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2013 DIGILAW 161 (GAU)

Bhaya Kharia v. State of Assam

2013-03-07

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. This appeal is directed against the judgment and order, dated 16.9.2009, passed, in Sessions Case No. 27(JJ) of 2008, by the learned Sessions Judge, Jorhat, convicting the accused-appellant, under Section 302, IPC and sentencing him to suffer imprisonment for life and pay fine of Rs. 3,000/- and, in default of payment of fine, suffer rigorous imprisonment for a period of one month. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under:- (i) Benga Kalati used to reside, on most of the occasions, alone, in her house, situated within Hatigarh Tea Estate, because her husband, Jiten Kalati (PW 3), was an employee of another Tea Estate. On 12.12.2006, at about 7 AM, Benga Kalati was found lying dead, in naked condition, on her bed. On 12.12.2006, the accused, Bhaiya Kharia, asked PW 4, in the morning, to give him a piece of betel nut by saying that he (PW 4) would not see him (Bhaiya Kharia) after that day inasmuch as he (Bhaiya Kharia) would be going to jail. On being asked by PW 4 as to why he would go to jail, the accused told PW 4 that he had come to PW 4 after having murdered Benga. (ii) On being informed about the death of his wife, Jiten Kalati (PW 3) came home and, having seen the dead body, lodged a written Ejahar. Based on the said Ejahar, and treating the same as FIR, Jorhat Police Station registered a case, under Sections 448 /376 /302, IPC, against the unknown culprit. During investigation, police arrested the accused person, visited the place of occurrence, held inquest over the said dead body and submitted charge-sheet, under Sections 448 /302, IPC, against the accused. 2. During trial, when charges, under Sections 448 and 302, IPC, were framed against the accused, the accused pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 13 witnesses. The accused was, then, examined under Section 313 Cr.P.C. and, in his examination aforementioned, the accused denied that he had committed the offences, which were alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. 4. The accused was, then, examined under Section 313 Cr.P.C. and, in his examination aforementioned, the accused denied that he had committed the offences, which were alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. 4. Having found the accused guilty of the offence, under Section 302, IPC, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. 5. Aggrieved by his conviction and the sentence, which has been passed against him, the accused has preferred this appeal. 6. We have heard Mr. Ajoy Phukan, learned Amicus Curiae, and Mr. K.A. Mazumdar, learned Addl. P.P., Assam. 7. While considering the present appeal, we need to bear in mind that though the case was registered under Sections 448 /376 /302, IPC and though charges were framed under Sections 448 and 302, IPC, the accused-appellant has been convicted under Section 302, IPC and sentenced accordingly. There is no finding, in the impugned judgment and order, as to whether the allegation, as regards commission of offence, under Section 448, IPC, by the accused-appellant is true or not. 8. Be that as it may, since the State has not preferred any appeal, we keep this aspect of the case excluded from the purview of our consideration. 9. While considering the present appeal, it is also important to bear in mind that there is, admittedly, no eye-witness to the alleged occurrence, i.e., the killing of Benga Karati. The prosecution's case, admittedly, rests on the extra-judicial confession, which the accused-appellant is alleged to have made to PW 4. 10. Before we deal with the evidence of PW 4, let us consider the evidence of the doctor (PW 12), who had, admittedly, conducted post mortem examination, on 4.2.2006, on the dead body of Benga Kalati and found as follows: Body of an adult female. Average in built. Rigor mortis present. Frothy discharge from the month. INJURY Multiple abrasions over chest and breast. Ecchymosed area over the both breast. Ecchymosed are over the face and cheeks. Both eyes ecchymosed and swollen. ABDOMEN Congested mouth confirms. Blood stained frothy discharge. No injury detected in the private part and no sign of sexual intercourse. Changes are ante mortem. 11. Rigor mortis present. Frothy discharge from the month. INJURY Multiple abrasions over chest and breast. Ecchymosed area over the both breast. Ecchymosed are over the face and cheeks. Both eyes ecchymosed and swollen. ABDOMEN Congested mouth confirms. Blood stained frothy discharge. No injury detected in the private part and no sign of sexual intercourse. Changes are ante mortem. 11. In the opinion of the doctor, the cause of death was asphyxia as a result of suffocation sustained by the deceased and there was no sign of sexual intercourse. As there were injuries on the said body, the doctor opined that the suffocation was due to application of force from outside and that death was homicidal and that the ecchymosed chest area was a result of beating. 12. In his cross-examination, PW 12 (doctor) admitted that suffocation may occur due to asthma or heart trouble; but he categorically asserted that the present one was not a case of asthma or heart trouble as there was no sign of asthma or heart trouble. 13. It may, now, be pointed out that the findings of the doctor and his opinion, with regard to the cause of death of the said deceased, has not been disputed at the trial. Since there were injuries on the said dead body, which were ante mortem in nature, the doctor opined that the suffocation was due to application of force and, hence, the death was homicidal. 