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2012 DIGILAW 580 (GAU)

Lakhan Rajgarh v. State of Assam

2012-05-09

AMITAVA ROY, PRASANTA KUMAR SAIKIA

body2012
JUDGMENT Amitavaroy, J. 1. The judgment and order dated 1.12.2005, passed by the learned Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 115/2004, convicting the accused-appellant under section 302 of the Indian Penal Code (for short hereafter referred to as the IPC) and sentencing him to suffer rigorous imprisonment for life and also to pay a fine of Rs. 2000/-, in default to suffer further rigorous imprisonment for a period of 3 months, is the subject matter of challenge in the instant appeal. We have heard Mr. D.K. Chomal, learned Amicus Curiae for the accused-appellant and Mr. K.A. Mazumdar, learned Addl. Public Prosecutor Assam. 2. The prosecution was set in motion by the FIR dated 03.02.2004, lodged by one Gajendra Nayak with the Officer-in-Charge of Rangapara Police Out Post, alleging that on 02.02.2004 at about 7/7.30 p.m. the deceased, Grabare Nayak, who was a priest had gone to the house of the accused-appellant, whereafter, the latter killed him by chopping of his head with a dao and an axe. Rangapara PS. Case No. 16/04, under section 302 IPC was registered, and on the culmination of the investigation that followed, a charge sheet was laid against the accused-appellant. The learned trial Court charged him with the offence of murder under section 302 IPC, to which he pleaded "not guilty" and claimed to be tried. The prosecution resultantly examined 8 witness, including the Investigating Officer and the Doctor, who had conducted the autopsy on the dead body. The statement of the accused-appellant under Section 313 Cr.P.C. was recorded. He having declined to adduce any evidence in defence, the verdict, as above, was pronounced. 3. The learned Amicus Curiae has emphatically argued that there being no eyewitness to the incident, the learned trial Court erred in law and on facts in relying on certain stray circumstances to convict the accused appellant and, therefore, the impugned judgment and order is unsustainable and is liable to be interfered with. According to Mr. Chomal, the evidence of PW Nos. 1 & 2 is wholly untrustworthy and, therefore, their version of extrajudicial confession made by the accused-appellant before them admitting his complicity in the crime ought not to have been acted upon. According to Mr. Chomal, the evidence of PW Nos. 1 & 2 is wholly untrustworthy and, therefore, their version of extrajudicial confession made by the accused-appellant before them admitting his complicity in the crime ought not to have been acted upon. Moreover, the statements of these witnesses under section 164 Cr.P.C. having been recorded more than two months of the lodging of the FIR, the learned trial Court ought to have discarded them as unworthy of any credit. The learned Amicus Curiae by drawing our attention to the relevant portions of the evidence of the testimony of PW Nos. 1, 2 & 8 (the Investigating Officer) has maintained that in view of apparent and irreconcilable contradictions and inconsistencies on material particulars, the prosecution case is liable to be rejected in limine. Contending that no explanation is forthcoming for not recording the statement of the accused-appellant, Mr. Chomal has urged that there being no semblance of proof of any blood stain on the floor on which the dead body with the head severed therefrom had been recovered, it is apparent that the accused-appellant was not the perpetrator of the offence. In absence of any motive assigned to him, having regard to the state of the evidence on record, the accused-appellant is entitled to honourably acquitted, he urged. 4. The learned Addl. Public Prosecutor, Assam, in reply, has argued that the evidence of PW 1, Md. Jafar Khan, PW 2, Sri Lalit Gogoi and PW 8, Sri Jibendra Brahma read in conj unction proved the charge against the accused-appellant beyond ail reasonable doubt. As the circumstances noticed and acted upon by the learned trial Court unmistakably point towards the guilt of the accused-appellant, having regard to the medical evidence as well any possible hypothesis of his innocence is ruled out and, therefore, his conviction and sentence as recorded in the impugned judgment and order does not merit any interference. 5. To appropriately appreciate the rival submissions outlined hereinabove, it would be essential to notice the evidence in brief. 6. PW 1, Md. Jafar Khan, who at the relevant time was the VDP Secretary of the concerned village, stated on oath that the accused appellant, one day had come to the house of village Headman, Lalit Gogoi and reported that he had killed one person and accordingly he should be handed over to the police. 6. PW 1, Md. Jafar Khan, who at the relevant time was the VDP Secretary of the concerned village, stated on oath that the accused appellant, one day had come to the house of village Headman, Lalit Gogoi and reported that he had killed one person and accordingly he should be handed over to the police. The witness stated that on being so informed, Sri Lalit Gogoi brought the accused-appellant to his residence, who reiterated the same version before him. According to the witness, the police was informed who was led by the accused-appellant to the place of occurrence, whereafter, he (accused-appellant) himself opened the lock of the main door of his residence and on entering the house the party noticed one dead body lying oh the floor. The witness stated that the severed head was lying at a little distance away from the remaining part of the dead body, however, both in the same room of the house. The witness stated about the seizure of one blood stained axe and a curved dao from inside