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2012 DIGILAW 111 (GAU)

Dwigendra Das v. State of Assam

2012-01-27

ADARSH KUMAR GOEL, C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 25.04.2005, passed by the learned Sessions Judge, Darrang, Mongaldoi, in' Sessions Case No. 109 (D-M)/2003 arising out of G.R. Case No. 417/2002 (Tangla P.S. Case No. 22/2002) under Section 302, IPC. By the impugned judgment and order, the learned Sessions Judge convicted, Shri Dwigendra Das (hereinafter referred to as the appellant) under Section 302 of the Indian Penal Code (for short, the IPC) and sentenced him to suffer imprisonment for life and pay fine of Rs. 1,000/- (Rupees one thousand) only, in default, suffer rigorous imprisonment for another period of 3 (three) months. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this appeal from the jail. 2. We have heard Mr. D.K. Chomal, learned Amicus Curiae, appearing for the appellant and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, appearing for the State respondent. 3. The prosecution case, in brief, is that, on 27.04.2002 at about 5.00 p.m., Smti Saraswati Sarkar (PW 2) and her husband Shri Himangshu Sarkar (in short the, "deceased) visited the house of the appellant for realizing an amount of Rs. 500/- (rupees five hundred) only, which amount they were entitled to get from the appellant. 4. Upon making for the money, the appellant picked up a quarrel with the deceased and his wife and thereafter inflicted dao blows on the face and neck of the deceased with a 'mit' dao (a sharp cutting weapon) as a result of which the deceased died on the spot. 5. Shri Mahabal Sarkar (PW 1), who was the brother of the deceased, coming to know about the said incident rushed to the place of occurrence, where he met the deceased wife (PW 2) and found the dead body of his brother, lying on the road, in front of the house of the appellant. He was informed by PW 2 about the said incident. Accordingly, PW 1 lodged an FIR with the police on the same day. After receipt of the FIR, police registered a case under Section 302, IPC, visited the place of occurrence, prepared inquest report (Ext. No. 2) and sent the dead body for post- mortem examination. 6. At the close of investigation, Police submitted the charge sheet (Ext. 3), under Section 302, IPC, against the appellant. After receipt of the FIR, police registered a case under Section 302, IPC, visited the place of occurrence, prepared inquest report (Ext. No. 2) and sent the dead body for post- mortem examination. 6. At the close of investigation, Police submitted the charge sheet (Ext. 3), under Section 302, IPC, against the appellant. The offence being exclusively triable by the Court of sessions, the learned Judicial Magistrate, Darrong, Mongaldoi committed the case to the Court of Sessions. Accordingly, the learned Sessions Judge, Darrang, Mongaldoi framed the charge under Section 302, IPC against the accused-appellant, to which the later pleaded not guilty of the offence and claimed to be tried. 7. The prosecution examined as many as 8 (eight) witnesses including the Medical Officer (PW 8), who performed the postmortem examination in respect of the dead body of the deceased and the Investigating Officer (PW 7). At the close of the examination of the prosecution witnesses, the accused person was examined, under Section 313 of the Code of Criminal Procedure (in short the Cr.P.C.). He denied the allegations, brought against him. Though the accused person, in his statement made under Section 313, Cr.P.C., stated that he would adduce defence evidence, took no steps to examine any defence witness. Considering the evidence on record, the learned trial Judge convicted and sentenced the accused-appellant, as indicated hereinabove. 8. Mr. Chomal, learned Amicus Curiae, appearing for the appellant, referring to the evidence on record, more particularly, the evidence of PW 2, has submitted that, except the evidence of PW 2, who was an interested witness, being the wife of deceased, there is no other substantive evidence, on record, against the appellant. The learned Amicus Curiae also submitted that the appellant has been falsely implicated by PW 2 and that the learned trial Judge committed error by recording the conviction and the sentence, without sufficient substantive evidence. It is submitted, on behalf of the appellant, that in view of absence of sufficient evidence against the appellant, the appellant is entitled to be acquitted. 9. Refuting the said argument, advanced by the learned Amicus Curiae, Mr. Mazumdar learned Addl. Public Prosecutor has submitted that the evidence of the sole eye-witness, who is found to be reliable can be the basis of conviction. 9. Refuting the said argument, advanced by the learned Amicus Curiae, Mr. Mazumdar learned Addl. Public Prosecutor has submitted that the evidence of the sole eye-witness, who is found to be reliable can be the basis of conviction. It is also submitted that considering the facts and circumstances of this case, there was no other witness, except PW 2, who accompanied with the deceased to the house of the appellant and as such the evidence of PW 2 cannot be discarded only on the ground that she, being the wife of the deceased, was an interested witness. 