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2012 DIGILAW 232 (GAU)

Jogeshwar Gogoi v. State of Assam

2012-02-21

ADARSH KUMAR GOEL, C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. By this appeal, the appellant has challenged the judgment and order, dated 28.02.2005, passed by the learned Sessions Judge, Sibsagar, in Sessions Case No. 6(S-S)/2004, arising out of G.R. Case No. 394/2002 (Gelekey P.S. Case No. 26/2002), under Section 302, IPC. By the impugned judgment and order, the learned Sessions Judge convicted the appellant, Shri Jogeswar Gogoi, under Section 302 of the Indian Penal Code (tor short, the 'IPC') and sentenced him to suffer imprisonment for life and pay fine of Rs. 2,000/- (Rupees two 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. P.K. Talukdar, learned Amicus Curiae, appearing for the appellant and Mr. Z. Kamar, learned Public Prosecutor, appearing for the State respondent. 3. The prosecution case, in brief, is that, on 20.04.2002 at about 6.00 a.m., the appellant killed his wife, Smti Maya Gogoi (in short the, "deceased) by inflicting cut injuries on her neck with dao in their house and thereafter appeared in the Police Station, alongwith a blood stained dao, riding a bi-cycle. The appellant, in the Police Station, disclosed that he had killed his wife with the said dao. Accordingly, Police took him into the custody and sent to Gelekey Hospital for his examination. After a G.D. Entry No. 407 (Ext. No. 6), dated 20.04.2002, the Officer-in-Charge of the Gelekey Police Station entrusted Shri Samarendra Basumatary (PW 13) with the investigation of this case. Accordingly, during investigation, the said Investigating Officer (I.O.) seized the dao vide Ext. No. 4, visited the place of occurrence, prepared inquest report (Ext. No. 1), received a written ejahar (Ext. No. 2) from Shri Prem Gogoi and forwarded the dead body for post mortem examination. The I.O. seized the bi-cycle, used by the appellant vide, Ext. No. 3 and examined the prosecution witness. 4. At the close of investigation, Police submitted the charge-sheet, under Section 302, IPC, against the appellant. The offence being exclusively triable by the Court of Sessions and upon commitment of the case, the learned Sessions Judge, Sivsagar, framed the charge under Section 302, IPC, to which the accused pleaded not guilty and claimed to be tried. 5. 4. At the close of investigation, Police submitted the charge-sheet, under Section 302, IPC, against the appellant. The offence being exclusively triable by the Court of Sessions and upon commitment of the case, the learned Sessions Judge, Sivsagar, framed the charge under Section 302, IPC, to which the accused pleaded not guilty and claimed to be tried. 5. The prosecution examined as many as 13 (thirteen) witnesses including the Medical Officer (PW 12), who performed the autopsy in respect of the dead body of the deceased and the Investigating Officer (PW 13), who prepared the inquest report (Ext. 1). After examination of the prosecution witnesses, the accused person was examined under Section 313 of the Code of Criminal Procedure (in short, the Cr PC), he denied the allegations, brought against him and examined one defence witness as DW-1. The plea of the appellant was that the prosecution witnesses had falsely implicated him and that he was innocent. DW 1 was examined to show that on the date of occurrence, the appellant was engaged by DW-1 and he was all along with him. Considering the evidence on record, the learned trial Judge convicted and sentenced the accused-appellant, as indicated above. 6. Mr. P.K. Talukdar, learned Amicus Curiae, appearing for the appellant has submitted that there is no direct evidence against the appellant and that the learned trial Judge committed error by holding the appellant guilty of the offence under Section 302 of the IPC, only on the basis of suspicion and that the impugned conviction and sentence cannot be maintained for want of sufficient substantive evidence. 7. Mr. Z. Kamar, learned Public Prosecutor, supporting the impugned conviction and sentence, has submitted that the convicted person i.e. the appellant and the deceased, being the husband and wife, used to live in the same house and that the deceased was found dead in their house. In view of the above, the learned Public Prosecutor has submitted that, under the provision of Section 106 of the Evidence Act, it was the burden of the appellant to explain as to under what circumstances his wife had sustained fatal injuries on her neck, resulting her death. In view of the above, the learned Public Prosecutor has submitted that, under the provision of Section 106 of the Evidence Act, it was the burden of the appellant to explain as to under what circumstances his wife had sustained fatal injuries on her neck, resulting her death. It is also submitted that the said circumstance, coupled with the fact that the appellant had surrendered in the Police Station with a blood stained dao, sufficiently supports the prosecution version that the appellant had caused the death of his wife. 8. In order to appreciate the counter arguments advanced by the Learned Counsel, appearing for the parties, and examine the correctness of the impugned judgment and order, we feel it appropriate to, briefly, scan the evidence on record. 9. Admittedly, there is no dispute regarding the death of the deceased. PW 12 did the post mortem examination, in respect of the dead body of the deceased and he found the following injuries : One large incised wound present on the neck posteriorly near the root with only tag of skin present anteriorly. Cranium & Spinal Canal : The wound had declet. Bodies of cervical vertebrae No. 3, 4 & 5 obliquely and directing all vital structure of the neck. The injuries are ante mortem homicidal in nature and caused by sharp cutting weapon. Such sort of injuries may be caused by material Ext. 1 (on being shown), (the order under objection from defence). The injury mentioned above is sufficient to cause death of a person in ordinary course of nature. In my opinion the cause of death of the deceased was due to shock and hemorrhage as a result of injury sustained by the deceased. Ext. 5 is the p.m. report prepared by me. Ext. 5(1) is my signature with seal. The said evidence given by PW 12 remained unchallenged. Therefore, it has been established that the deceased sustained incised wound on her neck and she died due to said injury. 