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2012 DIGILAW 587 (GAU)

Rohidas Miura v. State of Assam

2012-05-10

AMITAVA ROY, PRASANTA KUMAR SAIKIA

body2012
JUDGMENT Amitava Roy, J. 1. The judgment and order dated 8.5.2006, passed by the learned Addl. Sessions Judge No. 1, Tinsukia, in Sessions Case No. 122(T)/2005, convicting the accused-appellant 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 simple imprisonment for further 1 month forms the subject matter of challenge in the instant appeal. We have heard Mr. Rita Das Majumdar, learned Amicus Curiae for the accused-appellant and Mr. KA Mazumdar, learned Addl. Public Prosecutor, Assam. 2. The prosecution was set in motion by the FIR dated 25.02.2005 lodged by one Sri Babulal Mura with the Officer-in-Charge, Doom Dooma Police Station, alleging that about 05.30 p.m. in the evening of the previous day his son, Sri Abhiram Mura while returning from a grocery shop located in the same basti, he was intercepted by the accused-appellant and assaulted on the head by a dao. The FIR disclosed that the injured had died on the way to the hospital. Doom Dooma Police Station Case No. 37/2005, under section 302 IPC was registered and on the completion of the investigation, charge sheet was also laid under the said provision of law. The accused-appellant was charged under section 302 IPC, to which he pleaded innocence. In the trial that followed, the prosecution examined 10 witnesses, including the Investigating Officer and the Doctor, who had performed the autopsy on the dead body. The accused-appellant was, thereafter, examined under section 313 Cr.P.C. He having declined to adduce any evidence in defence, the learned trial Court on the basis of the materials available on record convicted and sentenced him as above. 3. Before consideration the rival submissions on oath, it is considered appropriate to survey the evidence summarily. 4. The evidence of PW 1, Sri Paragjyoti Borah is to the effect that the accused-appellant had led the police to the house of his mother-in-law, which was closed at that point of time. However, thereafter, a dao was produced from the said house. The police seized the same vide Ext. 1. In cross-examination, this witness admitted that the dao had been produced by the lady in the house and that the same did not wear any blood slain. 5. However, thereafter, a dao was produced from the said house. The police seized the same vide Ext. 1. In cross-examination, this witness admitted that the dao had been produced by the lady in the house and that the same did not wear any blood slain. 5. PW 2, Sri Babulal Mura, the informant and the father of the deceased stated that on the date of the incident at about 06.00 p.m., while his son along with one Lalbhai Mura had been returning from the nearby shop, the accused-appellant injured the deceased by cutting him with a pruning knife near his (accused-appellant) house, whereafter, Lalbhai came and informed him of the occurrence. The witness stated that on reaching the place of occurrence, he found the body of his son with cut injury on his head. He stated further that his son succumbed to the injuries on his way to the hospital. He proved the inquest conducted on the dead body vide Ext. 3. He further stated that the accused-appellant had surrendered at the police station. In cross-examination this witness admitted that he was not present when the dao was recovered. 6. PW 3, Sri Lalbhai Mura is, according to the prosecution, a eye-witness of the incident. He deposed on oath that while he, at the time of the incident, had been returning from a shop in the locality along with the deceased, the accused-appellant assaulted the latter on the head with a pruning knife. He admitted that at the time of the assault he was ahead of the deceased, who was following him. He, however, added that after assaulting the deceased, the accused-appellant also attempted to cut him on which he fled from the scene and informed Babulal Mura to the occurrence. He confirmed as well that the deceased died on his way to the Hospital. In cross-examination, this witness stated that at the time of the assault, he was about eight feet ahead of the deceased. He, however, clarified that he could identify the accused-appellant to be the assailant as it was not very dark at that point of time. 7. PW 4, Sri Manas Jyoti Duwarah, is the witness of the seizure of the pruning knife vide Ext 1 by the police. In the cross-examination, however, he stated that the dao/pruning knife was not stained with blood. 8. 7. PW 4, Sri Manas Jyoti Duwarah, is the witness of the seizure of the pruning knife vide Ext 1 by the police. In the cross-examination, however, he stated that the dao/pruning knife was not stained with blood. 8. PW 5, Sri Sonu Mura, the brother of the deceased stated that as reiterated by Lalbhai Mura, the accused-appellant had assaulted him (deceased) and also attempted to cut Lalbhai. He stated that he could come to know of the episode from the narration made by Lalbhai made to his father. 9. PW 6, Smti. Saru Mura, is the mother of the deceased. He has also a reported witness having come to know of the incident from Lalbhai. She, however, deposed to have seen cut injuries below the ear of the deceased and stated that after the incident the accused-appellant had surrendered at the police station. 10. PW 7, Smti. D Barbora, is the witness of the seizure list. According to this witness, when the police came, the accused-appellant produced the dao from her house. In cross-examination, she stated that she did not notice whether the dao was stained with blood or not. 11. PW 8, Dr. Putul Ch. Saikia in course of his post mortem examination stated to have found the following injuries : - Injury mark; A sharp cut injury of size 13 cm x 8 cm x 3 cm from 3 cm above the left ear in the left temple area to the angle of the left mandible, curved with convexity forward cutting the left maxillary bone opening the left maxillary sinus, cutting the left zygomatic bone left petrous part of the temporal bone, left tympanic plate bone, left mastoid bone opening into the left side of the posterior cranial fossa cutting the occipital bone - all in a single cut. This sharp cut injury have cut the left temporal artery, internal carotid of the left side, left jugular vein, along with other minor arteries and veins. Rigormortis was present. According to him, injury No. 1 was sufficient to cause of death of a person in the ordinary course of nature. He opined that all the injuries were anti-mortem in nature and that death was due to the shock and haemorrhage as a result thereof. 