10. The learned Amicus Curiae also submitted that as the dead body of the deceased was found lying, in front of the house of the appellant, there is sufficient corroboration in the evidence of PW 2, indicating that the offence was committed by the appellant and that the impugned conviction and sentence need no interference by this Court. 11. As stated by the prosecution witnesses, the deceased died on 27.04.2002, in connection with the incident which took place at about 5.00 p.m. Having heard the leaned counsel appearing for both the parties and considering the evidence, on record, we find that there is no dispute regarding the death of the deceased. 12. Dr. Promod Deka (PW 8), who performed autopsy on the dead body of the deceased on 28.04.2002 i.e. the following day of the occurrence, found the following injuries. (1) One sharp cut injury on the left side of the face extending from left ear to left angle of mount. Muscles are cut and bone exposed. (2) One sharp transverse cut in front of the neck in the middle from middle of the left sternomastoid to the right sternomastoid muscles. All muscles, larynx, oesophagus and carotid vessels on both sides are cut upto the vertebral bodies. Other organs are intact. The said medical officer exhibited the post-mortem examination report as Ext. No. 4. He opined that death was caused due to haemorrhage and shock, as a result of cut injuries, sustained by the deceased. He also opined that the cut injuries, sustained on the throat, were sufficient to cause death of a person in ordinary course of nature. The said medical officer exhibited the post-mortem examination report as Ext. No. 4. He opined that death was caused due to haemorrhage and shock, as a result of cut injuries, sustained by the deceased. He also opined that the cut injuries, sustained on the throat, were sufficient to cause death of a person in ordinary course of nature. From the said medical evidence, it is found that the deceased sustained two cut injuries i.e. one on the left side of the face and other on the front side of the neck i.e. throat region and he died due to the injuries on the throat. 13. PW 2 (Smti Saraswati Sarkar), the wife of the deceased, was present alongwith the deceased at the relevant time, i.e. when the appellant had inflicted dao blows on the face and neck of her deceased-husband. The evidence given by PW 2, despite her cross-examination, remained undemolished. She denied the suggestion, put to her on behalf of the defence, that the deceased sustained injuries at the hands of her brother-in-law and that quarrel had taken place between the deceased and the appellant. In view of the above, the said evidence, given by PW 2, remained undemolished. The medical evidence aforesaid sufficiently corroborates the evidence of PW 2, regarding the injuries sustained by the deceased. 14. PW 1 (Shri Mahabal Sarkar) lodged the FIR with the police and the same has exhibited by him as Ext. No. 1. He appeared in the place of occurrence, after the incident and was informed by 'PW 2 about the occurrence. According to this witness, he found the deceased lying dead on the public road, in front of the gate of the appellant. 15. PW 3, Shri Nikunja Mandal stated that, having heard about the incident, he arrived at the place of occurrence, which was near the house of the appellant. He saw the injuries on left side of the face and neck of the deceased, He was an witness to the inquest report (Ext. 2). 16. Shri Kaushal Sarkar, deposing as PW 4 stated that he also arrived at the place of occurrence, after hearing about the incident. According to this witness, the dead body was found lying in front of the house of the appellant. He found injuries on the neck and left side of the face of the deceased. 2). 16. Shri Kaushal Sarkar, deposing as PW 4 stated that he also arrived at the place of occurrence, after hearing about the incident. According to this witness, the dead body was found lying in front of the house of the appellant. He found injuries on the neck and left side of the face of the deceased. His evidence that the dead body of the deceased was found in front of the gate of the appellant, corroborates the evidence of PW 2 i.e. the wife of the deceased, who stated that she, alongwith her deceased husband went to the house of the appellant and that the appellant assaulted the deceased therein. 17. PW 5 Smti Niyati Mazumdar and PW 6 Smti Golapi Mandal stated that they found the dead body of the deceased lying on the road. 18. PW 2 clearly stated that upon refusal of the appellant to their due amount, she alongwith her deceased husband came out to the public road, but the appellant asked them to wait there and after bringing a mit dao from his house dealt blows on her husband. Therefore, the evidence of PW 4 that the deceased was lying on the road, in front of the gate of the appellant finds sufficient support from the evidence of PW 2 (Smti Saraswati Sarkar), PW 3 (Shri Nikunja Mandal), PW 5 (Smti Niyati Mazumdar, PW 6 (Smti Golapi Mandal). Therefore, it is found that the place of occurrence was the road in front of the house of the appellant. 