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2012 DIGILAW 110 (GAU)

Shawan Kasta v. State of Assam

2012-01-27

ADARSH KUMAR GOEL, C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. The challenge in this appeal is to the judgment and order, dated 15.03.2005, passed by the learned Addl. Sessions Judge No. 1, Tinsukia, in Sessions Case-No. 34(T) 2004. By the impugned judgment and order, the learned Sessions Judge, while convicting the appellant u/s. 302 IPC, sentenced him to suffer rigorous imprisonment for life and pay fine of Rs. 1,000/- in default, suffer simple imprisonment for another period of two months. We have heard Mr. P. Kataki, learned Amicus Curiae and Mr. D. Das, learned Addl. P.P., Assam. 2. The prosecution case, in brief, as revealed during the trial is as follows:- On 24.09.2003, at about 8-30 a.m., the appellant being armed with a knife assaulted Mr. Bhanu Dutta (hereinafter called the deceased), by inflicting several cut injuries and thereby caused his death. The occurrence took place in the backyard of the house of the deceased. The wife of the deceased, who was available in her house, at the relevant time, saw the incident. After committing the said crime, the appellant, with the incriminating weapon, appeared in the police station and handed over the said knife to the Officer-in-charge of the police station. Accordingly the accused person was arrested and the knife, produced by him, was seized vide seizure list (Ext 2). 3. Mr. Mithu Dutta (PW-1), who is the brother of the deceased, coming to know about the occurrence, proceeded to the place of occurrence and met the appellant, on the road, who was proceeding towards the police station. On being asked by the PW-1, the appellant told him that he had cut the deceased. PW-4, after his arrival in the premises of the deceased, found the dead body lying with injuries on the neck, leg, arms etc. Accordingly he lodged the FIR (Ext. 1) with the police. On receipt of the said FIR police registered a case u/s. 302 IPC and lunched investigation into the matter. 4. During the course of investigation, police visited the place of occurrence and prepared inquest report (Ext. 2) of the dead body and forwarded the same to the Assam Medical College Hospital for post mortem examination. After collecting the post mortem report and upon completion of the investigation, the investigating officer submitted charge-sheet, under Section 302 IPC, against the appellant. 4. During the course of investigation, police visited the place of occurrence and prepared inquest report (Ext. 2) of the dead body and forwarded the same to the Assam Medical College Hospital for post mortem examination. After collecting the post mortem report and upon completion of the investigation, the investigating officer submitted charge-sheet, under Section 302 IPC, against the appellant. The offence u/s. 302 IPC, being exclusively triable by Court of Sessions, the learned Chief Judicial Magistrate, committed the case and forwarded the appellant to the Court of sessions to stand trial. 5. The learned Sessions Judge framed charge under Section 302 IPC against the appellant, to which he pleaded not guilty. The appellant claimed to be tried. In order to substantiate the allegations, brought against the appellant, the prosecution examined as many as 8 witnesses including the medical officer (PW-6), who conducted post moretm examination, and the investigating police officer (PW-8). At the close of the evidence for the prosecution, the accused person was examined under Section 313 Cr. P.C. He denied the allegations, brought against him. In his statement, made under Section 313 Cr. P.C., the appellant stated that he was a labour by occupation and that he was falsely implicated in this case. 6. Mr. P. Kataki, learned Amicus Curiae, appearing for the appellant, referring to the evidence, on record, has submitted that there is no direct evidence against the appellant, except the evidence of PW-4, who happens to be interested witness, being the wife of the deceased. It is also submitted that the evidence of the said interested witness, who had a dispute with the appellant regarding payment of his remuneration can not be accepted without corroborating from independent evidence. The learned defence counsel has also submitted that the extra judicial confession, alleged to be made before PW-1 and P W-2, who are the brothers of the deceased, can not be acted upon, on the ground that the said witnesses are also interested witness. In view of the above, learned Amicus Curiae has submitted that the prosecution failed to establish the charge against the appellant, beyond all reasonable doubt and therefore, the learned trial judge committed error by recording the impugned conviction and the sentence. In view of the above, the learned Amicus Curiae has submitted that the appellant is entitled to be acquitted on benefit of doubt. 