12. PW 9, Sri Dilip Kr. Rigormortis was present. According to him, injury No. 1 was sufficient to cause of death of a person in the ordinary course of nature. He opined that all the injuries were anti-mortem in nature and that death was due to the shock and haemorrhage as a result thereof. 12. PW 9, Sri Dilip Kr. Das and PW 10, Sri Prafulla Bargohain in succession in conducting the investigation had laid charge sheet against the accused-appellant. He, in particular, stated about the seizure of the dao vide Ext 1. In course of his cross-examination under section 313 Cr.P.C., the police not only denied the correctness of the incorporating the evidence against him, but also insisted that he has not been produced the pruning knife/dao said to have been produced by him. 13. The learned Amicus Curiae has insistently urged that as the testimony of the only so-called eye-witness, PW 3, Lalbhai Mura, is wholly unreliable, the prosecution has failed to prove the charge against the accused-appellant and that he ought to be acquitted thereof. Pointing out to the discrepancies in the evidence of the prosecution witness visa-vis the seizure of the dao, the learned Amicus Curiae has urged, not only the same renders the case of the prosecution wholly untrustworthy, the failure of the investigating agency in keeping the said weapon examined by a forensic experts is fatal to it as well. Further, as the FIR is inexplicably silent to the presence of PW 3, Lalbhai Mura at the time of the incident, it is destructive of the substratum of the prosecution case rendering the impugned judgment and order unsustainable in law and facts. 14. Mr. Mazumdar, in reply, has urged that not only the omission to mention the name of Sri Lalbhai Mura in the FIR is inconsequential, the evidence of PW 3 having been proved the case of the prosecution to the hilt, no interference with the impugned judgment and order is warranted. According to the learned Addl. Public Prosecutor, there is no discrepancy whatsoever with regard to the seizure of the dao produced at the instance of the accused-appellant. As the injuries bearing on the dead body are comparable with the said weapon of assault, it is also a corroborative circumstance establishing the culpability of the accused-appellant. 15. According to the learned Addl. Public Prosecutor, there is no discrepancy whatsoever with regard to the seizure of the dao produced at the instance of the accused-appellant. As the injuries bearing on the dead body are comparable with the said weapon of assault, it is also a corroborative circumstance establishing the culpability of the accused-appellant. 15. Upon hearing the learned counsel for the parties and on a consideration of the evidence summarized hereinabove, we are inclined to sustain the case of the prosecution. There cannot be two opinions that having regard to the role of PW 3, Lalbhai Mura, the FIR, which is the information lodged to the police at the first point of time ought to have contained a reference thereof. Be that as it may, having regard to the underlined purpose of the FIR, we are in the face of the overwhelming evidence of PW 3, narrating the incident in circumspectory details, we are not inclined to reject the case of the prosecution on that shortcoming. Admittedly, the case of the prosecution based on the testimony of PW 3, Sri Lalbhai Mura. Reading between the lines, his evidence, according to us, inspires the confidence. Though, in his examination in chief, he had admitted that at the time of actual assault he was a bit ahead of the deceased, in cross-examination, he clarified to have seen the accused-appellant dealing cut blows on him (deceased), as it was not so done at that point of time. The credibility of this witness has not been, according to us, dislodged by the cross-examination made on behalf of the defence. The other witnesses of the prosecution, as would be apparent from their evidences, have secured the information of the incident from PW 3, Lalbhai Mura. On a reading of this witness as a whole, to reiterate, we do not find any reason to discard the veracity thereof. As, it is, the quality of evidence of materials and not the quality of volume thereof in proving the charge in a criminal trial, in our assessment, the testimony of PW 3, Lalbhai Mura meets the requirement of law to be safely acted upon for the purpose of the conviction of the accused-appellant in the case in hand. As, it is, the quality of evidence of materials and not the quality of volume thereof in proving the charge in a criminal trial, in our assessment, the testimony of PW 3, Lalbhai Mura meets the requirement of law to be safely acted upon for the purpose of the conviction of the accused-appellant in the case in hand. Though, we notice that minor inconsistencies with regard to the seizure of the dao appear here and there, we are of the opinion that the same, in face of the evidence of PW 3 as well as of the Doctor and the injuries found by him on the dead body, the same is not of any decisive relevance. The materials on record, in our opinion, thus, does not attract of any interference with the conviction and sentence recorded in the impugned judgment and order. The appeal, therefore, fails and dismissed accordingly. We part by recording our appreciation for Ms. Rita Das Mazumdar for her role as the Amicus Curiae in the instant appeal and direct payment of her professional fee, which we quantify at Rs. 5000/- to be made by the State Government forthwith. Appeal dismissed.