19. Shri Padum Chandra Nath (PW 7), Investigating Officer (1.0.), in his evidence, stated that he found the dead body of the deceased lying in injured condition in front of the gate of the accused-appellant. From the above circumstances, which have surfaced from the evidence of the prosecution witnesses, it is clearly found that the incident took place in front of the house of the appellant. This circumstance lends support in favour of the direct evidence given by PW 2, who was the eyewitness to the occurrence. Though PW 2 was the wife of the deceased, there is nothing, on record, to show that the said witness had any reason to falsely implicate the appellant leaving the actual culprit. As the PW 2 was accompanied her husband to the house of the appellant, she was the most natural witness to the occurrence. Though PW 2 was the wife of the deceased, there is nothing, on record, to show that the said witness had any reason to falsely implicate the appellant leaving the actual culprit. As the PW 2 was accompanied her husband to the house of the appellant, she was the most natural witness to the occurrence. The said witness was subjected to cross-examination, but no material contradiction could be elicited to demolish her evidence. 20. PW 2 clearly stated that the appellant had given two dao blows on the deceased i.e. one on the face and the other on his neck. The medical officer (PW 8), who performed the postmortem examination said that injuries were caused by sharp cutting weapon. In view of the above, we find that the medical evidence, with regard to the nature and number of injuries, sustained by the deceased, supports the oral evidence given by PW 2. 21. In view of above, we find sufficient corroboration in the evidence of the said eyewitness (PW 2). The circumstance that the deceased and PW 2 had visited the place of occurrence on the fateful day to take money, that an altercation had taken place between the appellant and the deceased regarding payment of the money, that the deceased sustained the cut injuries on his face and the neck, that the deceased was lying dead, in injured condition, on the road, in front of the house of the appellant supports the prosecution version. 22. Therefore, we find the evidence given by PW 2 (i.e. the eyewitness) to be reliable and substantive. Taking the direct evidence, given by PW 2 in confidence, coupled with the said circumstantial evidence, we have no hesitation in holding that the appellant caused the death of the deceased, by inflicting fatal injuries with sharp cutting weapons. There is nothing on record to show that the appellant was either provoked in any manner or that he had inflicted the injuries in a heat of passion, upon sudden quarrel. 23. As revealed from the evidence of PW 2, the appellant asked the deceased and PW 2 to wait and then, he, bringing a dao from his house inflicted blows on the face and neck of the deceased, which were vital parts of the body of a person. 23. As revealed from the evidence of PW 2, the appellant asked the deceased and PW 2 to wait and then, he, bringing a dao from his house inflicted blows on the face and neck of the deceased, which were vital parts of the body of a person. It is within the common knowledge of every person that cut injuries inflicted on face as well as neck with a sharp cutting weapon would cause death of a person. Giving of the dao blows, on such vital parts, more particularly, on the neck clearly indicates the intention of the appellant to cause death of the deceased. Admittedly, the deceased died due to cut injuries, sustained by him on his neck at the hands of the appellant. Hence, there is no difficulty to understand that the appellant had intentionally caused the said injuries, which were likely to cause death of the deceased. 24. In view of the above discussed evidence, we find that the prosecution could successfully prove, beyond all reasonable doubt, that the appellant had committed offence under Section 302, IPC and as such, in our considered opinion that the learned trial Judge committed no error by conviction and sentencing the appellant under Section 302, IPC. In view of the above discussion, we find no merit in this appeal requiring interference with the impugned conviction and sentence. Accordingly, the appeal is dismissed. 25. Return the LCRs. 26. As per 7th schedule of the Constitution of India, police and public orders are State subjects and as such the State Governments are primarily responsible for prevention, detection, registration and investigation of crime as well as for prosecution of the accused/criminal. Therefore, it is also the responsibility of the State Government to protect the life and property of the citizen and to take appropriate measure for providing necessary funds for providing adequate compensation to the victims, their legal representatives or dependents, as the case may be. 27. Section 357A, Cr.P.C., itself provides that the State Government, in coordination with the Central Government, has to prepare the said scheme for providing fund for the purpose of payment of compensation to the victims, their legal heirs and dependents. This implies that the Central Govt. 27. Section 357A, Cr.P.C., itself provides that the State Government, in coordination with the Central Government, has to prepare the said scheme for providing fund for the purpose of payment of compensation to the victims, their legal heirs and dependents. This implies that the Central Govt. also has the responsibility all together for implementation of the provisions prescribed under Section 357A, Cr.P.C. Thus, it is clear that the rehabilitation of the victim or their dependents and legal representatives, as the case may be, is also a part of criminal justice delivery system. This requirement is independent of punishment or acquittal awarded to the guilty person. Unless the victim or their dependent (s), in appropriate cases, are suitably compensated or rehabilitated, justice cannot be said to be done. Because the loss, injury and suffering caused to the victim or his/her dependents will continue, with the existence of a feeling of insecurity unless appropriate measure for rehabilitation is taken. 