10. PW 13, who was the Investigating Officer conducted the enquiry and prepared inquest report. He exhibited the same as Ext. No. 1. After preparing the inquest report, the I.O. had sent the dead body of the deceased for post-mortem examination. The inquest report (Ext. 1) reveals that the dead body of the deceased was found lying with cut injuries on her heck. He exhibited the same as Ext. No. 1. After preparing the inquest report, the I.O. had sent the dead body of the deceased for post-mortem examination. The inquest report (Ext. 1) reveals that the dead body of the deceased was found lying with cut injuries on her heck. The contentions made in the said inquest report has not been controverted by the defence. 11. Shri Ananta Gogoi, who deposed as PW 1, stated that on being informed by the brother of the appellant regarding death of the deceased, he visited the place of occurrence and found the deceased lying dead with bleeding injuries, in her kitchen. He stated that the appellant had left the house for the purpose of surrendering to the Police Station. He was a witness to the inquest report aforesaid. 12. In tune with the evidence of PW 1, Shri Prabhat Gogoi (PW 2), Shri Tankes-war Phukan (PW 4), Shri Premo Gogoi (PW 5) stated that having heard about the incident, they rushed to the place of occurrence and found the dead body of the deceased, lying in injured condition. 13. From the evidence of said witnesses, coupled with the medical evidence, as indicated above, it has been clearly established that the deceased sustained cut injuries on her neck and she succumbed to the said injuries. 14. Now the question is as to who had caused the death of the deceased. There is no dispute that the deceased was the wife of the appellant and the said couple used to live together in their house i.e. the place where the dead body of the deceased was found in injured condition. The dead body was lying alone and the appellant was not available rear the dead body, immediately after the occurrence. There is nothing on record to show that any other person had entered the house of the said couple at the time of occurrence. Therefore, there is no difficulty in understanding that the deceased, till her death, was in the company of her husband i.e. the accused-appellant. 15. Shri Dev Morang, a defence witness deposing as DW-1 stated that he used to visit Nagaland in connection with his coal business during the year 2002 and that the appellant was working with him, on daily wage basis. He further stated that, on the date of occurrence, he was in Nagaland and the accused also accompanied with him. 15. Shri Dev Morang, a defence witness deposing as DW-1 stated that he used to visit Nagaland in connection with his coal business during the year 2002 and that the appellant was working with him, on daily wage basis. He further stated that, on the date of occurrence, he was in Nagaland and the accused also accompanied with him. According to the said DW1, the appellant came home after receipt of the information regarding the said incident. 16. The appellant in his statement, recorded under Section 313, Cr PC, made no whisper that he used to work under DW 1 and that, on the relevant date, he was not available in his house i.e. the place of occurrence. We find no corroboration in the evidence of DW 1 to believe that the appellant went to Naga Hills with the said DW 1 on the date of occurrence and that he returned home after receiving the information regarding the said occurrence. 17. PW Nos. 3, 4, 5, 6, 7 and 9 declined to support the prosecution version that the appellant had inflicted the cut injuries on his wife and as such the said witnesses were declared hostile and cross-examined by the prosecution. However, no sustentative evidence, indicating involvement of the appellant, could be elicited from the cross-examination of the said witnesses. 18. PW 8, a police constable of Gelekey Police Station, deposed that on 20.04.2002 at about 6.00/7.00 a.m. he was present in the police station alongwith Shri Samarendra Basumatary (PW 13) i.e., I.O. This witness stated that the appellant arrived at police station with a blood stained dao in his hand riding a bi-cycle and informed the PW 13 (I.O.) that he had cut his wife with dao. According to this witness, the said dao was seized in the police station. He exhibited his signature in the seizure list as Ext. 4(1). This witness also exhibited the material Ext. Nos. 1 and 2 respectively. This witness was duly cross-examined on behalf of the defence. No contradiction could be elicited to render his said evidence, negating seizure of dao, disbelievable. His evidence that the appellant had appeared in the Police Station with dao and chisel has been corroborated by the I.O. (PW 13). This witness also exhibited the material Ext. Nos. 1 and 2 respectively. This witness was duly cross-examined on behalf of the defence. No contradiction could be elicited to render his said evidence, negating seizure of dao, disbelievable. His evidence that the appellant had appeared in the Police Station with dao and chisel has been corroborated by the I.O. (PW 13). The I.O. stated that he seized the dao and chisel from the accused, on 20.04.2002 and sent him to the hospital for treatment in respect of the injury, sustained by him, on his neck. 19. The evidence of PW Nos. 8 and 13 regarding the seizure of dao and chisel, from the appellant remained un-challenged. The I.O. further stated that he had also seized the bi-cycle, used by the appellant for coming to the police station vide Ext. No. 3. The I.O. stated that the said bi-cycle belonged to one Shri Ratan Gogoi (PW 6) and that the same was taken by the appellant from PW 6. PW 8 also stated that the appellant arrived at the Police Station riding a bi-cycle on 20.04.2002. 