7. Mr. D. Das, learned Addl. In view of the above, the learned Amicus Curiae has submitted that the appellant is entitled to be acquitted on benefit of doubt. 7. Mr. D. Das, learned Addl. P.P., Assam, refuting the said argument, has submitted that as the occurrence took place in the premises of the deceased in presence of PW-4 i.e. the wife of the deceased. She was a natural witness to the occurrence. It is also submitted that it is very difficult to procure the attendance of witnesses from the neighbourhood, inasmuch as, nobody except the family members of the deceased/ victim would come forward to stand as witness. Therefore, the victim's/deceased's relative, if found trustworthy, can not be discarded on the ground that such person is an interested witness. The learned Addl. P.P., supporting the impugned conviction and sentence, has submitted that the evidence of PW-4, who was subjected to cross-examine by the defence, remained un-demolished and as such her relationship with the deceased cannot be a reasonable ground to disbelieve her forceful evidence. Referring to the extra-judicial confession, made before PW-1 and PW-2, the learned Amicus Curiae has submitted that though both the said witnesses were duly cross-examined, no material contradiction could be elicited to demolish their evidence, with regard to the extra-judicial confession. Therefore, the learned Addl. P.P., Assam has submitted that both PW-1 and 2 being reliable and trustworthy witness their evidence, with regard to extra-judicial confession, is acceptable and as such the learned Sessions Judge committed no error, by convicting the appellant, on the basis of the said extra-judicial confession as well as the evidence of PW-4 aforesaid. The learned Amicus Curiae has also submitted that, in view of the evidence, surfacing from the record, the impugned judgment and order needs no interference. 8. In order to appreciate the counter arguments, advanced by the learned counsel appearing for both the parties and to examine the correctness of the impugned judgment and order, we feel it appropriate to, briefly, scan the evidence on record. 9. Smti. Aruna Dutta, (PW-4), wife of the deceased is the star witness in this case. From the evidence of the said witness it is found that at the time of the occurrence, which took place in her premises, she, was present in her house and saw the occurrence herself. 9. Smti. Aruna Dutta, (PW-4), wife of the deceased is the star witness in this case. From the evidence of the said witness it is found that at the time of the occurrence, which took place in her premises, she, was present in her house and saw the occurrence herself. From her evidence it was found that earlier, the appellant used to render services in her house (i.e. deceased's) by performing duty of escorting deceased's children to and from their school and in lieu of said service, the appellant was provided free food. However, though the appellant had asked for payment of money, for rendering the said service, PW-4 and her deceased husband refused to pay the same. She also stated that subsequently, an amount of Rs. 10,000/- was missing from the house of the deceased and thereafter the accused stopped visiting their house. According to PW-4, after hearing the alarm raised by her husband, she came out from her house and saw the accused, being armed with a dao assaulted her husband. She clearly stated that the accused had inflicted several blows on her husband, despite request, made by her, not to inflict injuries on her husband. PW-4 further stated that her husband was chased and assaulted by the appellant as a result of which he died. This witness was cross-examined on behalf of the defence but no contradiction could be elicited to render her evidence disbelievable. Therefore, her uncontroverted evidence, regarding the assault, caused by the appellant, leading to the death of the deceased, remained un-demolished. Though PW-4 was a close relative of the deceased, such relationship, under the prevailing facts and circumstances cannot be sufficient to negate her evidence. There can be no dispute, in the attending facts and circumstances of the case, that PW-4, who was in her house, at the time of the occurrence, was an eye witness to the occurrence and she was the most natural witness. Law is well settled that unless contrary is proved, the close relationship of the witnesses with the victim of crime cannot be ground to reject the reliable and trustworthy evidence given by such witness. 