C.R. Sarma, J.— This appeal is directed against the judgment and order, dated.23 05.2008, passed by the learned Additional Sessions Judge, Dibrugarh, in Sessions Case No.85/2006. By the impug ned judgment and order, the learned Sessions Judge convicted Shri Raju Kherua (herein after called the appellant) under Section 302 of the Indian Penal Code (in short, the IPC) for committing the murder of Punu Kheruar (herein after called the deceased) and accord ingly sentenced him to suffer rigorous impriso nment for life and pay fine of Rs. 500/-, in default suffer rigorous imprisonment for another period of 2 (two) months for his conviction under Section 302 IPC. 2. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come with this appeal. 3. We have heard Mr. R.K. Adhikari, learned amicus curiae, appearing for the appellant. Also heard Mr. K.A. Mazudmar, learned Additional Public Prosecutor, appearing for the State-respondent. 4. The prosecution case, in brief, as revealed during the trial, is that on the intervening night of 01.01.2006 and 02.01.2006 at about 2.00 a.m. the appellant caused the death of the deceased by inflicting cut blows on his neck. Accordingly, Shri Ganesh Kherua, brother of the deceased lodged FIR (Ext. 1) with the Officer-in-Charge, Naharkatia Police Station, which was registered as Naharkatia P.S. Case No. 01/2006 under Section 302 IPC. During the investigation, police visited the place of occurrence and found the dead body of the deceased lying there, prepared inquest report vide Ext. 2, recorded the statement of the witnesses, sent the dead body of the deceased for post-mortem examination, arrested the accused person and forwarded him to the court for recording his statement. During the investigation, police also seized a dao vide seizure list (Ext. 3) from a drain of a garden. At the close of investigation, police submitted charge sheet, under Section 302 IPC, against the appellant. 5. The offence, being exclusively triable by the court of sessions. The learned Chief Judicial Magistrate, Dibrugarh committed the case to the court of Sessions and accordingly, the learned Sessions Judge framed charge under Section 302 IPC against the appellant. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed to be tried.
The offence, being exclusively triable by the court of sessions. The learned Chief Judicial Magistrate, Dibrugarh committed the case to the court of Sessions and accordingly, the learned Sessions Judge framed charge under Section 302 IPC against the appellant. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. In order to prove their case, prosecution examined as many as 9 (nine) witnesses including the medical officer (PW 7), who performed the autopsy and the investigating officers (PWs 8 and 9). 6. Smti Damayanti Kherua (PW 6) made statement under Section 164 of the Code of Criminal Procedure (in short "Cr. P.C.") before the learned Magistrate. In order to prove her said statement (Ext. 6), Shri Rajib Konwar, Bench Assistant of the learned Magistrate has been examined as C. W. No. 1. At the close of the evidence for the prosecution, the accused person was examined under Section 313 CrPC. He denied the allegations, brought against him and declined to adduce defence witness. 7. Mr. R. K. Adhikari, learned amicus curiae, appearing for the appellant, has submitted that the prosecution failed to adduce sufficient, cogent and reliable evidence to substantiate the allegations, brought against the appellant and as such the learned trial Judge committed error by convicting and sentencing the appellant. The learned amicus curiae has also submitted that the single blow, sustained by the deceased, does not conclu sively substantiate that the appellant had the intention to cause the death of the deceased and as such his conviction and sentence under Section 302 IPC is not maintainable. 8. Refuting the said arguments, advanced by Mr. R.K. Adhikari, the learned amicus curiae appearing for the appelant; Mr. K.A. Mazumdar, learned Additional Public Prosecutor, appearing for the State respon dent, has submitted, that there is sufficient, cogent and reliable evidence rendered by the eyewitnesses i.e. PW Nos. 1 and 2, and the fact that the appellant had given a dao blow with a sharp cutting weapon, on the neck of the deceased affecting the third cervical vertebra and spinal cord sufficiently indicate that the appellant had inflicted the fatal blow on such vital part of the deceased with intention to cause the death of the victim.