20. Supporting the evidence of PW Nos. 8 and 12, Shri Ratan Gogoi (PW 6) stated that, on the date of occurrence, while he was proceeding to market, the appellant took his bi-cycle and rode to the police station. He also stated that the accused had carried a bag with him. According to this witness, following the accused, he also proceeded to the police station and found that his bi- cycle was seized by the police. He has exhibited the seizure list (Ext. 3) and his signature as Ext. 3(1). He further stated that the police had given him the bi-cycle, in his custody, after taking his statement. Though, this witness was duly cross-examined on behalf of the defence, no contradiction regarding taking of bi-cycle from his possession and finding of the same in the police station could be elicited. 21. Supporting the evidence of PW 6, Md. Mukut Ali deposing as PW 7 stated that the appellant had taken the bi-cycle of PW 6 for going to the police station and that the appellant had gone to police station, with a bag, riding the said bi-cycle. He further stated that subsequently, he alongwith PW 6 went to the police station and found that police had seized the bicycle. He further stated that subsequently, he alongwith PW 6 went to the police station and found that police had seized the bicycle. The evidence of this witness regarding taking of the bicycle by the appellant for going to the police station, on the date of occurrence and finding of the bicycle in the police station remained un-challenged. 22. From the above-discussed evidence, it is found that there is sufficient corroboration in the evidence of PW Nos. 6, 7, 8 and 12 to believe that the appellant, after committing the crime, appeared in the police station with a blood stained dao. The seizure of the dao from the appellant, in the police station after the occurrence, coupled with the evidence that the deceased sustained cut injuries on her neck safely lead to conclusion that the appellant had caused the said injuries resulting death of the deceased. 23. We have already noticed that none other than the appellant used to live with the deceased in their house. From the evidence of PW Nos. 6 and 7, it appears that the appellant proceeded to the police station after the said incident. The I.O. (PW 13) and PW 8 clearly stated that the blood stained dao was seized from the appellant in the police station. Therefore, the evidence of DW 1 that the appellant accompanied him, on the date of occurrence is not believable. 24. In view of the provisions prescribed by Section 106 of the Evidence Act, as the said couple i.e. the appellant and the deceased used to live together in the same house, wherein the deceased was found lying with cut injuries on her neck, it was the duty of the appellant to explain the circumstances in which she sustained the said injuries. Failure of the appellant to put forward any satisfactory explanation goes against his innocence. 25. Failure of the appellant to put forward any satisfactory explanation goes against his innocence. 25. From the above discussed evidence, it has been clearly found that: (i) on the date and time of occurrence, both the appellant and the deceased lived together in the same house, (ii) the appellant after the occurrence, left the house for the police station, taking a bicycle from PW 6 and carrying something in a bag, (iii) after his appearance in the police station, he produced a blood stained dao with chisel and disclosed that he had cut the neck of his wife with the said dao, (iv) the dao, produced by the appellant and the bicycle, used by him for going to the police station, were seized by the I.O., (v) the deceased was found lying with cut injury on her neck, (vi) she died due to cut injury on the neck, (vii) the injury was caused by a sharp cutting weapon, (viii) it was a homicidal injury, and (ix) the appellant failed to explain the circumstance in which his wife sustained the injury. 26. The said circumstances, which have surfaced from the evidence, on record, clearly lead to the conclusion, forming a complete chain of events indicating that none other than the appellant had caused death of the deceased. There is nothing, on record, to show that the deceased had committed the said crime, on being provoked or in a heat of passion out of quarrel or for self defence etc. The said offence, committed by the appellant, does not come under any of the exceptions, prescribed by Section 300, IPC. The nature and gravity of the offence committed and part of the body on which the injury was inflicted, coupled with the type of weapon used, indicates that the injury was caused with intention to kill the deceased. 27. In view the above, we have no hesitation in holding that the appellant had committed the offence of murder and therefore, in our considered opinion, the learned trial Judge committed no error by recording the conviction and sentence as indicated above. We find no merit in this appeal requiring interference with the impugned conviction and sentence. The appeal fails. 28. Return the LCRs. We acknowledge with appreciation the assistance rendered by Mr. P.K. Talukdar, Learned Counsel as amicus curiae and direct that an amount of Rs. We find no merit in this appeal requiring interference with the impugned conviction and sentence. The appeal fails. 28. Return the LCRs. We acknowledge with appreciation the assistance rendered by Mr. P.K. Talukdar, Learned Counsel as amicus curiae and direct that an amount of Rs. 5,000/- (Rupees five thousand) only be paid to the learned Amicus Curiae as her remuneration by the Assam State Legal Services Authorities. Appeal dismissed.