10. In the present case also, as discussed above, we fail to find anything to hold that PW-4 had any intention or reason to falsely implicate the appellant, thereby allowing the real culprit, responsible for the death of her husband, to escape punishment. 10. In the present case also, as discussed above, we fail to find anything to hold that PW-4 had any intention or reason to falsely implicate the appellant, thereby allowing the real culprit, responsible for the death of her husband, to escape punishment. As revealed from the evidence of PW-4, non payment of money towards the services, rendered by the appellant might be the cause, which prompted the appellant to commit such heinous crime. Therefore, we find no reason to disbelieve her evidence. The said uncontroverted evidence of PW-4 inspire sufficient confidence to believe that none, other than the appellant, had caused the injuries, resulting the death of the deceased. 11. PW-2, the medical officer who performed the post mortem examination, on the dead body, on the date of occurrence itself found the following injuries:- (1) One incised wound measuring 12x2 cm maxilla bone incised, present on left cheek. (2) One incised wound measuring 5x2 cm left maxilla bone incised, present on 1 cm below the injury no. 1 on left cheek, (3) One incised wound measuring 8x2 cm mandible bone incised, present on left side of the chin. (4) One incised wound measuring 22x5 cm present on right side of the chin extended laterally and on back of the neck over the angle of the mandible which incised the 3rd cervical vertebrae and spinal cord, (5) One vertically placed incised wound measuring 15x3 cm present on right cheek and right side of the forehead which incised the frontal bone and right maxilla bone, (6) One incised wound measuring 7x2 cm brain deep present right frontal area of the scalp. (7) One incised wound measuring 5x2 cm muscle deep present on left chest wall, (8) One incised wound measuring 7x2 cm muscle deep present on left side of the chest, 2 cm below the injury no. 7. (7) One incised wound measuring 5x2 cm muscle deep present on left chest wall, (8) One incised wound measuring 7x2 cm muscle deep present on left side of the chest, 2 cm below the injury no. 7. (9) One incised would measuring 15 x 2 cm on epigastric area of the abdomen, which is found muscle deep, (10) One incised wound present on distal third of right forearm, only tag of skin present on flexor side, (11) One incised wound measuring 7x2 cm muscle deep present on upper third of right forearm, (12) One incised wound measuring 5x2 cm muscle deep present on right elbow, (13) One incised wound measuring 6x2 cm incised the tibia, present on medial side of middle part of left leg, (14) One incised wound measuring 6x2 cm present on left forearm in distal third which incised the both radius and ulna bone, (15) One incised wound measuring 10x3 cm present on left elbow which incised the lower part of left humorous. (16) One stab wound measuring 3x1 cm on right lateral side of the abdomen, which is abdominal cavity deep. (17) One stab wound measuring 3x1cm on right lateral side of the abdomen, 1 cm below the injury no. 16 which is abdominal cavity deep, (18) One stab wound measuring 3x2 cm muscle deep, present on back of the right shoulder, (19) One stab wound measuring 3x2 cm muscle deep, present on middle part of right side of the back of the chest, (20) One incised wound horizontally placed measuring 22x3 cm present on left side of back of the chest, which incised the left scapula. (21) One incised wound measuring 7x2 cm, scalp layer deep, present on occipital area of the calp. (22) One incised wound measuring 6x2 cm scalp layer deep, present on left temporal area of the scalp, which incised the left ear at root. 12. The medical officer opined that the death of the deceased was caused due to shock and haemorrhage, resulting from the injuries, sustained by the deceased. According to the said medical officer the injuries were anti mortem in nature and caused by sharp cutting weapon and homicidal in nature. He also opined that the injury nos. 1, 2, 3, 4, 5, 6, 8 & 10 were individually sufficient to cause death of a person in the ordinary course of nature. According to the said medical officer the injuries were anti mortem in nature and caused by sharp cutting weapon and homicidal in nature. He also opined that the injury nos. 1, 2, 3, 4, 5, 6, 8 & 10 were individually sufficient to cause death of a person in the ordinary course of nature. He has exhibited the post mortem report as Ext. 4 and his signature as Ext. 4(1). The inquest report (Ext. 3) prepared immediately, after the occurrence also