1 and 2, and the fact that the appellant had given a dao blow with a sharp cutting weapon, on the neck of the deceased affecting the third cervical vertebra and spinal cord sufficiently indicate that the appellant had inflicted the fatal blow on such vital part of the deceased with intention to cause the death of the victim. Therefore, it is submitted, by the learned Public Prosecutor, that the learned trial Judge committed no error by convicting and sentencing the appellant and that he rightly came to the findings that the appellant had caused the murder of the deceased. Therefore, it is contended that the conviction and the sentence aforesaid do not warrant any interference. 9. From the FIR (Ext. 1), it is found that the occurrence took place on the intervening night of 01.01.2006 and 02.01.2006 at 2.00 a.m. and on the same day i-.e. on 02.01.2006 at about 9.00 a.m., the investigating officer (PW -8), after receipt of the FIR, visited the place of occurrence, and found the dead body of the deceased lying in the place of occur rence itself. The inquest report (Ext. 2) reveals that the dead body of the deceased was lying in his courtyard with a deep cut injury on the left side of the neck. The medical officer (P W-7), who performed the post-mortem exami nation, on the next day i.e. on 03.01.2006 found the following single injury on the body of the deceased: "1. One incised wound measuring 9x5 cm which incised the 3rd cervical vertebra -spinal cord present on the left lateral side of the neck directed downwards and forwards." The said medical officer opined that the deceased died due to shock and haemorrhage as a result of the said injury, sustained by him, which was ante mortem caused by heavy sharp cutting weapon and homicidal in nature. 10. From the above evidence, it has been clearly established that the deceased died due to injury sustained, by him on the neck. Now the question is as to who had caused the fatal injury. Shri Ganesh Kherua (P W-1) lodged the FIR (Ext. 1) with the police. In the FIR as well as the evidence given by PW 1 it has been clearly stated that the appellant had inflicted the cut blow on the neck of the deceased, as a result of which the deceased died on the spot.
Shri Ganesh Kherua (P W-1) lodged the FIR (Ext. 1) with the police. In the FIR as well as the evidence given by PW 1 it has been clearly stated that the appellant had inflicted the cut blow on the neck of the deceased, as a result of which the deceased died on the spot. P W 1, in his evidence, stated that, just prior to the incident, the deceased was talking with Smti Damayanti Kherua (P W 6), who was the mother of the appellant in their gateway and in the meantime, the appellant had inflicted the fatal injury on the deceased. He has exhibited the FIR as Ext. 1 and his signature thereon as Ext 1 (1). He has also exhibited the inquest report as Ext. 2 and his signature thereon as Ext. 2(1). This witness was cross-examined on behalf of the defence. He denied the suggestion that he could not see the occurrence due to darkness. From the cross-examination of this witness, no material contradiction could be elicited to render his evidence dis-believable. There is nothing on record to show that PW 1 had any adverse intention or grudge to falsely implicate the appellant in this case. Therefore, we find no reason to disbelieve the evidence, rendered by the said eyewitness. 11. Smti Putuli Kheruwa, wife of the deceased deposing as PW-2, stated that hearing hue and cry, she went out of her house and saw the accused running away from the place of occurrence, after inflicting cut blows on her husband. She was also a witness to the inquest report. She further stated that the police had seized the dao vide Ext. 3 from the place of occurrence. The seizure of the dao has been substantiated by the evidence rendered by the investigating officer (PW -9), who stated that he had seized a dao from a drain, near the place of occurrence. She also stated that her husband was assaulted on the gateway of the house. In her cross examination this witness stated that, coming out from her house, she did not see Raju Kheruwa i.e. the appellant but saw Shri Ganesh Kheruwa and the mother of Raju Kheruwa i.e. the appellant.
She also stated that her husband was assaulted on the gateway of the house. In her cross examination this witness stated that, coming out from her house, she did not see Raju Kheruwa i.e. the appellant but saw Shri Ganesh Kheruwa and the mother of Raju Kheruwa i.e. the appellant. Her evidence that she did not see the appellant alongwith his mother and Ganesh Kheruwa in the place of occurrence, does not imply that she did not see the appellant running away from the place of occurrence. No suggestion was also put to her denying her specific evidence that she had seen the appellant running away. That apart, PW 1 also stated that the mother of the appellant, with whom the deceased was talking, just prior to the incident, was there. Contradictory evidence raises doubt about the prosecution version. Therefore, there is sufficient corroboration in the evidence of PW 1 and PW 2, which inspire confidence to believe that P W 1 had seen the occurrence. 12. Shri Binod Kherua deposing as PW 3, stated that hearing hue and cry about the incident, he rushed to the place of occurrence. Shri Lakhiram Murai (PW 5) stated that he appeared in the place of occurrence after the incident. He was a witness to the seizure of dao. The said witness did not see the occurrence. 13. Shri Harun Kherua, deposing as PW 5, stated that he appeared in the place of occurrence, on the next morning and found the dead body of the deceased lying there. He did not see the incident. PW 6 Smti Mamayanti Kherua also stated that she did not see the incident. 14. Shri Dhaniram Sonowal (PW 8) S.I. of police, launched investigation into the matter and, almost, completed the investigation. P W -9 (Shri Prafulla Bania), another Sub-Inspector of police completed the remaining part of the investigation and submitted charge sheet against the appellant. 15. Carefully perusing the entire evidence, on record, we find no material contradiction, in respect of the evidence given by the sole eye witness, i.e. PW 1, could be elicited. Though Smti Domayanti Kherua (PW-6) made statement under Section 164 Cr. P.C. before the learned Magistrate, she did not specifically implicate the appellant.
