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2013 DIGILAW 367 (GAU)

Anil Ekka v. State of Assam

2013-05-30

B.K.SHARMA, L.S.JAMIR

body2013
JUDGMENT B.K. Sharma, J. 1. This appeal from the jail is against the judgment dated 15.07.2009, passed by the learned Additional Sessions Judge (FTC) No. 2, Tinsukia, in Sessions Case No. 64(T)/2008, by which the appellant has been convicted under Section 302 IPC and has been imposed with the sentence of life imprisonment with a fine of Rs. 2000/- and in default, to undergo another period of 3(three) months rigorous imprisonment. On 23.02.2008, an FIR was lodged by PW-10 with the Doomdooma Police Station, stating therein that at around 3.45 p.m., the accused/appellant killed the deceased by hacking him with a Dao in front of his gateway. On receipt of the FIR, Doomdooma P.S. Case No. 69/2008 was registered under Section 302 IPC. The police carried out investigation, during which the statement of the PW-3 and PW-4 were also recorded under Section 164 Cr.P.C., exhibited during the trial as Ext. 10 and Ext. 11, respectively. 2. On the basis of the charge sheet submitted by the police, charge against the accused/appellant was framed under Section 302 IPC. During trial, prosecution examined 11 witnesses, including the Investigating Officer. The statement of the accused/appellant was also recorded under Section 313 Cr.P.C. The defence declined to adduce any evidence. 3. P.W. 1 is the doctor, who had performed the post-mortem examination on the dead body. He in his deposition stated that he found the following injuries:- (i) Incised wound over chain size 10 cm x 5 cm x 3 cm horizontal in direction. (ii) Incised wound over anterior surface of neck over thyroid cartilage size 6 cm x 2 cm x 3 cm horizontal in direction. (iii) Incised wound over anterior surface of neck below thyroid cartilage size 5 cm x 2 cm x 1 cm horizontal in direction. (iv) Incised wound over posterior surface of neck over 5th cervical vertebrae size 6 cm x 3 cm x 1 cm oblique in direction. (v) Incised wound over lateral surface of right forearm 8 cm above wrist joint. (vi) Incised wound over right index finger separating the finger at the level of first matatamo phalanged joint. According to this witness, the cause of death was shock and hemorrhage, as a result of the aforesaid injuries. All injuries were ante-mortem, which were caused by sharp cutting object and homicidal in nature. 4. (vi) Incised wound over right index finger separating the finger at the level of first matatamo phalanged joint. According to this witness, the cause of death was shock and hemorrhage, as a result of the aforesaid injuries. All injuries were ante-mortem, which were caused by sharp cutting object and homicidal in nature. 4. PW-2 in his deposition stated that he did not know the accused and so also the deceased. Narrating the incident, he in his deposition stated that he had heard from the village people that a murder had taken place, then he rushed to the spot and found the person lying dead. Blood was oozing out from lower part of the chin and there was pool of blood, where the deceased was lying. 5. PW-3 in his deposition stated that he had seen the deceased on the day of occurrence. On the fateful day, while he was in his shop, the accused/appellant came and asked for a Cigarette. At that time, he had a blood stained Dao in his hand. He was told by the accused/appellant that he had cut a man. He gave him the Cigarette and a match box and having seen the Dao in his hand, he did not take money from the accused/appellant out of fear. He also requested the accused/appellant to leave the place. 6. PW-4 is the eye witness. His evidence during trial will be discussed a Little later. 7. PW-5 in his deposition stated that people gathered at the place of occurrence and he had also gone to see the dead body. He also noticed the cut injuries on the neck of the deceased. PW-6 in his deposition stated that he could see a gathering and police personnel on the particular place and taking away the dead body by the police in their vehicle. His statement was recorded by the police. He also heard from the villagers that the accused/appellant had cut the deceased. 8. PW-7 also in his deposition stated about the gathering at the place of occurrence. He had also seen the dead body in a pool of blood. 9. PW-8 is the Circle officer. He in his deposition stated that on the day of the incident, the Doomdooma Police Station had informed him to conduct inquest over the dead body of the deceased. 