Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 586 (GAU)

Babu Sena Moitee v. State of Assam

2012-05-10

AMITAVA ROY, R C.SAIKIA

body2012
JUDGMENT Amitava Roy, J. 1. By the judgment and order dated 20.02.2006, passed by the learned Sessions Judge, Golaghat, in Sessions Case No. 49/2005, the accused-appellant has been convicted under section 302 of the Indian Penal Code (for short hereafter referred to as the IPC) and sentenced to suffer imprisonment for life and also to pay a fine of Rs. 2000/-, in default, to undergo rigorous imprisonment for further 2 years. Being aggrieved, the appellant, who is in jail, is in appeal for redress. We have heard Ms. Rita Das Majumdar, learned Amicus Curiae for the accused-appellant and Mr. KA Mazumdar, learned Addl. Public Prosecutor, Assam. 2. Sarupathar Police Station Case No. 146/04, under section 302 IPC was registered on the receipt of a FIR dated 27.12.2004, lodged by one Sri Sanatan Moitoe, alleging that about 06.00 a.m., on the same date, the accused-appellant had hacked his wife Smt. Prova Devi to death while the latter was engaged in household chores. The FIR disclosed that after the incident, the accused-appellant had been detained at the place of occurrence by the neighbouring people, who gathered their on hearing hue and cry. 3. On the completion of the investigation, a charge sheet was submitted against the accused-appellant under the above provision of the Code. He having denied the said charge trial followed, in which the prosecution examined as many as 7 witnesses, including the Investigating Officer as well as the Doctor, who had performed the post mortem examination over the dead body. On the closure of the evidence of the prosecution witnesses, the accused-appellant was examined under Section 313 Cr.P.C. He declined to adduce any evidence in defence. The trial Court, on a consideration of the materials on record, by the impugned judgment and order convicted and sentenced him as above. 4. As the first Court of appeal, it is considered appropriate, before analyzing the rival submissions, to conduct a brief survey of the evidence on record. 5. PW 1, Sri Sanatan Moitoe, the informant, stated on oath that at about 06.30 a.m. on the date of the incident the younger daughter of the accused-appellant visited his house and disclosed to him that he (accused appellant) had cut her mother. 5. PW 1, Sri Sanatan Moitoe, the informant, stated on oath that at about 06.30 a.m. on the date of the incident the younger daughter of the accused-appellant visited his house and disclosed to him that he (accused appellant) had cut her mother. Having come to learn of this tragic incident, the witness in a run reached the house of the accused-appellant to find him (accused-appellant) standing near the injured with a blood stained dao in hand. The witness raised alarm, whereafter, the people gathered at the spot, detained the accused-appellant and handed over him to the police. Meanwhile, the injured succumbed to the injuries sustained. The witness, thereafter, lodged the FIR, Ext. 1. He also claimed to be a witness to the inquest vide Ext. 2 as well as the seizure of the weapon of assault vide Ext. 3. In cross examination this witness, however, conceded of not having seen the actual assault. He, however, clarified that he (accused-appellant) at the relevant point of time did not suffer from any mental ailment. 6. PW 2, Sri Lela Singh for all practical purposes is a witness of the inquest and proved vide Ext. 2 in connection therewith. He had gone to the place of occurrence after seeing the people running helter and skelter on the road and on receiving the information from them that the accused-appellant had hacked his wife. In cross-examination, this witness claimed to be present there when the accused-appellant, on being asked by her mother, told her that he had assaulted his wife. 7. PW 3, Dr. Rajib Phukan deposed to have found the following injuries on the dead body in course of the post mortem examination thereof :- The larynx and trachea are separated into two pieces at the junction of upper 1/3rd of the neck. Pale and empty of the right side of the chamber. (1) There is a curve shaped injury at the junction of the upper l/3rd and lower 2/3rd of the neck upto the bone deep, all the ribbon muscles and the great vessels are separated into two pieces. (2) There is another curved shaped sharp would on the back side of the left shoulder 6"x2"x1/2"" He opined that all the injuries were ante mortem in nature and that death had occurred due to shock and haemorrhage generated thereby. He proved the post mortem report Ext. 4. (2) There is another curved shaped sharp would on the back side of the left shoulder 6"x2"x1/2"" He opined that all the injuries were ante mortem in nature and that death had occurred due to shock and haemorrhage generated thereby. He proved the post mortem report Ext. 4. He stated further that having regard to the injuries sustained those were sufficient to cause death. 8. PW 4, Sri Nilachand Singh, the son of the accused-appellant is a eye-witness to the incident He stated on oath that in the morning of the incident having looked towards her mother, who had raised alarm, he saw the accused-appellant cutting her with a dao. According to this witness, as he raised hue and cry, the accused-appellant tried to flee, but was held back by the neighbouring people, who had gathered there meanwhile. This witness stated that the injured had succumbed to the injuries immediately. He proved the inquest report Ext. 2 as well. This witness in categorical terms denied the suggestion that the accused-appellant was a mentally ill person and clarified that he had never seen his parents quarreling with each other. 