15. Carefully perusing the entire evidence, on record, we find no material contradiction, in respect of the evidence given by the sole eye witness, i.e. PW 1, could be elicited. Though Smti Domayanti Kherua (PW-6) made statement under Section 164 Cr. P.C. before the learned Magistrate, she did not specifically implicate the appellant. In her statement she stated that while she and the deceased were talking near their gate in the courtyard of the deceased, some one from behind had inflicted the injury. As she was the mother of the appellant, her refusal to implicate her son, even if she had seen the later inflicting the fatal blow is not unnatural. 16. In view of the above and considering the forceful evidence given by the eyewitness (PW 1), we have no difficulty in holding that the prosecution could establish, beyond all reasonable doubt, that the appellant had inflicted the fatal blow. From the evidence rendered by the eye witness i.e. PW 1, the inquest report Ext. 2 and the medical evidence, it has been clearly established that the injury was inflicted with sharp cutting weapon on the vital part i.e. neck affecting third cervical vertebra and spinal cord. The fact that the said fatal blow being inflicted on the vital part that too with a heavy sharp cutting weapon clearly indicates that the assailant i.e. the appellant gave the blow with the intention of causing death or with the intention that the injury inflicted was likely to cause the death. There is nothing on record to show that the appellant was either provoked to commit the said crime or there was any compelling circumstances prompting him to inflict the fatal blow. The circumstance, revealed by the un-demolished evidence of the eye witness i.e. PW-1 indicates that the said blow was straight way inflicted on the neck of the deceased by the appellant, who was armed with a dao. Therefore, the act committed by the appellant does not fall under any of the exceptions prescribed by Section 300 IPC. 17. In view of what has been discussed above, there is no difficulty in understanding that the appellant had inflicted the fatal blow with pre-meditation or intention of causing death of the deceased.
Therefore, the act committed by the appellant does not fall under any of the exceptions prescribed by Section 300 IPC. 17. In view of what has been discussed above, there is no difficulty in understanding that the appellant had inflicted the fatal blow with pre-meditation or intention of causing death of the deceased. Therefore, in our considered opinion, the learned trial Judge committed no error by holding the appellant guilty of the offence of committing murder and as such the learned trial Judge has rightly convicted the appellant under Section 302 IPC. Hence, we find no merit in this appeal requiring interference. Accordingly, the appeal is dismissed and the impugned conviction and sentence are upheld. 18. For the sake of brevity, without repeating the discussions made in the Criminal Appeal No.93(J)/2005 (disposed of on 22.12.2011), with regard to the victim compensation, as provided by Section 357 (A) CrPC, we make the following directions: (1) As an interim relief, and without prejudice to the right of the dependants of the victim to claim higher amount, an amount of Rs.50,000/- be deposited by the State Government with the District Legal Services Authority of Dibrugarh District within a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependant(s), who suffered loss and injury as a result of death of the deceased and also if such dependent(s) or legal representative(s) need any rehabilitation." (2) Upon such enquiry, if it is found that the dependent(s), if any, need rehabili tation, 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. It is made clear that if the District Legal Servi ces Authority, after due enquiry, arrive at the findings that there is no dependent(s) or that the dependent(s) of the deceased/victim does not require any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs. 50,000/-, without delay, in favour of the State Government. 19. With the above observations, directi ons and modifications, the appeal is dismissed. 20. Return the LCRs. 21. We acknowledge, with appreciation, the assistance rendered by Mr. Rajesh Kumar Adhikari, learned amicus curiae and direct that an amount of Rs.
50,000/-, without delay, in favour of the State Government. 19. With the above observations, directi ons and modifications, the appeal is dismissed. 20. Return the LCRs. 21. We acknowledge, with appreciation, the assistance rendered by Mr. Rajesh Kumar Adhikari, learned amicus curiae and direct that an amount of Rs. 5000/- (Rupees five thousand) only be paid to him as his remuneration, by the State Legal Services Authority. _____________