28. In view of the above, there is no difficulty in understanding that it is the mandatory requirement of the statutory provisions, as prescribed by Section 357A, Cr.P.C. to provide adequate compensation to the victim, his/her dependents or legal representatives, who require rehabilitation. 29. In the event of preparation of the scheme for the said purpose, the State Legal Services Authority or the District Legal Services Authority as the case may be, are required to decide the quantum of compensation to be awarded to the victims under the scheme as per sub-section (2) of the Section 357A, Cr.P.C. and on receipt of the recommendation, or the application as prescribed under sub-section (4) of the said section, the concerned Legal Services Authority is required to make an enquiry for awarding adequate compensation by completing the enquiry within a period of 2 (two) months. Therefore, it is the responsibility of the Legal Services Authority to determine the dependency and the quantum of compensation for rehabilitation. 30. Though, the said scheme has not yet been prepared by the State Government, despite statutory requirement, the victims or their dependents, who are entitled to be rehabilitated under the statute, cannot be compelled to wait till such scheme is made and, thus, deprived from getting the benefit under the said statutory provision, which has come into force with effect from 31.12.2009. Therefore, the State 'Government is expected to prepare the scheme, as required by Section 357A of the Cr.P.C., without further delay. 31. In view of what has been discussed above, with a view to do justice to the victim or their dependents, under the provision of Section 357A, Cr.P.C., we make the following recommendations and directions : (i) As an interim measure, an amount of Rs. 50,000/shall be deposited by the State Government with the Darrang District Legal Services Authority within a period of two months from this date. (ii) The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether there is any victim and in the absence or death of victim, whether he/she has any dependent (s), who suffered loss and injury as a result of the death of the deceased and also, if the victim, or, in the absence of the victim, the surviving dependent (s) or legal representative (s) need any rehabilitation. (iii) Upon such enquiry, if it is found that the victim, or his 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. (iv) If the District Legal Services Authority, after due enquiry, arrives at the findings that there is no victim or defendent (s) or chat the victim or the dependent (s) of the deceased/victim does not need any rehabilitation, then the concerned District Legal Services Authority, shall refund the said amount of Rs. 50,000/without delay, in favour of the State Government. (v) The State Governments, within the jurisdiction of this Court shall take steps to prepare the scheme, as required by the statutory provision, prescribed Section 357A, Cr.P.C., without further delay. 50,000/without delay, in favour of the State Government. (v) The State Governments, within the jurisdiction of this Court shall take steps to prepare the scheme, as required by the statutory provision, prescribed Section 357A, Cr.P.C., without further delay. (vi) For the purpose of providing financial assistance towards rehabilitation of the victim or his/ her dependents, in appropriate case, and for proper implementation of the scheme, provided by Section 357A, Cr.P.C., the Judicial Officers, working under the jurisdiction of this Court, during' the course of trial, shall ascertain, (a) if there is any dependents of the victim (b) the financial status of the victim or his/her dependent (s), if any, (c) whether the victim or his/her dependents, as the case may be, needs any rehabilitation (d) the financial status of the accused person (s) and (e) such findings shall be reflected in the judgment. 32. Registry shall furnish copy of this judgment to the Chief Secretary to all the State Governments and the Judicial Officers, within the jurisdiction of this Court. 33. With the above observations, directions and modifications, as indicated above, this appeal is partly allowed to the extent aforesaid. We acknowledge with appreciation the assistance rendered by Mr. D.K. Chomal, Learned Counsel as amicus curiae and direct that an amount of Rs. 3,5007 (Rupees three thousand five hundred) only to be paid to the learned Amicus Curiae as his remuneration by the State Legal Service Authority.