suggest existence of multiple injuries, caused by sharp cutting weapon. Considering the said inquest report and the post mortem report it is found that the multiple injuries were caused by sharp cutting weapon i.e. a weapon like a dao. 13. The investigating officer (PW-8), in his evidence, stated that the appellant had appeared in the police station with a dao and confessed that he had killed the deceased. According to the investigating officer he had seized the said dao vide Ext. No. 2. The investigating officer was also cross-examined on behalf of the defence. He denied the suggestion, put to him, that the accused did not appear before the police with the dao in his hand. 14. Both PW-1 and PW-2 stated that they saw the accused proceeding towards the police station, with a dao in his hand. The evidence of PW-1, regarding availability of a dao in the hand of the appellant, remained un-controverted. 15. PW-5, who was an independent witness stated that, on being dictated by the PW-1, he had written the FIR. He further stated that he saw the appellant, entering the police station, with a dao in his hand. According to this witness he also followed the appellant to the police station and saw the later delivering the dao to the police. He has exhibited the seizure list, by which the dao was seized, as Ext. No. 2. He denied the suggestion that he did not see the appellant going to the police station with a dao. The said evidence of PW-1 and PW-5 corroborates the evidence of PW-8 i.e. the Investigating Officer regarding surrender made by the appellant with the incriminating weapon. This piece of evidence supports the prosecution version that the appellant committed the offence. 16. He denied the suggestion that he did not see the appellant going to the police station with a dao. The said evidence of PW-1 and PW-5 corroborates the evidence of PW-8 i.e. the Investigating Officer regarding surrender made by the appellant with the incriminating weapon. This piece of evidence supports the prosecution version that the appellant committed the offence. 16. PW-7, another independent witness, stated that, on the fateful day, at about 8 to 9 a.m. i.e. immediately after the occurrence, he came to know from others that the deceased was killed and that the appellant had appeared in the police station. Coming to know about the incident, this witness also proceeded to police station and he saw the accused therein. According to this witness police had seized the dao from the accused vide Ext. No. 2. He exhibited his signature in the seizure list as Ext. 2(3). In his cross-examination this witness denied the suggestion that police did not seize the dao or knife from the accused, in his presence. 17. From the above stated evidence, rendered by the prosecution witnesses, it is found that the accused person, himself, appeared before the police station and handed over the weapon of assault, which was seized vide Ext. No. 2. Though the suggestions, were put to the said witnesses denying their evidence regarding appearance of the appellant and handing over of the dao in the police station, they denied the said suggestion. 18. The said evidence regarding appearance of the accused person and production of the dao aforesaid, remained un-demolished. Therefore, we find sufficient corroboration in the evidence of the said witnesses to believe that the appellant, immediately, after committing the offence appeared in the police station and handed over the weapon i.e. the dao. This circumstantial evidence lends sufficient support in favour of the evidence of PW-4 and inspire confidence to believe that the appellant had committed the alleged offence of causing death of the deceased. 19. Further, both PW-1 and PW-2 clearly stated that the appellant had made extra-judicial confession, by saying that he had cut the deceased. The said evidence of the PW-1 and PW-2 regarding extra-judicial confession remained unchallenged and uncontroverted. The defence even failed to put any suggestion, denying the evidence of the said witnesses regarding confession. 