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2010 DIGILAW 40 (GAU)

Sua Gowala v. State of Assam

2010-01-25

AMITAVA ROY, H.BARUAH

body2010
JUDGMENT Amitava Roy, J. 1. This appeal from jail is directed against the judgment and order dated 29.9.2003 passed by the learned Additional Sessions Judge, Jorhat, in Sessions Case No. 102(J-J)/2000 convicting the appellant accused under Section 302 of the Indian Penal Code ('the Code') and sentencing him to suffer rigorous imprisonment for life and also to pay a fine of Rs. 2,000 in default to undergo rigorous imprisonment for another three months. 2. Following the conclusion of the arguments and the decision contemplated by this Court, by order dated 25.1.2010 the appeal was partly allowed by converting the conviction of the appellant accused to one under Section 304, Part-II of the Code and limiting his corporal punishment to the period already undergone by him on that date. The sentence of fine was also set aside. This reasoned judgment follows in terms of the said order. 3. We have heard Ms. A. Devi, learned amicus curiae and Mr. K. Mazumdar, learned Public Prosecutor, Assam. 4. The process was set in motion by an FIR dated 3.2.2000 lodged by Shri Dharam Gowala with the Office-in-Charge, Mariani Police Station, alleging that the appellant on the very same date at about 9 P.M. had murdered his (informant) uncle, Shri Namal Gowala by hacking him with a dao on the road in front of the residence of Shri Bijoy Tussa at Katanibari Borline T.E. The police thereon registered Mariani Police Station Case No. 3/2000 under Section 302, of the Code and initiated an investigation. On the completion thereof a charge sheet was laid against the appellant accused and two other persons namely Shri Suresh Gowala and Sungloo Gowala. The case being triable exclusively by the court of Sessions, it was committed to the court of the District and Sessions Judge, Jorhat, and eventually was taken up for trial by the learned Additional District and Sessions Judge, Jorhat. 5. The appellant accused and two others as above having denied the charge under Section 302/34, of the Code as framed, the prosecution examined its witnesses whereafter the statements of the accused persons were recorded under Section 313 of the Criminal Procedure Code. The defence, however, did not adduce any evidence. After hearing both sides, the impugned judgment and order was passed thereby convicting and sentencing the accused appellant as above while acquitting the two others. 6. The defence, however, did not adduce any evidence. After hearing both sides, the impugned judgment and order was passed thereby convicting and sentencing the accused appellant as above while acquitting the two others. 6. The learned amicus curiae has argued that though PW3, PW4, PW5 and PW10 have been presented to be the eye witness of the incident, they having contradicted each other on material particulars, they are untrustworthy and, therefore, their evidence is not worthy of being acted upon to base the conviction of the accused appellant. According to her, as on a correct appreciation of the testimony of these witnesses, the two co-accused had been rightly acquitted, by an analogy of reasoning the accused appellant is also entitled to be exonerated of the charge. This is more so as a common intention amongst the three accused persons had been alleged by the prosecution and sought to be proved by the evidence adduced by it. Referring to the seizure list and the post mortem report as well, the learned amicus curiae has urged that those per se do not establish any nexus between the accused appellant, and the alleged crime and, therefore, on that count also the impugned judgment and order is liable to be interfered with. 7. The learned Public Prosecutor on the other hand has insisted that the evidence of the eye witnesses PW3, PW4, PW5 and PW10, if read in conjunction proves beyond all reasonable doubt the complicity of the accused appellant in the crime and, therefore, his conviction and sentence is unassailable in law and on facts. 8. To appropriately appreciate the rival submissions, it would be apposite to have a bird's eye view of the evidence on record. 9. To start with, the FIR (Exhibit 2) specifically mentions the name of the accused appellant to be the assailant. PW1, Ram Ch. Sarma, has conceded of not having seen the incident. PW2, Mangia Kalindi, though did not see the incident claims himself to be an witness to the seizure of a dao, Material Exhibit 1 vide the seizure list, Exhibit-1 in which he proved his signature, Exhibit 1(1). PW1, Ram Ch. Sarma, has conceded of not having seen the incident. PW2, Mangia Kalindi, though did not see the incident claims himself to be an witness to the seizure of a dao, Material Exhibit 1 vide the seizure list, Exhibit-1 in which he proved his signature, Exhibit 1(1). PW3, Shri Dharam Gowala, the nephew of the deceased stated that at about 9 P.M. on the day of the occurrence while he was standing