Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 114 (GAU)

Budheswar Garh 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 29.7.2005, passed by the learned Additional Sessions Judge, Sibsagar, in Sessions Case No. 153(S-C) of 2004 under Sections 302/201 of the Indian Penal Code (for short 'IPC'). By the impugned judgment and order, the learned Additional Sessions Judge, convicted the appellant under Sections 302/201 IPC, and sentenced him to suffer rigorous imprisonment for life and pay fine of Rs. 5000/-, in default, suffer rigorous imprisonment for another period of six months, for his conviction under Section 302 IPC. The learned Additional Sessions Judge also sentenced the appellant to suffer rigorous imprisonment for two years and pay fine of Rs. 2000/-, in default, suffer rigorous imprisonment for another period of two months for his conviction under section 201 IPC. 2. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this appeal. 3. We have heard Mr. R.M. Choudhury, learned Amicus Curiae, appearing for the appellant and Mr. D. Das, learned Addl. Public Prosecutor, appearing for the State respondent. 4. The prosecution case, in brief, is that, on 18.12.2003, at about 6-30 p.m., the appellant killed Smti Maya Satnami, (hereafter referred to as the 'deceased') in her courtyard by giving cut blows with an axe on her neck. Sri Meghnath Satnami, son of the deceased, coming to know about the said occurrence, lodged an FIR (Ext. 1) with the Officer-in-Charge, Sapekhati Police Station. 5. On receipt of the said FIR, police registered a case under Sections 302/201 IPC and launched investigation into the matter. During the investigation, police visited the place of occurrence, prepared the inquest report(Ext.2), recovered the detached head of the dead body of the deceased, seized a blood stained axe vide seizure list (Ext.5), forwarded the dead body for postmortem examination, examined the witnesses and arrested the accused person. At the close of the investigation, police submitted charge-sheet (Ext.9) under Sections 302/201 IPC against the appellant. 6. The case being committed to the Court of Sessions, the learned Additional Sessions Judge, framed charges under Sections 302/201 IPC. The charges were read over and explained to the appellant, to which, he pleaded not guilty and claimed to be tried. 7. At the close of the investigation, police submitted charge-sheet (Ext.9) under Sections 302/201 IPC against the appellant. 6. The case being committed to the Court of Sessions, the learned Additional Sessions Judge, framed charges under Sections 302/201 IPC. The charges were read over and explained to the appellant, to which, he pleaded not guilty and claimed to be tried. 7. The prosecution examined as many as eight witnesses, including the Medical Officer (PW6), who performed the autopsy of the dead body, the Investigating Officer (PW7), the learned Judicial Magistrate, who recorded the statement of PW3 under section 164 Cr.P.C. 8. After examination of prosecution witnesses, the learned trial Judge examined the appellant under Section 313 Cr.P.C. 9. In his statement, made under Section 313 Cr.P.C., the appellant, supporting the evidence of eye witness (PW3) admitted that he had dealt cut blows on the neck of the deceased with an axe. The appellant declined to adduced any defence evidence. 10. Considering the evidence on record, the learned Trial Judge convicted and sentenced the appellant as indicated above. 11. Mr. Choudhury, learned Amicus Curiae, appearing for the appellant, has submitted that, except the evidence of PW3, there is no other supporting evidence to show that, the appellant had caused the death of the deceased and as such, the learned trial Judge committed error by recording his conviction without sufficient corroboration. The learned Amicus Curiae has submitted that, the prosecution failed to prove, beyond all reasonable doubt, that the appellant caused the death of the deceased and as such, the appellant is entitled to be acquitted on benefit of doubt. 12. Refuting the said argument, advanced by the learned Amicus Curiae, Mr. D Das, learned Addl. Public Prosecutor, referring to the evidence, on record, and the statement of the accused person, made under Section 313 Cr.P.C., has submitted that, the unimpeachable evidence, given by the eye witness (PW3), coupled with the admission, made by the accused person in his statement under Section 313 Cr.P.C., leaves no room for any doubt that none, except the appellant had caused the death of the deceased and as such, the prosecution could successfully prove that the appellant caused the death of the deceased. 13. 13. Having heard the learned counsel for both the parties and considering the materials on record, we find that the conviction of the appellant is based on the evidence of the eye witness i.e. PW3, and the admission, made by the appellant under Section 313 Cr.P.C. 14. Sri Medhnath Satnami (PW1), son of the deceased, lodged the FIR as informant. He did not see the occurrence. Coming to know about the incident, he, along with his maternal uncle (PW2) rushed to his house and found the headless dead body of his mother, lying in their courtyard. He has exhibited the FIR, lodged by him, as Ext. 1. He further stated that the police, following the trail of blood, recovered the severed head of his mother from the kitchen of a mad person. Supporting the evidence of PW1, PW2 i.e. the maternal uncle of PW1, stated that, he along with PW1 rushed to the house of the deceased and found the headless dead body of the deceased, lying in her courtyard. He also stated that, the severed head of the deceased was found in the house of a mad person. 15. Supporting the evidence of PW1 and PW2, Mr. Swapan Deb (PW4) and Kamal Chakravorty (PW5), stated that, the severed head of the deceased was found in the house of a mad person. Both of the said witnesses appeared in the place of occurrence after the incident. 