9. PW 5, Sri Kanta Mitai, is the Secretary of the VDP and had arrived at the place of occurrence on being informed about the same. He stated that on reaching the spot he found the accused-appellant tied up by the public. He proved the seizure of the dao by the police vide Ext.3. Though, in cross-examination, this witness disclosed that he was unaware of any quarrel between the accused-appellant and the deceased, he suggested that the former used to suspect latter. 10. PW 6, Sri Rasamal Singh is also not an eye witness, but had been informed about the incident. 11. PW 7, Sri Lokeswar Buragohain is the Investigating Officer. He admitted the receipt of the FIR, Ext. 1 and the conduct of inquest on the dead body vide Ext. 2. He deposed to have seized the dao by Ext. 3 and identified the same as Material Ext. 1. In cross-examination, however, he admitted that the dao had not been seized from the possession of the accused-appellant and that it was the people, who had handed over the same to him. 12. In reply to the following questions, as the proceedings under section 313 Cr.P.C. would reveal, the accused-appellant had admitted to have cut his wife : - Q. No. 2. 12. In reply to the following questions, as the proceedings under section 313 Cr.P.C. would reveal, the accused-appellant had admitted to have cut his wife : - Q. No. 2. Adducing evidence PW 1, has stated that about five months back on day around 6.30 a.m. your younger daughter informed him that you had cut your wife. He has also stated that coming there in a run, he found your wife lying in an injured state and saw you standing there armed with a blood stained dao and that seeing you looming this side and that, he came back and raised out alarm. What is your reply? Ans. - I have no knowledge regarding that. But, it is true that I have cut my wife. 13. The learned Amicus Curiae has argued that not only the testimony of PW 4, the so-called eye witness is vague in material particulars, in absence of any other ocular evidence proving the complicity of the accused-appellant, the learned trial Court ought to have acquitted him from the charge. According to her, reliance on the purported admission of the accused-appellant in course of his examination under Section 313 Cr.P.C., is also impermissible in law. In this view of the matter, she has urged that the accused-appellant is entitled to the benefit of doubt and, therefore, the impugned judgment and order ought to be interfered with. 14. The learned Addl. Public prosecutor, in reply, however, has urged that the evidence of PW 4, the son of the accused-appellant is unequivocal and categorical in nature and the same read with the findings of the post mortem report and the admission of the accused-appellant under section 313 Cr.P.C. merits no interference with the impugned judgment and order is called for. 15. We, in the facts and circumstances of the case and having regard to the state of evidence on record are inclined to sustain the plea raised on behalf of the prosecution. True it is that the only eye witness to the incident is PW 4, Sri Nilchand Singh, the son of the accused-appellant and the deceased. A plain reading of his evidence does not admit of any doubt to suspect the veracity thereof. As a son, in absence of any material on record, it is incomprehensible that he would falsely implicate his father as the murderer of his mother. A plain reading of his evidence does not admit of any doubt to suspect the veracity thereof. As a son, in absence of any material on record, it is incomprehensible that he would falsely implicate his father as the murderer of his mother. His testimony with regard to the assaults and the injuries noticed by him on the injured finds corroboration from the findings recorded by the Doctor conducting the post mortem examination of the dead body. It is apparent from the injuries sustained that the accused-appellant had used the weapon of assault, Material Ext. 1 duly seized by the police from the place of occurrence. The injuries indicate that the neck and the back side of the left shoulder bone deep sealed wounds, which according to the medical witness, were sufficient to cause death in the ordinary course of nature. Noticeably, the accused-appellant had admitted to have assaulted his wife while being examined under Section 313 Cr.P.C. In the above view of the matter, we are of the unhesitant opinion that the accused-appellant had the intention of inflicting deadly injuries on the vital organs of his wife, who, eventually, succumbed thereto. Though an attempt has been made on behalf of the learned Amicus Curiae to scale down the sentence, we are unable to respond affirmatively thereto. The facts and circumstances in which the offence was committed and considering the grievous nature of injuries inflicted by a sharp cutting weapon, we find no cogent and convincing reason to interfere with the impugned conviction and the sentence as above. The appeal fails and is dismissed. We, however, part by recording our appreciation for the assistance rendered by the learned Amicus Curiae and hereby direct the State Government to pay an amount of Rs. 5000/-, as her professional fee forthwith. Appeal dismissed.