on the road near his house, he saw the accused appellant and two other persons charged along with him, dragging his uncle Nomal along the road. The witness stated that the accused appellant then gave a blow with the dao on the neck of his uncle whereafter he fell down. He further stated that then the other two accused persons started assaulting the injured with dao's while the accused appellant stood nearby, waiting. He proved the FIR, Exhibit-2 with his signature Exhibit 2(1). He identified the seized dao, Material Exhibit 1. In cross-examination, he confirmed that the FIR has been written as per his version. He also admitted of having omitted to mention the name of the two co-accused therein. This witness further disclosed about strained relationship between the accused Suresh and Nomal following the elopement of his (Suresh) sister with Sunil Gowala, the brother of the deceased. He also referred to threats being extended by the deceased to the accused persons in this regard. 10. PW4, Smt. Anjali Gowala, is the sister in law of the deceased who stated to have seen the accused appellant and his two companions, Suresh and Sungloo hack Nomal with dao. The witness clarified that the appellant accused gave the first dao blow on the neck of Nomal and thereafter the other two accused persons assaulted the injured with dao. In cross-examination, she stated that about 50-60 persons had witnessed the occurrence. 11. PW5, Shri Kishan Gowala, also testified to have seen the accused appellant and his two co-accused taking the deceased along with them whereafter the accused appellant hacked him with the dao in his hand on his (Nomal) neck and that thereafter the other two accused persons also struck the injured with dao. The witness stated that while the two accused persons were assaulting the injured, the accused appellant was standing aside. 12. The witness stated that while the two accused persons were assaulting the injured, the accused appellant was standing aside. 12. PW10, Santi Gowala, widow of the deceased stated that on the date of the occurrence at about 8 p.m. all the three accused persons had come to her house in search of her husband and not having able to locate him there, they returned. The witness stated that thereafter when she came out in search of her husband, she saw all the three accused persons taking him (Nomal) towards the labour line. She also stated that after taking her husband to a certain distance, all of them started assaulting him with dao's. PW6, Ram Tanti, PW7, Ajoy Ghatowal, PW8, Shri Anil Gowala, are witnesses to the inquest and had proved the inquest report Exhibit 3 with their signatures thereon. PW9, Biren Nayak, stated to have signed a paper at the police station and proved his signature Exhibit 1(3). PW13, Dr. Bibhu Charan Baruah, who performed the post mortem examination on the dead body of Nomal in his evidence proved the following injuries. 1. Multiple incised wounds over the head and neck region which are described in Col. No. 2 of the post mortem report. 2. One incised wound over right glutual region, size 4" x 2" x 1". 3. One incised wound over left palm, in the thenar eminent, size 11/2" x 1" x 1/2". The wounds described in Col. No. 2 of the post mortem report as follows: 1. One incised wound over right parietal region almost vertical in direction, size 4" x 1" x 2". 2. One incised wound over right side of the face extending from chin to right ear lobula, measuring the mandible and maxilla size 5" x 1" x 1". 3. One incised wound over the potero laterial aspect of the left side of the neck almost vertically from the occipital region to the level of the 4th servical vetebra, size 6" x 3" x 2" cutting through the muscles and great vessels of the region. 4. One incised wound obliquely placed over the back of the neck size 2" x 1" x 1". The wound No. 1 described in Col. No. 1, incised the membrane exposing the brain matters. Brain and spinal cord: 1. Tear of brain matters with intra cerebral haemorrhage in the parietal region. 4. One incised wound obliquely placed over the back of the neck size 2" x 1" x 1". The wound No. 1 described in Col. No. 1, incised the membrane exposing the brain matters. Brain and spinal cord: 1. Tear of brain matters with intra cerebral haemorrhage in the parietal region. The injuries described above were ante mortem in nature. Injury described in 1, 2 and 3 of Col No. 2 are fatal. 13. He also proved the post mortem report, Exhibit 6, with his signature Exhibit 6(1). This witness opined that the death was caused due to the injuries sustained by the deceased. Though this witness was cross-examined, his findings remained unshaken. 14. PW11, Khairul Islam, who had conducted a part of the investigation with reference to the case diary testified that whereas PW3 stated before him to have seen the occurrence from his house and not from the road, PW5 and PW10 did not claim before him to have seen the occurrence. 