the same room along with a bicycle and other items. He identified the bicycle to be one used by the deceased to visit his house and that of Lalit Gogoi. He proved the seizure list, Ext. 1 & 2. He also proved his statement made before the concerned Magistrate under Section 164 Cr.P.C. as Ext. 3. In cross-examination, suggestions were made on behalf of the accused-appellant denying that he had made a statement before the witness or the police that the deceased was killed by him. 7. The evidence of PW 2, Sri Lalit Gogoi, Gaonburah of the village is exactly identical to the above narration by the PW1. He not only proved the seizure list Ext. 1 & 2, but also identified the seized axe and dao as Material Ext. 1 & 2 in Court. He proved his statement under section 164 Cr.P.C. vide Ext. 4. He denied the suggestion that the accused-appellant had not reported to him about his involvement in the killing of the deceased and also that he did not visit his (accused-appellant) residence on being led by him along with the police. 1 & 2 in Court. He proved his statement under section 164 Cr.P.C. vide Ext. 4. He denied the suggestion that the accused-appellant had not reported to him about his involvement in the killing of the deceased and also that he did not visit his (accused-appellant) residence on being led by him along with the police. A significant suggestion on behalf of the accused appellant denied by the PW 2, is extracted here in below : - It is not fact that the accused-appellant simply informed us about the fact that one dead body had been found by him lying inside his residence. 8. PW 3, Sri Gajendra Nayak, is the son of the deceased, who in his deposition stated of having come to Rangapara Police Station on receiving the information about the murder of his father by the accused-appellant. He owned the FIR lodged by him narrating the incident. 9. PW 4, Sri Manuel Sona, Line Chowkidar of Ambari Tea Estate proved the seizure list Ext. 1 and also identified the seized axe and dao as Material Ext. 1 & 2. This witness stated further to have accompanied the police along with the accused-appellant to the latter's residence and seen a dead body inside a room. He stated that the police had seized the axe and the dao from inside the room in which the dead body was found lying. 10. PW 5, Sri Bhomra Bhuyor claimed to have accompanied the police and the accused-appellant along with others to his (accused-appellant) house on being led by the accused-appellant. This witness also stated to have seen one dead body lying inside the one room of the said house. He also stated about the seizure of one axe and dao from near the dead body, which he identified as Material Exts. 1 & 2. 11. PW 6, Dr. Gopendra Mohan Das stated to have found the following injuries on the dead body in course of the post mortem examination : - 2. Wounds 1. Head is approximated to the remaining dead body and it is found that both parts are of the same person. Three sharp cut injuries are seen over remaining lower part of the neck at different levels which amputated the head from the body. 2. Multiple skull bone fractures are seen due to sharp cut injuries over right side of head. Head is approximated to the remaining dead body and it is found that both parts are of the same person. Three sharp cut injuries are seen over remaining lower part of the neck at different levels which amputated the head from the body. 2. Multiple skull bone fractures are seen due to sharp cut injuries over right side of head. Right cerebrum, membrane are lacerated, full of old blood clots. 3. Body is extremely pale due to heavy blood loss. Head is flooded with blood clots." According to this witness, the death was due to shock and haemorrhage sustained by the deceased as a result of sharp cut injuries amputating the head from the body with head injury fracture intra-cranial haemorrhage. 12. PW 7, Rimi Bharali, is the Judicial Magistrate, who had recorded the statement of PW 1 & 2, which she proved as Ext. 3 in Court. 13. PW 8, Sri Jibendra Brahma, the Investigating Officer in course of his evidence stated that having received the information about the incident and being entrusted with the charge of investigation thereof, he visited the place of occurrence along with his staff. He also went to the house of the VDP Secretary where he met the accused-appellant, who led the party to one garden quarter comprising of two rooms. According to this witness, when they opened the door of the house/quarter and arranged for light, they noticed one dead body without its head lying on the floor. They also found near the dead body one axe and one dao, which were seized vide Exts. 1 & 2. The witness stated that on being queried about the head of the body the accused-appellant stated that he had kept in a bundle and produced the same from the next room, the same being tied with one piece of "army colour cloth". The witness stated that thereafter the inquest was conducted and the two portions of the dead body were forwarded to the post mortem examination In course of his cross-examination under section 313 Cr.P.C., the accused-appellant denied to have admitted before the PW 1 & 2 to have killed the deceased. His version was that at the time of the occurrence he was not at home and the door of the house was tied up with a string. His version was that at the time of the occurrence he was not at home and the door of the house was tied up with a string. He explained that in the evening on his return thereto, he having seen the dead body of the priest lying there, he informed PW 1 & 2, whereafter, the police came and seized it. According to him, he was unaware as to who had killed the deceased. He asserted that he had been falsely implicated in the offence. 