16. Dr. Diganta Kr Das, who deposed as PW6, performed the autopsy of the dead body. He opined that the dead body and the detached head belonged to the same person. He has exhibited the postmortem examination as Ext.7. From the above evidence, it has been clearly established that the death of the deceased was caused by severing her head from the neck at the level of 4th cervical vertebrae by incise cut injury. Now, the question is to who had caused the death of the deceased by severing her head. 17. Sri Pradip Dutta, who deposed as PW3, is the eye witness to the occurrence. He stated that, on the date of occurrence, he went to the house of the deceased to pay her money as the price of a piece of cloth and coconut, which he brought from the deceased. 17. Sri Pradip Dutta, who deposed as PW3, is the eye witness to the occurrence. He stated that, on the date of occurrence, he went to the house of the deceased to pay her money as the price of a piece of cloth and coconut, which he brought from the deceased. He stated that, immediately, prior to the occurrence, the deceased was offering prayer to a Tulsi tree' (Basel plant) in her courtyard and that, the appellant, being armed with an axe, had dealt cut blows on her neck. According to this witness, he returned home raising alarm. He further stated that, he made statement under Section 164 Cr.P.C., before the Magistrate. He has exhibited his statement as Ext.6 and his signature thereon as Ext.6(1). 18. From the above, it is found that the PW3 was an eye witness to the occurrence and saw the appellant giving dao blow on the neck of the deceased. Though, this witness was duly cross examined, on behalf of the defence, no contradiction or discrepancy could be elicited to demolish his evidence, aforesaid. There is nothing on record, to show that, this witness had any grudge or interest to falsely implicate the appellant. Therefore, we find sufficient force in the evidence of PW3 to believe that the appellant had caused the death of the deceased by giving blow on her neck with an axe. 19. That apart, the appellant, in his statement under Section 313 Cr.P.C., has clearly admitted that, he had given the fatal blow on the neck of the deceased with an axe. The said admission on the part of the appellant lends sufficient corroboration in favour of the evidence of the eye witness aforesaid. Therefore, the undiminished evidence of the sole eye witness aforesaid, who is told to be an independent witness without any bias against the appellant can be the basis for conviction. Admittedly, the deceased died due to the said cut injury resulting in detaching of the head from the trunk of the body. 20. In view of the above, we have no hesitation in holding that, the appellant had caused the death of the deceased by severing her head. Therefore, the learned trail Judge committed no error by convicting the appellant under Section 302 IPC and recording the sentence thereon. 21. 20. In view of the above, we have no hesitation in holding that, the appellant had caused the death of the deceased by severing her head. Therefore, the learned trail Judge committed no error by convicting the appellant under Section 302 IPC and recording the sentence thereon. 21. The appellant has also been convicted under Section 201 IPC, i.e. for causing disappearance of evidence of offence. As revealed from the evidence of the prosecution witnesses aforesaid, the severed head of the deceased was not found along with the dead body and the same was found in the house of another person. According to PW1, PW2, PW4 and PW5, the head of the deceased was found in the house of a mad person. The Investigating Officer (PW7), in his evidence, stated that, after making search for the severed head, he found the same in an oven, in the house of a neighbour. There is nothing, on record, to show that the deceased had kept the severed head and concealed the same with an intention of screening himself from legal punishment. Therefore, it cannot be safely held that the appellant caused disappearance of the severed head of the deceased from the place of occurrence. 22. In order to hold a person guilty of the offence under Section 201 IPC, the ingredients to be established are– (i) committal of an offence; (ii) person charged with the offence under Section 201 must have the knowledge or reason to believe that an offence has been committed; (iii) person charted with the said offence should have caused disappearance of evidence and (iv) the act should have been done with the intention of screening the offender from legal punishment or with that intention he should have given information respecting the offence, which he knew or believed to be false-Sukhram Vs. State of Maharashtra (2007) 7 SCC 502 . 23. Considering the evidence on record as revealed by the prosecution witnesses, we do not find it safe to hold that the appellant caused disappearance of the severed head with an intention of screening himself from legal punishment. We are not inclined to hold that the prosecution failed to establish, beyond all reasonable doubt, that the appellant committed the offence under Section 201 IPC. Therefore, the conviction and sentence recorded under Section 201 IPC, cannot be maintained and accordingly, the same is set aside. 24. We are not inclined to hold that the prosecution failed to establish, beyond all reasonable doubt, that the appellant committed the offence under Section 201 IPC. Therefore, the conviction and sentence recorded under Section 201 IPC, cannot be maintained and accordingly, the same is set aside. 24. In the light of the above discussion, while upholding the conviction and sentence under Section 302 IPC, recorded against the appellant, the conviction and sentence under section 201 IPC is set aside. 25. With the above modification, this appeal is partly allowed. Return the LCRs. We record our appreciation for the assistance rendered by Mr. RM Choudhury, learned Amicus Curiae and we direct payment of Rs. 3500/-, as his remuneration, by the Assam Legal Services Authority.