there is any deep seated enmity between the witnesses and the accused and they are all close relatives and as such the learned Sessions Judge has rightly accepted the evidence of the witnesses. 16. In the circumstances, we are of the considered opinion that the prosecution have been able to bring home the charge of the offence under Section 302 IPC and there are sufficient evidence to justify the conclusion of the learned Sessions Judge that the Appellant was responsible for causing the death of the deceased and as such the conviction and the sentence imposed by the learned Sessions Judge, Dhemaji, on the Appellant, need no interference. 17. In the result, the appeal fails and accordingly, the same is dismissed. 18. It is ordered that learned Amicus Curie shall be paid a sum of Rs. 2,500/- only as her fees. Send down the LCR. Appeal dismissed.