10. He had also seen the dead body in a pool of blood. 9. PW-8 is the Circle officer. He in his deposition stated that on the day of the incident, the Doomdooma Police Station had informed him to conduct inquest over the dead body of the deceased. 10. PW 9 is the Investigating Officer, who in his deposition stated about recording of the statement of the informant and other witnesses and also the feet of the recording the statement of PW-3 and PW-4 under Section 164 Cr.P.C. 11. PW-10 i.e. the informant in his deposition stated as to how he was informed about the incident over phone that one person had hacked another person near his house. On being so intimated, he immediately informed the matter to the police. Then police came to the place of occurrence. Thereafter, he lodged the written FIR (Ext. 7). 12. PW-11 who is the Chief Judicial Magistrate, Tinsukia, had recorded the statement of PW-4 (Ext. 10). He in his deposition further stated that he had also recorded the statement of PW-3 under Section 164 Cr.P.C. In the cross examination, he had categorically stated that during the time of recording statement, no police personnel were present. In the statement made by the accused/appellant under Section 313 Cr.P.C., he denied having committed the offence. 13. PW-4 in his deposition vividly stated as to how the accused committed the offence in front of him. At the time of the incident he was in his shop when the accused hacked the deceased on his hand and neck with a Dao. He categorically stated that the deceased fell down and shouted for help. He died instantly. Thereafter, the accused fled away from the place of occurrence. 14. The aforesaid deposition of PW-4 could not be dislodged during cross examination. 15. Having regard to the aforesaid evidence on record, the learned trial Court has convicted the accused/appellant. Mr. A. Sarma, learned Amicus Curie has submitted that since the PW-4 was only 12 years of age at the time of trial, the statement cannot be taken on its face value. On the other hand, Mr. H.K. Sharma, learned Additional Public Prosecutor, placing reliance on two decisions of the Apex Court, reported in AIR 1981 SC 1122 Suresh Vs. State of Uttar Pradesh and 2004 SCC (Cri) 7 Ratansinh Dalsukhbhai Nayak Vs. On the other hand, Mr. H.K. Sharma, learned Additional Public Prosecutor, placing reliance on two decisions of the Apex Court, reported in AIR 1981 SC 1122 Suresh Vs. State of Uttar Pradesh and 2004 SCC (Cri) 7 Ratansinh Dalsukhbhai Nayak Vs. State of Gujrat, has submitted that conviction on the basis of evidence of a child witness is permissible. Referring to the evidence of PW-4, he submits that there is nothing to doubt about the quality and reliability of the evidence of PW-4. 16. In Suresh (supra), the Apex Court dealing with a conviction under Section 302 IPC on the basis of testimony of the sole eye witness, a 5 (five) years old child, held that in absence of evidence to discredit the evidence of the minor child, the same cannot be discredited. 17. In Ratansinh Dalsukhbhai Nayak (supra), the Apex Court held that conviction on the basis of the evidence of a child witness is permissible, if such witness is found competent to justify. 18. In the instant case, the PW-3 in his deposition stated as to how the accused/appellant had come to his shop with a blood stained Dao and demanded a Cigarette. When the accused/appellant left the place, this witness could see the dead body lying about 50 meters away. PW-4 although aged about 12 years of age at the time of deposition, categorically stated as to how the accused/appellant had committed the crime in front of his shop. During cross examination also he stuck to his deposition in chief and categorically stated that he had seen the accused hacking the deceased and that he had hacked him with a "Kalam" Dao and also that the Dao was brought concealed. 19. In view of above, we do not find any infirmity in the impugned judgment of conviction dated 15.07.2009, passed by the learned Additional Sessions Judge (FTC) No. 2, Tinsukia, in Sessions Case No. 64(T)/2008. Consequently the appeal stands dismissed. 20. Registry shall send down the LCR to the learned trial Court along with a copy of this judgment. While appreciating the assistance rendered by Mr. A. Sarma, it is hereby provided that he will be entitled to a hearing fee of Rs. 5000/- to be held by the Legal Service Authority, upon production of a certified copy of this judgment, which shall be provided by the Registry to the learned Amicus Curie tree of cost.