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2012 DIGILAW 231 (GAU)

Alvish Dungdung v. State of Assam

2012-02-21

ADARSH KUMAR GOEL, C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. The judgment and order, dated 6.10.2005, passed by the learned Sessions Judge, Dibrugarh, in Sessions Case No. 135/2003, is in challenge in this appeal. By the impugned judgment and order, the learned Sessions Judge, held Alvish Dungdung, (hereinafter called as 'appellant') guilty of killing his wife and accordingly, convicted him under Section 302, IPC and sentenced him to suffer rigorous imprisonment for life and pay fine of Rs. 2000/-, in default, suffer simple imprisonment for anther period of one month. Aggrieved, by the impugned judgment and order, the convicted person, as appellant, has come up with this appeal. We have heard Mrs. M. Bujarbaruah, learned Amicus Curiae, appearing for the appellant and Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, appearing for the State respondent. 2. The learned Amicus Curiae, appearing for the appellant, has submitted that the learned Sessions Judge committed error by convicting and sentencing the appellant, without substantive evidence on record. It is submitted that, there is no direct evidence against the appellant and that, the appellant has been convicted only on suspicion. 3. Refuting the said argument, advanced by the learned Amicus Curiae, Mr. Mazumdar, learned Addl. Public Prosecutor, has submitted that there is sufficient, reliable and cogent evidence pointing to the guilt of the appellant, and as such, the learned Sessions Judge, committed no error by convicting and sentencing the appellant, as indicated above. The learned Additional Public Prosecutor has submitted that the extra judicial confession made by the appellant and the convincing circumstance, surfacing from the evidence on record, certainly led to the finding that the appellant assaulted the deceased causing her death. Therefore, it is submitted that, the impugned judgment and order need no interference at this stage. 4. The prosecution case, as revealed, during the trial, is that, on the night of 23.11.2002, the appellant and his wife were living in their house. The appellant caused the death of his wife by assaulting her with a lathi. Hearing the hue and cry, the neighbouring people rushed to the place of occurrence and apprehended the appellant. PW 3, who is the own brother of the appellant, on 24.11.2002, lodged an FIR with the police. On receipt of the said FIR, police registered a case under Section 302, IPC, and launched investigation into the matter. Hearing the hue and cry, the neighbouring people rushed to the place of occurrence and apprehended the appellant. PW 3, who is the own brother of the appellant, on 24.11.2002, lodged an FIR with the police. On receipt of the said FIR, police registered a case under Section 302, IPC, and launched investigation into the matter. During the investigation, police visited the place of occurrence, arrested the accused, seized the lathi (material Ext. 1) produced by the appellant, prepared the inquest report (Ext. 2) in respect of the dead body, sent the dead body for postmortem examination and examined the witnesses. At the close of the investigation, police submitted the charge-sheet under Section 302, IPC, against the accused appellant. The learned Sessions Judge framed charge against the appellant, under Section 302, IPC. The charge was read over and explained to the appellant to which, he pleaded not guilty and claimed to be tried. 5. The prosecution examined as many as nine witnesses including the Medical Officer (PW 8) and the Investigating Police Officer (PW 9). At the close of the evidence of the prosecution, the accused person was examined under Section 313, Cr P.C. The appellant denied the allegations, brought against him and declined to adduce any defence witness. 6. Pleading his complete innocence, the appellant stated that, on the day of the occurrence, he was sleeping, being drunk and that, he did not know as to how his wife died. In view of the above, it is clear that, the said couple, as alleged by the prosecution, were living in the same house on the night of occurrence. Admittedly, the deceased was found dead therein. 7. Dr. RK Gogoi, who performed the postmortem examination, deposing as PW 8, has stated that, he found the following injuries in respect of the deceased : 1. Middle variable size abrasion present on anterior aspect of right leg. 2. Abrasion present in front of left knee joint and lower most part of left 3rd. 3. Both buttocks are swollen and bluish red in colour. On dissection, contusions present in muscles underneath. 4. Small abrasions scattered on back of chest and abdomen. 5. Right fore arm swollen and bluish read in colour. On dissection contusions present in muscles underneath. Examination of cranium and spinal canal : On dissections contusions present in right parietal and right occipital region. Membranes-Congested. Sub-dural hemorrhage present in right side. On dissection, contusions present in muscles underneath. 4. Small abrasions scattered on back of chest and abdomen. 