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2012 DIGILAW 1137 (GAU)

Dipak Lohar @ Ruiya Lohar v. State of Assam

2012-09-26

I.A.ANSARI, S.C.DAS

body2012
JUDGMENT I.A. Ansari, J. 1. This appeal is directed against the judgment and order, dated 21.01.2006, passed, in Sessions Case No. 40 of 2004, by the learned Sessions Judge, Hailakandi, convicting the accused-appellant under Section 302 IPC, and sentencing him to suffer imprisonment for life and pay a fine of Rs. 1000/- and, in default of payment of fine, suffer rigorous imprisonment for a period of 2 months. The case of the prosecution, as unfolded during the trial, may, in brief, be described thus :- On 09.08.2003, at about 8-30 a.m., when Bhajan Lodh (since deceased) was waiting at the local Tiniali (tri-junction) along with Dilip Lohar (P.W. 5), accused Dipak Lohar came in the spot and gave, from behind, blows by means of a, 'dao' on the head of Bhajan Lodh. As a result of the blows of 'dao', received by him, Bhajan Lodh died on the spot. On a First Information Report being lodged by Smt. Subhagia Lodh, mother of the said deceased, Lala P.S. Case No. 143 of 2003, under Sections 341/302 IPC, was registered against the present appellant. During the course of investigation, police visited the place of occurrence, drew a sketch map of the place of occurrence, held inquest over the said dead body, subjected the said body to postmortem examination and, on completion of investigation, laid charge-sheet, under Sections 341/302 IPC, against the accused-appellant. At the trial, when a charge under Section 302 IPC was framed against accused-appellant, he pleaded not quality thereto. In support of their case, prosecution examined altogether 7 (seven) witnesses. The accused-appellant was, then, examined under Section 313 Cr.P.C. In his examination aforementioned, the accused-appellant denied that he had committed the offence, which he was alleged to have committed, his case being that of denial. No evidence was adduced by the defence. Having found the accused-appellant guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, passed against him, the accused, as a convicted person, has preferred this appeal. 2. We have heard Mr. P.N. Chowdhury, learned Amicus Curiae, and Mr. D. Das, Learned Additional Public Prosecutor. 3. Aggrieved by his conviction and the sentence, passed against him, the accused, as a convicted person, has preferred this appeal. 2. We have heard Mr. P.N. Chowdhury, learned Amicus Curiae, and Mr. D. Das, Learned Additional Public Prosecutor. 3. While considering the present appeal, it may be noted, at the very outset, that, according to the Doctor (P.W. 1), who had, admittedly, conducted postmortem examination on the dead body of Bhajan Lodh, the following injuries were found :- (i) One incised wound of size 16.3 cm X 2 cm X 1 cm is seen over the vertebrae of the skull running interio-posteriorly over to midline and reaching up to matter of outpost region of to skull of cutting to outer facie of the skull. (ii) One incised wound of size 10.4 cm X 4.3 cm X 2 cm is seen running obliquely in the back of the trunk, to middle portion of the wound is 10 cms below to inferior angle of to the left scapula and 5.3 cm from the vertebral column. (iii) One incised wound of size 11.4 cm X 7.3 cm X 6.5 cm is seen in the left lateral and left anterior side of the bone of the neck running horizontally and severed the vertebral column to the level between to 5th to 6th cervical vertebrae. (iv) One incised wound of size 11.1 cm X 8 cm X 3.4 cm is seen running obliquely over the middle of the exterior aspect of the left fore arm running to left ulna bone. 3. Bruise Position size and nature : 4. Mark of ligature on neck, Dissection, etc. II. CRANIUM AND SPINAL CANAL i. Scalp, skull, vertebrae: One incised wound is seen in the midline of the scalp as mentioned above. The inter table of the skull is cut corresponding to the wound on the scalp. The vertebral column is completely severed at the level between the 5th and 6th cervical vertebrae. V. MUSCLES, BONES AND JOINTS 1. Injury: The muscles of the bone of the neck on the left lateral and left anterior neck are severed. The muscles of the back of the trunk are cut as also the muscles out back of the left forearm. 2 Disease or deformity 3. Fracture: There is fracture dislocation of to joint between 5th to 6th cervical vertebrae. 4. Injury: The muscles of the bone of the neck on the left lateral and left anterior neck are severed. The muscles of the back of the trunk are cut as also the muscles out back of the left forearm. 2 Disease or deformity 3. Fracture: There is fracture dislocation of to joint between 5th to 6th cervical vertebrae. 4. According to the Doctor (P.W. 1), who has proved the postmortem report as exhibit 1, the injuries were ante-mortem in nature and that the wound No. 3 mentioned above, had severed the spinal cord and the left common carotid artery, which, was caused by, very sharp-cutting weapon leading to massive haemorrhage and became the cause of death. 5. The findings of the Doctor and his opinion, with regard to the nature of the injuries and the cause of death, were not disputed at the time of trial. We do not notice anything inherently incorrect or improbable in the evidence given by the Doctor (P.W. 1) and we see no reason to doubt the correctness or veracity of his findings and/or his opinion. 6. Situated thus, we find that the said deceased had suffered four incised wounds, as described above, the wounds had been caused by a sharp cutting weapon and the haemorrhage, which resulted from the injuries, so sustained, became the cause of death. 