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2013 DIGILAW 243 (GAU)

Nipen Suren v. State of Assam

2013-04-03

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. This is an appeal against the judgment and order, dated 24.01.2008, passed, in Sessions Case No. 109 of 2007, by the learned Sessions Judge, Dibrugarh, convicting the accused-appellant, Nipen Suren, under Section 302, IPC and sentencing him to undergo imprisonment for life and pay fine of Rs. 5,000/- and, in default of payment of fine, suffer imprisonment for a period of 2 (two) months. The case of the prosecution may, in brief, be described as under: On 29.03.2007, Arjun Munda, a co-villager of Boruah Maji (since deceased), had thrown a party at his (Arjun Munda's) house to celebrate the fact that he had purchased a plot of land. The said party was attended to by, among others, the accused-appellant, Nipen Suren, and Boruah Maji (since deceased). The accused attended the said party wearing a cap. Those, who had attended the party at Arjun Munda's house, consumed liquor. After the party was over, Boruah Maji left Arjun Munda's house in the company of the accused-appellant, Nipen Suren; but Boruah Maji did not return home. On the following day (i.e., on 30.03.2007) the family members of Boruah Maji started looking for him and, eventually, found, at about 12 noon, his dead-body lying in a drain, at Karmani Teas Estate, whereupon Prithvi Majhi (PW 8), son-in-law of deceased Boruah Maji, lodged a written ejahar at Rajgarh Police Out Post. Treating the said ejahar as First Information Report (in short, 'FIR'), Tingkhong Police Station Case No. 54 of 2007, under Section 302, IPC, was registered against the accused. 2. During the course of investigation, a cap, allegedly belonging to the accused, was recovered from near the place, where the said dead-body had been found lying. Police, then, arrested Nipen Suren and, on being interrogated, the accused, admittedly, led the police to a place from where a khukuri was recovered and seized. On completion of investigation, police laid charge-sheet, under Section 302, IPC, against the accused, Nipen Suren. 3. At the trial, when a charge, under Section 302, IPC, was framed against the accused, he pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 12 (twelve) witnesses. On completion of investigation, police laid charge-sheet, under Section 302, IPC, against the accused, Nipen Suren. 3. At the trial, when a charge, under Section 302, IPC, was framed against the accused, he pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 12 (twelve) witnesses. The accused was, then, examined under Section 313, Cr PC and, in his examination aforementioned, the accused, while denying that he was behind the killing of Boruah Maji, admitted that he had left Arjun Munda's house along with the said deceased; but, at the same time, claimed that, on the way, he had found his friends going to Bhawna (i.e. a kind of religious drama) and went away with his said friends leaving Boruah Maji alone. However, in support of his plea that he (accused-appellant), having found his friends, went away to see Bhawna or had seen Bhawna, no evidence was adduced by the defence. 5. Having found the accused guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, which has been passed against him, the accused, as a convicted person, has preferred this appeal. 6. We have heard Mr. B. Chakraborty, learned amicus curiae, appearing for the appellant. We have also heard Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, Assam. 7. While considering the present appeal, it needs to be noted that it is PW 11 (doctor), who had, admittedly, performed the post-mortem examination on the dead-body of the said deceased, on 31.03.2007, and his findings are as follows: 1. Cut throat of size 12 X 6 cm on the front of the neck 6 cm above the suprasternal notch. The neck tissues, vessels, nerves, larynx and esophagus were cut. Ante-mortem blood clots were adherent to the injury side. 2. Cut throat of size 14 X 2 cm on the front of the neck 1 cm on the front of the neck, 1 cm below the injury No. 1, cutting neck tissues, vessel, nerves, larynx trachea and esophagus. Ante-mortem blood clots adherent to the injury side. 3. An abrasion of left shoulder of size 3 X 2 cm, 3 cm away from left outer canthus. 4. Multiple abrasions on right shoulder of size varying from 2 X 1 cm to 2.5 X 1.5 cm. 5. Ante-mortem blood clots adherent to the injury side. 3. An abrasion of left shoulder of size 3 X 2 cm, 3 cm away from left outer canthus. 4. Multiple abrasions on right shoulder of size varying from 2 X 1 cm to 2.5 X 1.5 cm. 5. Multiple abrasions on left shoulder of size varying from 1 X 1.5 cm to 2 X 1.5 cm. 6. Multiple bruises with abrasions on the back of abdomen at limbs vertebral region of size varying from 2.5 X 3 cm to 4 X 3.5. In the opinion of doctor, death was due to haemorrhage and shock as a result of injury sustained. The injuries described were ante-mortem and caused by sharp-cutting weapon except injury No. 3, 4, 5 and 6 which were caused by blunt weapon and homicidal in nature. Approximate time since death 24 to 48 hours. 8. The findings of the doctor and his opinion with regard to the nature of injuries, which were found on the said deceased, and his opinion with regard to the death of the said deceased, there is no challenge. This apart, we notice nothing inherently incorrect or improbable in the evidence given by the doctor. The medical evidence, which has remained unshaken, shows that the said deceased had suffered multiple injuries, including cut injuries, on his throat and the injuries, so sustained, became the cause of his death. 