14. On a conjoint consideration of the evidence of the prosecution witnesses, more particularly that of PW 1 & 2, we notice a string of coherence and consistency implicating the accused-appellant in the offence. Both these witnesses have corroborated each other to the effect that the accused-appellant had, at first instance, visited the house of village Headman, Lalit Gogoi and disclosed to him that he had killed one person who was a priest. The identity of the deceased is not in doubt. As the FIR would disclose, he was a priest and as mentioned therein on the date of the incident he had gone to the house of the accused-appellant to perform some religious rituals. The visit of the accused-appellant in the house of Lalit Gogoi and Md. Jafar Khan, PW 2 & 1 respectively, in succession immediately, thereafter and his (accused-appellant) version of having killed the deceased followed by the recovery of the dead body in two parts in his (accused-appellant) house in presence of the police, in our view, unmistakably point to his culpability. That the evidence of the PW 1, Sri Lalit Gogoi & PW 2, Md. Jafar Khan and PW 8, the Investigating Officer also to the effect that the accused appellant had led the police to his house, whereupon, on being shown by him, the dead body of the deceased in two parts had been recovered, also cannot be lightly brushed aside. The whole exercise constitute a process leading to discovery of the dead body by the police at the instance of the accused-appellant. It is, in this context that his extra-judicial confession before the PW 1 & 2 as the assailant of the deceased assumes decisive significance. The whole exercise constitute a process leading to discovery of the dead body by the police at the instance of the accused-appellant. It is, in this context that his extra-judicial confession before the PW 1 & 2 as the assailant of the deceased assumes decisive significance. Though, noticeably, PW 1 & 2 have testified that on reaching the house of the accused-appellant, he had unlocked the door thereof and the severed head was found in the same room, PW 8, the IO, on the other hand, stated that 'they' had opened the lock of the door and that only the torso was found in one room and the amputated head was brought by the accused-appellant from the adjoining room tied up in a cloth. Though, the learned Amicus Curiae has laboured to discard the prosecution case on the basis of this contradiction, in the face of overwhelming evidence on record, establishing, in our view, the identity of the accused-appellant as the killer, we do not feel persuaded to lend our concurrence to this plea True it is that there is no eye-witness in the instant case. The evidence of the prosecution witnesses, as narrated hereinabove, the above notwithstanding, coupled with the admission of the accused-appellant about the existence of the dead body in two parts in his house leaves no manner of doubt that he is the perpetrator of the offence resulting in the death of the deceased. PW 6, Dr. Gopendra Mohan Das, as the above extract would reveal, in no uncertain terms, has opined that the amputated head belong to the body that was found severed therefrom and bore incised wounds on the neck, skull and head. The axe and the dao seized from the vicinity of the dead body also from the same room of the house of the accused-appellant and identified by the prosecution witnesses are both sharp cutting weapons capable of inflicting the injuries found on the dead body. This is more so, in view of the medical opinion that the injuries on the neck and the head were sharp cut injuries. 15. Mr. This is more so, in view of the medical opinion that the injuries on the neck and the head were sharp cut injuries. 15. Mr. Chomal in course of the arguments has sought to consolidate the defence taken by the accused-appellant in course of his statement under Section 313 Cr.P.C. by contending that as he used to live alone in the house and the door was not locked it is not unlikely that the offence had been committed elsewhere and the dead body in two parts had been planted in his house, so as to falsely implicate him in the offence. This stand for the first time, we notice, had been taken by the accused-appellant in his statement under Section 313 Cr.P.C. and no endeavour has been made on his behalf at the trial. This omission on the part of the defence coupled with the evidence of the prosecution witnesses to the contrary i.e. the door of the house of the accused-appellant at the relevant time was under lock and key and that he had opened the lock to facilitate the entry of the police led party to discover the dead body, impels us to conclude that this plea is only an after thought taken in desperation to somehow extricate him from the charge. 16. We notice with approval the circumstances recorded by the trial Court in the impugned judgment and order that the same unimpeachably demonstrate the culpability of the accused-appellant proving beyond all doubt that he had been the author of the assaults resulting in multiple cut injuries found on the dead body and to which he succumbed to meet his ultimate end. 17. On a consideration of the totality of the circumstances available from the records, we are, thus, of the unhesitant opinion that the accused-appellant is guilty of the offence of murder and that he has been rightly convicted under section 302 of the IPC. We see no extenuating or mitigating circumstances to interfere with the sentence as well. The appeal thus fails and is dismissed. We part by recording our appreciation for Mr. DK Chomal for his role as the Amicus Curiae in the instant appeal and direct payment of his professional fee, which we quantify at Rs. 5000/- to be made by the State Government forthwith. Appeal dismissed.