7. Bearing in mind the medical evidence on record, when we come to the evidence of PW 5 (Dilip Lohar), we noticed that, according to his evidence, on the day of occurrence, at about 8-45 a.m., he (P.W. 5) along with Bhajan Lodh, was waiting at the Tiniali (tri-junction) at Lalamukh Tea Estate, the accused came from behind and assaulted Bhajan Lodh on his head by means of a dao. It is in the evidence of P.W. 5 that, on being so assaulted, Bhajan Lodh fell down, he (PW 5) raised hulla and, on hearing the hulla, people gathered at the place of occurrence, but Bhajan Lodh died on the spot and the accused fled away along with his dao after assaulting Bhajan Lodh. 8. Though P.W. 5 was cross-examined by the defence, nothing material was elicited from the cross-examination, which can be taken to have shaken or impeached the credibility of the evidence of P.W. 5. 8. Though P.W. 5 was cross-examined by the defence, nothing material was elicited from the cross-examination, which can be taken to have shaken or impeached the credibility of the evidence of P.W. 5. Thus, the description of the occurrence, as given by P.W. 5, has remained completely unshaken, and inspires confidence, particularly, when we find that his evidence receives support from the medical evidence on record, which we have already discussed above. 9. Pausing here for a moment, when we turn to the evidence of P.W. 2, mother of the deceased, we find that, according to her evidence, on the day of the occurrence, at about 9:00 a.m. when she was proceeding to the Tea Estate for work, she saw the accused going ahead of her with a dao in his hand and she (P.W. 2) overtook the accused and went to the Tea Estate, but, after about half-an-hour, she learnt that her son, Bhajanlal, had been killed by the accused, whereupon she came to the place of occurrence and saw her son with sharp-cutting injuries on his neck and lying dead on the ground but the accused was not present there. 10. Though the defence declined to cross-examine P.W. 2, we must point out that the evidence of P.W. 2, as to what she had heard about the assault on her son by the accused, is nothing but hearsay inasmuch as none has been examined by the prosecution to show as to who was the one, who had informed the P.W. 2 about the occurrence. What has remained unshaken, in the evidence of P.W. 2, is that she had, admittedly, seen the accused, on the day of the occurrence, in the morning, with a dao in his hand and this amounts further assurance to the conclusion, which we have already reached above, that the accused-appellant was the one, who had assaulted, as described by P.W. 5, Bhajanlal Lodh and killed him instantaneously. 11. So far as P.W. 3 is concerned, his evidence is not of much use to the prosecution inasmuch as he was merely a witness to the inquest held over the dead body by the police. 11. So far as P.W. 3 is concerned, his evidence is not of much use to the prosecution inasmuch as he was merely a witness to the inquest held over the dead body by the police. Similarly, as far as P.W. 4 is concerned, she has deposed that she was informed about the occurrence by one Gajen Karmakar that her younger brother had been killed and, on hearing this, she rushed to the place of occurrence and found Bhajan Lodh lying dead with multiple injuries on his person. 12. In her cross-examination, P.W. 4 has admitted that prior to the occurrence there was a marpit (mutual assault) between the accused and Bhajan Lodh and, since then, the accused became dumb. The evidence, so given by PW 4, furnishes the motive, which could have impelled the accused to assault Bhajan Lodh. 13. Coming to the evidence of P.W. 6, we notice that similar to the evidence of PW 4, this witness has deposed that he came to learn about the occurrence from one Mohesh Kalwar and, on coming to know about the occurrence, he visited the place of occurrence and saw the dead body of the said deceased lying with injuries on his throat. 14. When we turn to the evidence of the Investigating Officer (P.W. 7), we find that the accused was sent for medical treatment. Taking a cue from the fact that the accused was sent to hospital for treatment, it has been submitted by learned Amicus Curiae that the accused was insane at the time of the occurrence. 15. While considering the submission noted above, it needs to be borne in mind that, during trial, there was, at no point of time, any plea of insanity of the accused-appellant was taken by the defence. There is not even an iota of evidence on record showing that the appellant was, at the time of occurrence, an insane person or had ever suffered from unsoundness of mind, in the past, or after the occurrence. We have closely examined the case record and we notice that the accused was treated for his neurological problem. There is nothing on record to show that his neurological deficiencies could have caused insanity. 16. What crystallizes from the above discussion is that the accused-appellant was proved, beyond reasonable doubt, to have assaulted Bhajan Lodh by means of a dao on his head and neck. There is nothing on record to show that his neurological deficiencies could have caused insanity. 16. What crystallizes from the above discussion is that the accused-appellant was proved, beyond reasonable doubt, to have assaulted Bhajan Lodh by means of a dao on his head and neck. The multiple injuries, which were caused by the accused-appellant on the person of Bhajan Lodh, were caused by as lethal a weapon as dao, and that the weapon inflicted fetal injuries on vital parts of the body, such as head and neck. 17. Coupled with the four wounds, sustained by Bhajan Lodh, the blows, given by the dao, almost severed the neck of Bhajan Lodh leaving no room for doubt that the accused intended to cause Bhajan Lodh's death and he indeed succeeded in achieving what he intended to. 18. Situated thus, we do not find that the conviction of the accused-appellant, for offence under Section 302 IPC, suffers from any infirmity, legal or factual. 19. Because of what have been discussed and pointed out above, we find no merit in this appeal. This appeal, therefore, fails and the same shall accordingly stand dismissed. 20. Let the learned Amicus Curiae be paid a sum of Rs. 5000/- for his valuable assistance rendered to the Court. Send back the L.C. records. Appeal dismissed.