5. Right fore arm swollen and bluish read in colour. On dissection contusions present in muscles underneath. Examination of cranium and spinal canal : On dissections contusions present in right parietal and right occipital region. Membranes-Congested. Sub-dural hemorrhage present in right side. Brain-Contusions present in frontal and both parietal and occipital lobes at places. The brain is congested. The said Medical Officer opined that, the death was caused as a result of the injuries sustained on the head and that, the injuries were ante mortem caused by impact of blunt weapon and homicidal in nature. He also opined that the death was caused 24-30 hours prior to the time of postmortem examination. From the above, it appears that, apart from the injuries sustained on various parts of the body, the deceased sustained injury on her occipital right i.e. on the head. The said medical evidence reveals that the injuries were caused with some blunt weapon. 8. Now, the question is as to who caused the said injury on the deceased, who was in the company of the appellant on the fateful night. There is nothing, on record, to show that any other person had access to the house of the appellant and the deceased on the fateful night. Therefore, it is clearly found that none, except the appellant and the deceased, were in their house on the said night. 9. Therefore, naturally, the appellant was the only person, who had the knowledge as to how the deceased sustained said injuries. In view of the provision prescribed by Section 106 of the Indian Evidence Act, 1872, it is the duty of the appellant to explain the circumstance, under which the deceased sustained the injuries, which appears to be inflicted by human. In the present case, the plea of the appellant is that, he was sleeping being drunk and as such, he had no knowledge about the occurrence. 10. Considering the nature of the injuries sustained by the deceased, during her stay in the company of the appellant, in the same house, the plea of the appellant, that he had no knowledge as to how his wife i.e. the deceased sustained so many injuries, is not acceptable. 10. Considering the nature of the injuries sustained by the deceased, during her stay in the company of the appellant, in the same house, the plea of the appellant, that he had no knowledge as to how his wife i.e. the deceased sustained so many injuries, is not acceptable. As the deceased was in the company of the appellant, till her death, the theory of 'last seen together' would be attracted. That being so, due to the failure of the appellant to properly explain the circumstance under which the deceased sustained the injuries, it can be safely held that none other than the appellant had caused the said injuries resulting the death of the deceased. 11. From the evidence of PW 1, who was a neighbor of the appellant, it is found that, on the night of the occurrence, at about 3 p.m., hearing the hue and cry, he went to the house of the appellant and found that, the appellant was detained by some garden labourers. He also stated that Mr. Havil Urang (PW 3), brother of the appellant and others had informed him that, the appellant had caused the death of his wife by assaulting her with a lathi. This witness further stated that, the appellant had shown the lathi which was used by him and the police had seized the same vide Ext. 1. He has exhibited his signature on the seizure list as Ext. 1(1). This witness was cross-examined by the defence. He denied the suggestion, put to him, on behalf of the defence, that the accused did not produce the lathi before the police. No contradiction or discrepancy could be elicited to render his evidence disbelievable. Therefore, his evidence regarding production of lathi, i.e. the weapon of assault, by the appellant, remained unchallenged. 12. Sri Brisha Bhumiz, the Chowkidar of the garden, deposed as PW 2. He staled that, he had informed the Manager of the garden about the occurrence and that, the police recorded his statement. He was an witness to the inquest report, prepared by the police. He has exhibited the said inquest report as Ext. 2 and his signature thereon as Ext. 2(2). Supporting the evidence of PW 1, this witness also stated that, the police had seized the lathi on being produced by the appellant. He was an witness to the inquest report, prepared by the police. He has exhibited the said inquest report as Ext. 2 and his signature thereon as Ext. 2(2). Supporting the evidence of PW 1, this witness also stated that, the police had seized the lathi on being produced by the appellant. From the uncontroverted evidence of the said two witnesses, it is found that the appellant, himself produced the lathi, which was used by him in assaulting the deceased and accordingly, the police had seized the same vide Ext. 1. Seizure of the said lathi on being produced by the appellant, substantiate the prosecution version regarding involvement of the appellant with the alleged crime. 