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2011 DIGILAW 257 (GAU)

Abhiram Lohar v. State of Assam

2011-03-23

A.K.GOSWAMI, MADAN B.LOKUR

body2011
JUDGMENT Madan B. Lokur, J. 1. The Appellant is aggrieved by his conviction and sentence by a judgment dated 6-7-2006 passed by the Sessions Judge, Cachar, Silchar in Sessions Case No. 91/2004. 2. The Appellant was convicted for an offence of murder under Section 302 of the IPC and is undergoing life imprisonment. This appeal has been preferred by him from jail. The conviction of the Appellant rests on the eye witness testimony of PW-1 Nitu Bagti and PW-2 Hiramoti Paul. The Appellant was also implicated by the deceased Mamata while she was in an injured condition. PW-3 Bimal Bhumij and PW-6 Barun Lohar stated that the Mamata had told them that the Appellant had attacked her. 3. On 16-2-2004 a First Information Report (FIR) was lodged by Barun Lohar (husband of the deceased) to the effect that on 11-2-2004 his wife Mamata had gone to the well in the Tea Estate to take a bath. At that time his elder brother (the Appellant) attacked her with a dao and randomly gave her blows on the neck and hands. Hearing the commotion the informant came running to take care of his wife who was in an injured state. She was later on shifted to Silchar Medical College Hospital but she succumbed to her injuries on 14-2-2004. 4. On the basis of the FIR, investigations were carried out and eventually a charge sheet was filed against the Appellant. On 3-11-2004 the Chief Judicial Magistrate at Cachar was of the view that the case was triable exclusively by a Court of Sessions and hence the case was committed to the Court of Sessions. The Appellant was thereafter produced before the Court of Sessions and on 2-12-2004 he was charged with having committed the murder of Mamata. The Appellant pleaded not guilty and claimed trial. 5. PW-1 Nitu Bagti and PW-2 Hiramoti Paul were eye witnesses to the attack on Mamata. They both stated that Mamata was changing her clothes after a bath when the Appellant suddenly came to the well and assaulted her on her neck and hand with a dao. While PW-1 Nitu Bagti raised an alarm, PW-2 Hiramoti Paul tried to catch hold of the Appellant but he pushed her aside. He then fled away with the dao and PW-2 also raised an alarm. While PW-1 Nitu Bagti raised an alarm, PW-2 Hiramoti Paul tried to catch hold of the Appellant but he pushed her aside. He then fled away with the dao and PW-2 also raised an alarm. Thereafter a large number of people came to the well and Mamata was taken to the Silchar Medical College Hospital. PW-1 Nitu Bagti mentions the presence of the elder sister of the husband of Mamata but this lady was not examined by the prosecution. 6. The cross examination of these two witnesses was rather perfunctory and the Appellant was not able to shake their testimony or to discredit them in any manner whatsoever. 7. PW-3 Bimal Bhumij and PW-6 Barun Lohar were not present at the place of occurrence but they both say that Mamata told them, before her death, that the Appellant had attacked her and it appears that thereafter he fled away. PW-6 Barun Lohar was unable to explain why the Appellant had attacked his wife. However, the Appellant, in his examination under Section 313 of the Code of Criminal Procedure volunteered that he attacked Mamata because she was a person of immoral character. There is nothing to substantiate the allegation made by the Appellant against Mamata. 8. Be that as it may, the other witnesses produced on behalf of the prosecution, namely, PW-4 Arun Paul and PW-5 Shyama Prasad were not eye witnesses to the occurrence. They were present when the Investigating Officer made certain seizures but we are unable to place any reliance on the seizures because there is nothing to show that the items seized belonged either to the Appellant or to Mamata. 9. PW-7 Nimar Ali Laskar is the Investigating Officer and he says that he had visited the house of the Appellant but could not find him. In fact the house was abandoned and when he went inside, he found a blood stained dao inside the house and he seized it. The blood stained dao was not sent for any forensic examination and, therefore, it is not possible to assume that it was the very same dao used to attack Mamata, as suggested by the prosecution. 10. Dr. B.C. Roy Medhi appeared in the witness box as PW-8 and he described the several injuries inflicted on Mamata. According to him the injuries were ante mortem and homicidal in nature and were as follows: 1. 10. Dr. B.C. Roy Medhi appeared in the witness box as PW-8 and he described the several injuries inflicted on Mamata. According to him the injuries were ante mortem and homicidal in nature and were as follows: 1. Incised wound on back neck on right side, 6 cms long and 1.5 cms deep. 2. Another same wound on left side 13 cms long and 1.5 cms deep. 3. Same type of wound on right side of neck on lower part 12 cms long and 2 cms deep. 4. Same type of wound 10 cms long x 2 cms deep on left side of neck. 5. Another same type of wound 5 cms long x 1 cm deep. Another two injuries by the side of No. 5 of same size present on right side. These three numbers described on 5 are stitched by doctors in the hospital. 