9. Bearing in mind the medical evidence on record, when we turn to the evidence of PWs 1, 2, 3, 4, 5 and 6, PW 4 being Arjun Munda, we notice that according to PW 4 (Arjun Munda), he had given a party at his house as he had purchased a plot of land and that accused Nipen, the said deceased, Boruah Maji, and others joined the party and, in the party, the accused was wearing a cap and that after the dinner, the said deceased and the accused left his house together and, on the following day (i.e., on 30.03.2007), he (PW 4) was informed that Boruah Maji's dead-body had been found lying in a drain inside Karmani Teas Estate, whereupon he went to the place of occurrence and saw the dead-body and also saw a cap lying at a little distance from the dead-body. It is in the evidence of PW 4 that the said cap was seized by the police. 10. It is in the evidence of PW 4 that the said cap was seized by the police. 10. Though PW 4 has been put to cross-examination, at length, nothing could be elicited by the defence from the cross-examination of PW 4 to show that any part/portion of his evidence is untrue or false. 11. So far as PWs 1, 2, 3 and 5 are concerned, they all had attended the party, which PW 4 had given, and their evidence, too, broadly speaking, show that the said deceased and the accused had attended the party, that the accused was wearing a cap and that a cap was also recovered from near the place, where the dead-body of Boruah Maji was, eventually, found. 12. While considering the evidence, with regard to the said cap and its seizure, it needs to be borne in mind that there is no evidence at all showing that the cap, in question, belonged to, or was worn by, the accused-appellant. Though the learned trial Court has laid great emphasis on the fact that the said cap was recovered from near the place, where the said dead-body had been found, we are of the view that in the face of the fact that there is no evidence to show that the said cap was the one, which the accused-appellant had been wearing on the night, when he had attended the party at Arjun Munda's house, the factum of the finding of the said cap could not have been taken into account against the accused-appellant. 13. Coupled with the above, the learned trial Court has also, relying upon the evidence of the Investigating Officer and witnesses of the seizure, held that a khukri was recovered at the instance of the accused-appellant and that the said khukri was the weapon of the offence. 14. We must pause and hasten to point out that there is not even a particle of evidence showing that the said khukri was subjected to any chemical examination. There is no evidence that the said khukri bore stains of human blood and/or that it was the one, which caused the injuries, which had been found on the said dead-body. It could not have, therefore, been confidently held that the said khukri was the weapon of offence. 15. There is no evidence that the said khukri bore stains of human blood and/or that it was the one, which caused the injuries, which had been found on the said dead-body. It could not have, therefore, been confidently held that the said khukri was the weapon of offence. 15. Even if the fact that the said cap was found near the dead-body of Boruah Maji and/or that the said khukri was recovered at the instance of the accused are kept excluded from the purview of our consideration, what we cannot ignore is the fact that PW 4 has deposed that after having dinner, the accused left his house together with the said deceased and when the said incriminating piece of evidence was put to the accused-appellant, while he was being examined, under Section 313(1)(B), Cr PC, the accused-appellant did not dispute that he had left the house of PW 4 in the company of the said deceased. Far from this, the accused-appellant admitted that he had left the house of PW 4 along with the said deceased; but he claimed that on the way, he (accused-appellant), having found some of his friends going to Bhawna, joined them. This assertion of the accused-appellant has, however, remained without being substantiated by evidence on record. 16. There is, thus, no evidence that the accused-appellant, who had, admittedly, on the night of the occurrence (i.e., 29.03.2007), left the house of PW 4 in the company of the said deceased, had gone to see Bhawna by leaving behind the said deceased. 17. Undoubtedly, therefore, the accused-appellant became the person, who was last seen in the company of the deceased. No one, thereafter, saw the said deceased alive and, eventually, Boruah Maji's dead-body was found on the following day, at about 12 noon, and the accused-appellant remained untraced till he was produced before the police, on 06.04.2007, by his father. 18. Though the theory of last seen together cannot be easily made the basis of conviction, there is no bar in convicting an accused on the basis of such evidence if the Court believes the evidence. In the present case, there is no evidence to show that the accused ever left the company of the deceased until the time latter met with his death. 19. In the present case, there is no evidence to show that the accused ever left the company of the deceased until the time latter met with his death. 19. In the case at hand, there is not even an iota of evidence on record to show that the accused-appellant had left the company of the said deceased before the said deceased met his death. 20. In the circumstances mentioned above, we are wholly convinced that the prosecution had adduced sufficient evidence to prove, in the facts and attending circumstances of the present case, that the accused-appellant was the one, who had caused Boruah Maji's death. The evidence on record, which we have discussed above, convincingly points to the accused-appellant as the person, who had caused the death of Boruah Maji. 21. Because of what have been discussed and pointed out above, we see no reason to hold that the finding of guilt, which the learned trial Court has reached against the accused-appellant, suffers from any infirmity, legal or factual. 22. Situated thus, this Court does not find any merit in this appeal. The appeal, therefore, fails and the same shall accordingly stand dismissed. 23. Let the learned amicus curiae be paid a sum of Rs. 5,000/- for his valuable assistance rendered to the Court. Send back the LCR.