13. From the Medical Officer, it has also been found that the injuries were caused by a blunt weapon. The lathi being a blunt weapon, and the production of the same by the appellant, makes it abundantly clear that the said lathi was used by the appellant in assaulting his deceased wife. 14. Sri Havil Urang (PW 3) who lodged the FIR, stated that, on the next morning at about 5 am, he visited the house of the appellant and found the deceased lying dead, inside the house. He further stated that, on being asked, the appellant expressed his innocence. This witness was declared hostile by the prosecution. But no other incriminating material could be elicited from his cross-examination. 15. Sri Parlush Barla, who was the brother-in-law of the appellant deposing as PW 4 stated that, on the next morning i.e. at 7 am, he was informed by PW 3 about the death of the deceased. On being so informed, this witness visited the house of the appellant and found the deceased lying dead. He further stated that, the appellant had told him that, he had killed his wife with bamboo stick. No contradiction or omission on the part of PW 4 has been proved through the Investigating Officer (PW 9). The evidence of PW 4 that, the appellant had confessed that he killed his wife by assaulting her with a bamboo stick, remained undemolished. 16. PW 5, Sukra Mura, also stated that he saw the dead body of the deceased lying on the ground and that he did not know as to who had caused her death. The evidence of PW 4 that, the appellant had confessed that he killed his wife by assaulting her with a bamboo stick, remained undemolished. 16. PW 5, Sukra Mura, also stated that he saw the dead body of the deceased lying on the ground and that he did not know as to who had caused her death. Though PW 4 stated that, he was informed by Sukra Mura i.e. PW 5, that the appellant had killed his wife with a bamboo stick, the said PW 5 failed to support the said evidence of PW 4. But PW 4 clearly stated that, the appellant also, himself, told him that, he had killed his wife with a bamboo stick. This evidence of PW 4 remained unchallenged, by the defence. 17. PW 6, Smti Salmi Mura, stated that, she did not know as to who had killed the deceased. 18. PW 7, Anil Paul, who was the scribe of the FIR, exhibiting the FIR as Ext. 3, stated that he had written the same on being requested by Sri Havil Urang i.e. PW 3. 19. From the above discussed evidence, more particularly, the evidence of PW 1 and PW 4, it is found that the appellant had made extra judicial confession stating that, he had killed his wife by assaulting her with a bamboo. 20. In their evidence, the PW 1, PW 2 clearly stated that, the police had seized the bamboo lathi from the place of occurrence, on being produced by the appellant. There is nothing, on record, to show that, the said witnesses had any reason or grudge to falsely implicate the appellant. Therefore, we have no difficulty in believing the evidence of PW 1 and PW 4 that, the appellant had made extra-judicial confession before them. 21. The recovery of the lathi, at the instance of the appellant as the weapon of assault, from the place of occurrence, and the medical evidence that the injuries were caused by blunt weapon i.e. a weapon like a lathi, lend sufficient support in favour of the prosecution version that the appellant had caused the death of the deceased by assaulting her with the said lathi. 22. 22. In view of the above discussion, it has been clearly established from the evidence on record that, on the fateful night of occurrence, the appellant and the deceased were living, in their house, to the exclusion of others. The deceased died due to the injuries caused to her with a blunt weapon, like lathi. The lathi has already been seized from the place of occurrence, at the instance of the appellant and it has been established that the appellant had made extra judicial confession before the witnesses admitting his guilt. 23. The above extra judicial confession and the circumstances that the appellant and deceased lived in the same house, to the exclusion of others, that a lathi (blunt weapon) was seized by the police, on being produced by the appellant, that as per the medical evidence, the injuries were caused by a blunt weapon and the failure of the appellant to explain the circumstance in which his wife sustained the fatal injuries, convincingly surfaced from the evidence rendered by the prosecution witnesses, forms complete chain of events conclusively leading to the guilt of the appellant, to the exclusion of others and inconsistent with his innocence. 24. In view of the above discussed evidence and the attending facts and circumstance, as indicated above, we have no hesitation in holding that the prosecution could establish, beyond all reasonable doubt, that the appellant had killed his wife by assaulting her with a lathi, seized by the police from the place of occurrence. Therefore, in our considered opinion, the learned trial Judge committed no error by recording the conviction and sentence against the appellant as indicated above. Therefore, we find no merit in this appeal requiring interference with the impugned judgment and order. In the result, the appeal fails. Return the LCRs. We record our appreciation of the assistance rendered by the learned Amicus Curiae and direct payment of Rs. 5000/- (Rupees five thousand) only as her remuneration by the Assam State Legal Services Authority. Appeal dismissed.