14. In the light of the injuries, which have been found on the said dead body, we do not find that the opinion of the doctor, as regards the cause of death, suffers from any infirmity. We have therefore, no hesitation in holding that the death of Benga Kalati was homicidal in nature. 15. The above discussion of the evidence on record brings us to the evidence of PW 6, a casual labour of Hatigarh Tea Estate. According to evidence of PW 6, he knew deceased, Benga Kalati, and about one-and-half years ago, he went to the house of Benga, at 7 AM, to take money, which was due to him, and called her from outside. According to evidence of PW 6, he knew deceased, Benga Kalati, and about one-and-half years ago, he went to the house of Benga, at 7 AM, to take money, which was due to him, and called her from outside. It is in the evidence of PW 6 that upon receiving no reply, he entered into the house of Benga Kalati and found her lying, on her bed, with her feet touching the ground, whereupon he raised hue and cry and that he also called a woman from the neighbourhood and showed the dead body to her. 16. Close on the heels of PW 6, PW 9 (Smt. Bina Murah), has deposed that Benga's house is located near her house and, at the time of the occurrence, Benga was alone in the house, because her husband had gone out. 17. With regard to the occurrence, PW 9 has deposed that while she was working in her house, in the morning, her daughter-in- law, Kala, called her and told that her Nabou (i.e. the elder brother's wife) was sleeping without her wearing apparels, whereupon she (PW 9) went to the house of Benga and found Benga lying dead in naked condition. 18. From reading the evidence of PW 6 and 9, whose evidence have not been disputed by the defence, one can safely conclude that Benga was found lying dead, on her bed, in naked condition. 19. Thus, from the undisputed, unchallenged and unshaken evidence of PW 6 and PW 9, it becomes clear that Benga Kalati's dead body was found in the condition as we have described above. The question, therefore, is: Who had killed Benga? 20. The question, posed above, takes us to the evidence of PW 4, whose evidence, we find, is that on the date of the occurrence, in the morning, the accused, Bhaiya, came to his house and asked him to give a piece of betel nut and he also told PW 4 that he (PW 4) would not see him (accused) after that day, because he (i.e., the accused) would be going to jail and when PW 4 enquired from the accused as to why the accused would be going to jail, the accused replied that he (accused) had come after murdering Benga. 21. 21. From cross examining PW 4, nothing could be elicited by the defence to show that what he had deposed, as regards the extra- judicial confession, made by the accused-appellant to him(PW 4) is false or true. There is also nothing in the evidence on record to establish that the accused had inimical relation with PW 4 and/or that PW 4 had any reason to falsely implicate the accused. 22. Thus, the evidence of PW 4, which has remained unshaken, inspires confidence and his evidence makes it more than abundantly clear that the accused-appellant had, indeed, stated before PW 4 that he had come to the house of PW4 after murdering Benga. The unshaken evidence, so given by PW4, clearly proves that it was none, but the accused-appellant, who had put Benga to death in the most cruel manner. 23. While considering the evidence of PW 5, it is seen that this witness had been told by one Nakul that the accused had confessed that he had killed Jiten's wife. Even if we keep the evidence of PW 5 outside the purview of our consideration on the ground that Nakul has not been examined as witness at the trial, the evidence of PW 4 still remains unshaken and his evidence clearly proves that it was the accused-appellant, who had caused death of Benga. 24. We may pause here to point out that according to the evidence of PW 3, the husband of the said deceased, he (PW 3) was informed by his brother that his wife had died, whereupon he came home and found his house unlocked and his wife lying dead, on the bed, with her feet touching the ground. PW 3 has also deposed that he saw injuries on her chest and neck and blood was oozing out of her nose. It is further in the evidence of PW 3 that he lodged Ejahar at the Police Out Post and, thereafter, police came alongwith a Magistrate. 25. PW 3 has also deposed that he saw injuries on her chest and neck and blood was oozing out of her nose. It is further in the evidence of PW 3 that he lodged Ejahar at the Police Out Post and, thereafter, police came alongwith a Magistrate. 25. The evidence of the Investigating Officer (PW 13) is that, while he was discharging his duties as In-charge, Garmur Out Post, he, upon receipt of the Ejahar about the occurrence, made necessary G.D. Entry in this regard and sent the Ejahar, for registration of a case, to the police station, then, accompanied by an Executive Magistrate, he (PW 13) came to the place of occurrence, sent the dead body for post mortem examination, examined witnesses and arrested the accused. 26. From what have been discussed and pointed out above, we do not find that the finding of the learned trial Court, passed against the accused-appellant, suffers from any infirmity, legal or factual. We, therefore, see no reason to interfere with the conviction of the accused-appellant or the sentence, which has been passed against him. 27. In the result and for the reasons discussed above, this appeal fails and the same stands dismissed. 28. Send back the LCR. 29. Let the learned Amicus Curiae be paid a sum of Rs. 5,000/- for his valuable contribution to the Court. With the above observations and directions, this appeal stands disposed of.