15. PW12, Khiteswar Bania, on the completion of the investigation had submitted the charge sheet, which he proved as Exhibit 5 with his signature thereon as Exhibit 5(1). 16. The factum of death of Nomal from the injuries sustained by him and detected in course of the post mortem examination is amply demonstrated by the evidence on record. The injuries found on the dead body evince multiple incised wounds on the head, neck and face region. That a sharp cutting weapon had caused the same is obvious. Noticeably though PWs 3, 4, 5 and 10 did claim to have seen the actual assaults, the Investigating Officer, PW11, in his evidence with reference to the case diary has in clear terms testified that PW5 and PW10 did not at the earliest point of time while offering their statements before him disclosed it to be so. The evidence of these two witnesses therefore, in our estimate, vis-a-vis the incident ought not to be relied upon. 17. The evidence of PW3 who insisted at the trial to have witnessed the incident from the road, according to the Investigating Officer, PW11, in his (PW3) statement under Section 161, Cr.P.C. stated that he did so from his house. We are inclined, therefore, to exclude his evidence also from consideration vis-a-vis the incident. 18. 17. The evidence of PW3 who insisted at the trial to have witnessed the incident from the road, according to the Investigating Officer, PW11, in his (PW3) statement under Section 161, Cr.P.C. stated that he did so from his house. We are inclined, therefore, to exclude his evidence also from consideration vis-a-vis the incident. 18. The testimony of PW4, however, has remained unshaken in his cross-examination and there is no reason why the same ought not to be relied upon. This witness, however, in categorical terms stated that the accused appellant had dealt only one blow with the dao on the neck of the deceased and that the other assaults were unleashed by the two co-accused who have since been acquitted by the learned trial court. It is submitted at the Bar that no appeal/revision has been preferred against such acquittal by the State or by the informant/complainant. 19. Having regard to the paradigm of the evidence of the witnesses more particularly those who claim to have witnessed the incident, all the accused persons in a body had attacked the deceased. The acquittal of two, therefore, has a subversive bearing on the prosecution case. This notwithstanding on the assessment of the evidence on record vis-a-vis the accused appellant, we are of the opinion that his involvement in the assault stands proved. 20. As alluded hereinabove, the noticeable feature in the evidence of all the eye witnesses is that the accused appellant had dealt only one swipe with the dao in his hand. The evidence on record also demonstrates a continuum of bitter relationship between Nomal and the accused persons stemming from the elopement of the sister of one of the accused with the brother of the deceased for which confrontations between them occurred every now and then. It is also available on records that in connection with this episode the deceased used to threaten the accused appellant and his co-accused. 21. In the above premise, having regard to the consistent evidence that the accused appellant had struck the deceased only once with the dao, we are inclined to conclude that by doing so though he had the knowledge that thereby serious injuries would be caused to him, he necessarily did not have the intention of killing him. 21. In the above premise, having regard to the consistent evidence that the accused appellant had struck the deceased only once with the dao, we are inclined to conclude that by doing so though he had the knowledge that thereby serious injuries would be caused to him, he necessarily did not have the intention of killing him. The combative orientation of the parties in view of the sensitive issue involving the sister of the accused suresh and the brother of the deceased, we are also inclined to infer that the assault by the appellant accused was impelled by sudden provocation for which he lost his control. We have heard the learned amicus curiae on the question of sentence and also have noticed as well that he is in custody since after the delivery of the impugned judgment and order on 29.9.2003. 22. On a consideration of all above, we are of the view that it would meet the ends of justice if the conviction of the accused appellant is converted into one under 304, Part-II of the Code and the substantive sentence is limited to the period already undergone by him. Ordered accordingly. Having regard to his poor financial condition, we set aside the sentence of fine awarded by the learned trial court. The accused appellant, in view of the above would be set at liberty forthwith. The appeal is partly allowed. Before parting, we record our appreciation for the assistance of the learned amicus curiae and direct payment of her remuneration for conducting the appeal, which we assess at Rs. 3,500. Registry to take necessary steps forthwith.