6. Incised wound on left forearm on ulnar border 9 cms long x 1 cm deep (stitched). 7. Incised wound on left palm on ulnar border 8 cms long x 5 cms deep. Wound cutting up to muscles (stitched). 8. Incised wound on bulbs of finger of left hand index and mid and ring finger. 9. Abrasion over body of mandible on left side 3 x 5 cms. 11. On the above evidence, the learned Trial Court found the Appellant guilty of having caused the murder of Mamata. We do not find any reason to disagree with the view taken by the learned Trial Court. 12. Learned Amicus Curiae made three submissions on behalf of the Appellant. It was firstly submitted that there was a delay in filing the FIR. The attack took place on Mamata on 11-2-2004 but the FIR was lodged only on 16-2-2004. In our view the delay is easily explained. It is on record that immediately after the incident on 11-2-2004 Mamata was taken by her husband to Silchar Medical College Hospital where she succumbed to her injuries on 14-2-2004. It was, in our opinion, more important for Barun Lohar to look after his wife while she was in a critically injured state rather than to go back to his place of residence to lodge an FIR. Mamata succumbed to her injuries on 14-2-2004 and it appears that it is only thereafter that her husband came back to the place of residence and lodged the FIR. Mamata succumbed to her injuries on 14-2-2004 and it appears that it is only thereafter that her husband came back to the place of residence and lodged the FIR. We do not find any unusual delay in filing the FIR, given the circumstances of the case. 13. The second submission of learned Amicus Curiae was that the ownership of the dao used to attack Mamata could not be attributed to the Appellant. While this may be so, particularly because the dao was not sent for forensic examination even though it carried blood stains, in our opinion, the absence of proof of the weapon of offence seized by the Investigating Officer would not detract from the involvement of the Appellant in the crime. There were two clear eye witnesses, whose testimony was not shaken at all, who stated that the Appellant attacked Mamata with a dao. If that dao could not be recovered, it would certainly not lead to the conclusion that no attack took place on Mamata by the Appellant. We, therefore, reject the suggestion of learned Amicus Curiae that the absence of the weapon of offence would result in the absence of conclusive proof of the involvement of the Appellant in the crime. 14. The third contention of learned Amicus Curiae was that there was yet another witness to the incident, that is, the elder sister of Mamata's husband, but she was not examined by the prosecution. It is quite clear that the number of witnesses does not make any difference to the case of the prosecution. Even if there were three eye witnesses to the occurrence, that two of them entered the witness box and testified the events that transpired, is quite adequate. In our opinion, it is not at all necessary to multiply the number of witnesses the quality of witnesses and not their number is important. Under these circumstances, we do not see the failure of the prosecution to produce the elder sister in the witness box as being fatal to the case of the prosecution. 15. We have already adverted to the unshaken testimony of PW-1 Nitu Bagti and PW-2 Hiramoti Paul, who were eye witnesses to the incident and who clearly stated that the Appellant had attacked Mamata with a dao and injured her. In our view, their testimony is sufficient to convict the Appellant. 15. We have already adverted to the unshaken testimony of PW-1 Nitu Bagti and PW-2 Hiramoti Paul, who were eye witnesses to the incident and who clearly stated that the Appellant had attacked Mamata with a dao and injured her. In our view, their testimony is sufficient to convict the Appellant. Added to this is the statement of PW-3 Bimal Bhumij and PW-6 Barun Lohar to the effect that they were told by Mamata that the Appellant had attacked her. While the testimony of these two witnesses would not clinch the issue, nor can it be treated as dying declaration, yet we cannot totally ignore it. In any case, the testimony of PW-1 Nitu Bagti and PW-2 Hiramoti Paul is sufficient to convict the Appellant. 16. Under the circumstances, we find no merit in this appeal. It is accordingly dismissed. The Trial Court records be sent back immediately. 17. For the services rendered by learned Amicus Curiae, the Assam State Legal Services Authority will remunerate her to the extent of Rs.5000/-. 18. A free copy of this judgment be supplied to the Appellant. Appeal dismissed.