19. Further, both PW-1 and PW-2 clearly stated that the appellant had made extra-judicial confession, by saying that he had cut the deceased. The said evidence of the PW-1 and PW-2 regarding extra-judicial confession remained unchallenged and uncontroverted. The defence even failed to put any suggestion, denying the evidence of the said witnesses regarding confession. In view of the above, there is nothing on record, to show that PW-1 and PW-2 had any reason or grudge to falsely implicate the appellant. Therefore, the uncontroverted evidence, rendered by PW-1 and PW-2 sufficiently indicates that the appellant had made extra-judicial confession. There is no difficulty in relying on such extrajudicial confession, if the person, before whom the same is made, is found to be reliable and trustworthy. There is no evidence to show that PW-1 and PW-2 are not reliable and trustworthy or that they had any reason to falsely implicate the appellant. In view of the above, the extrajudicial confession, made before PW-1 and PW-2, coupled with the forceful evidence given by the eye witness i.e. PW-4, conclusively lead to hold that the appellant had assaulted the deceased. The multiple injuries, inflicted with a sharp cutting weapon, on various vital parts of the body indicates, beyond doubt, that the appellant caused the injuries with an intention to kill the deceased and also with the knowledge that such injuries are likely to cause death. 20. In the light of the above discussed evidence, we find that the prosecution could establish beyond all reasonable doubt, by adducing cogent and reliable evidence that the appellant had brutally assaulted the deceased by inflicting fatal injuries on various vital parts of his body by means of a sharp cutting weapon and thereby intentionally caused his death. Therefore, in our considered opinion the appellant committed offence u/s. 302 IPC. 21. In view of the above, we unhesitatingly conclude that the learned Sessions Judge committed no error by convicting the appellant u/s. 302 IPC and sentencing him as indicated above. Therefore, we find no merit in this appeal requiring our interference with the impugned conviction and the sentence. Consequently, the appeal fails. 22. Return the LCR. We appreciate the assistance rendered by the Mr. P. Kataki, learned Amicus Curiae, and direct that an amount of Rs. 3,500/-be paid to Mr. Kataki, as his remuneration, by the State legal services authority. 23. Consequently, the appeal fails. 22. Return the LCR. We appreciate the assistance rendered by the Mr. P. Kataki, learned Amicus Curiae, and direct that an amount of Rs. 3,500/-be paid to Mr. Kataki, as his remuneration, by the State legal services authority. 23. In view of the provision prescribed by section 357 (A) Cr. P.C. the victim or his/her dependents are entitled to get compensation for rehabilitation in appropriate cases. Therefore, for the sake of brevity and in the light of our discussions, made in Criminal Appeal No. 93(J)/2005 (disposed on 22.12.2011), with regard to the victim compensation, as provided by Section 357(A) Cr. P.C, we make the following directions: (1) As an interim measure, an amount of Rs. 50,000/- shall be deposited by the State Government with the District Legal Services Authority of Tinsukia District within a period of two months from this date. The District Legal Services Authority, on receipt of the said money. Shall make an enquiry to ascertain as to whether, there is dependent (s), who suffered loss and injury as a result of death of the deceased and if such dependant(s) or legal representative(s) need any rehabilitation. (2) Upon such enquiry, if it is found that the dependent (s), if any, need rehabilitation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. (3) It is made clear that if the District Legal Services Authority, after due enquiry, arrives at the findings that there is no dependent(s) or that the dependant(s) of the deceased/victim does not required any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs. 50,000/-, without delay, in favour of the State Government. (4) For the purpose of providing financial assistance towards rehabilitation of the victim of his/her dependant (s), in appropriate case, and for proper implementation of such scheme, as provided by Section 357-A, Cr. P.C, it is necessary to ascertain the dependency factor and the financial status of such victim, his/her dependents, and of the accused person(s), as the case may be. P.C, it is necessary to ascertain the dependency factor and the financial status of such victim, his/her dependents, and of the accused person(s), as the case may be. Therefore, we direct that the Judicial Officers, working under, jurisdiction of this Court, during the course of trial, shall ascertain (i) the financial status of the victim or his/her dependent(s), if any, (ii) whether such persons need rehabilitation, as the case may be and also the financial status of the accused persons (s). The said findings of the enquiry shall be reflected in the judgment. Registry shall furnish copy of this judgment to all the Judicial Officers under the jurisdiction of this Court. Let a copy of this judgment and order be furnished to Mr. Z. Kamar, learned Public Prosecutor, and the Chief Secretary to the Government of Assam, for doing the needful.