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2013 DIGILAW 500 (GAU)

Jadav Saikia v. State of Assam

2013-07-31

I.A.ANSARI, INDIRA SHAH

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. By judgment and order, dated 28.8.2009, passed, in Sessions Case No. 51(NL) of 2007, by the learned Sessions Judge, Lakhimpur, the accused-appellant, Jadav Saikia, stands convicted under Section 302 IPC and sentenced to suffer imprisonment for life and pay fine of Rs. 5,000/- and, in default of payment of fine, suffer rigorous imprisonment for another period of 6(six) months. The case of the prosecution may, in brief, be described thus: On 23.07.1997, at about 6-00 P.M., when Chandiram Bora was returning home on his bicycle, accused Jadav Saikia intercepted him on the road and inflicted injuries on his person by means of dao. On hearing hulla, Dimbeswar Bora, elder brother of Chandiram Bora, rushed to the place of occurrence and found Chandiram in injured condition. On being asked by Dimbeswar, Chandiram told him that Jadav Saikia had assaulted and injured him. On hearing the hulla, Atul Bora, younger brother of deceased Chandiram, too, rushed to the place of occurrence and saw that both the hands of Chandiram had been severed and there were injuries on his head and face too. On being asked by Atul Bora, Chandiram told him that Jadav Saikia and others had caused the incident. After sometime, Tileswar, another elder brother of Chandiram, came to the place of occurrence and, having come to know about the fact that Jadav Saikia had injured and killed Chandiram, he went to Bihpuria Police Station and lodged there an Ejahar (Exhibit-1) naming therein not only accused Jadav Saikia, but also Tulu Saikia, Shiva Saikia and Jurmoni Saikia, all brothers of accused Jadav Saikia, as having hacked Chandiram Bora. Treating the said Ejahar as First Information Report (in short, 'FIR'), Bihpuria Police Station Case No. 254/97, under Section 341/302/325/326/34 IPC, was registered against the accused, Jadav Saikia and others, who had been named in the Ejahar. While Tileswar was still present at the police station, accused Jadav Saikia arrived there and informed the police about the death of Chandiram, whereupon police put Jadav Saikia in the lock up and proceeded to the place of occurrence and, on arriving at the place of occurrence, police held inquest over the said dead body, which was also subjected to post mortem examination. During investigation, police recorded statements of the witnesses and a dao, which had been used in causing death of Chandiram, was seized by police by seizure list (Exhibit-2). In course of time, the accused made judicial confession and, in his confessional statement, the accused alleged. "On the day of the occurrence, i.e., on 23.07.1997, at about 5-00 P.M., when I went to see whether water had dried up or not so that I could cast net to catch fish. Right at that moment Chandiram came on a bicycle. Chandiram Bora and I came face to face. The Chandiram threw his bicycle and hit me on the arm with an iron rod and kicked me on the wais and, when he attempted to assault me with the iron rod, to save my life, I lifted the dao which was in my hand and killed Chandiram Bora unintentionally before leaving the scene". On completion of investigation, police laid charge-sheet against accused Jadav Saikia showing the other co-accused as absconders. 2. At the trial, when charges, under Sections 341 and 302 IPC, were framed against accused Jadav Saikia alone, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 11 (eleven) witnesses including the Judicial Magistrate, who had recorded the judicial confession of the accused. The accused was, then, examined under Section 313 Cr. PC and, in his examination aforementioned, the accused denied that he had committed the offence, which was alleged to have been committed by him, his case being that of denial and his confessional statement having been given by him out of fear of the police as he had been coerced to make confession by the police. No evidence was adduced by the defence. 4. Having, however, found accused Jadav Saikia guilty of the offence under Section 302 IPC, 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, this appeal has been preferred by the accused as a convicted person. 5. We have heard Mrs. R.D. Mazumdar, learned amicus curiae, and Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 6. Aggrieved by his conviction and the sentence, which has been passed against him, this appeal has been preferred by the accused as a convicted person. 5. We have heard Mrs. R.D. Mazumdar, learned amicus curiae, and Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 6. Let us commence the discussion of the evidence on record by taking note of the evidence of the doctor (PW 8), who had, on 24.07.1997, admittedly, conducted post mortem examination on the dead body of Chandiram Das and found as follows: 1. Sharp cut injury cutting across the face (right side) and nose up to left side of the face below the left ear. The underlying bones are also cut. Size - 6". 2. Oblique cut injury from the medial side of the right eye up to the tip of the nose. Size -3". 3. Cut injury in the right side of the neck cutting across the underlying bones and the right ear which is cut in two halves up to the right maxillary bone, which is also cut completely. Size - 10". 4. Cut injury in the right side of the back of the skull with the underlying occipital bone also cut. Size - 4". 5. Cut injury in the right side of the forehead with the underlying frontal bone cut. Size - 3". 6. Complete searing of the right hand about 3" below the right orbital fossa. 7. Sharp cut injury in the back of the left upper side, transverse in position. Size - 3" X 1/3". 8. Complete severing of the right hand about 3" below the wrist joint. 9. Cut injury in the back side of the left arm cutting across the humerous. Size - 4". Others organs were found healthy. Rigor mortis present in both the upper and lower limbs. 7. In the opinion of the doctor (PW 8), death was caused due to shock and harmorrhage as a result of the multiple injuries sustained by the said deceased. 8. 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 and, thus, remained unshaken. 7. In the opinion of the doctor (PW 8), death was caused due to shock and harmorrhage as a result of the multiple injuries sustained by the said deceased. 8. 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 and, thus, remained unshaken. We, too, do not notice any thing inherently incorrect or improbable in the evidence of the doctor and, hence, we are clearly of the view that Chandiram had sustained several injuries, as had been described by the doctor, and he died due to shock and harmorrhage, which resulted from the injuries sustained by him. 9. Bearing in mind the fact that Chandiram had sustained multiple injuries, which led to his death, let us, now, come to the evidence of PW 3 (Atul Bora). According to the evidence of this witness, at the time of the occurrence, he was walking on the road and when one of his co-villagers, Dipen Saikia, informed him (PW 3) that Chandiram had been cut, he (PW 3), immediately, rushed towards the culvert and saw accused Jadav Saikia, armed with a dao, going towards the field from the culvert and accused Jadav Saikia's brothers, Tulu, Siba and Jurmoni, armed with dao, lathi, etc., in their hands, were running towards their own house. Thereafter, PW 3, according to what PW 3 has deposed, went near the culvert and saw his brother, Chandiram, lying on the ground with both his hands severed and cut injuries on his head and face and, on being asked, Chandiram's reply was that Jadav and others had caused the incident. It is in the evidence of PW 3 that he, then, raised hue and cry and his elder brother, Tileswar, and other co-villagers arrived there and, thereafter, police, too, arrived there and took away the dead body of Chandiram. 10. It is in the evidence of PW 3 that he, then, raised hue and cry and his elder brother, Tileswar, and other co-villagers arrived there and, thereafter, police, too, arrived there and took away the dead body of Chandiram. 10. While considering the evidence of PW 3, it needs to be noted that, in his cross-examination, the defence had suggested to him that he had told the police that while he had been at Lalit's house, Lalif's son, Dipen, had told him that someone had cut Chandiram near the culvert, that he (PW 3) had not stated before the police that when he had been proceeding to wards the place of occurrence, accused Jadav was coming with a dao and/or that he had also not stated before the police that Chandiram had told him that Jadav and others hid caused the incident. 11. It is noteworthy that all the above suggestions were denied by PW 3. This apart, when the Investigating Officer (PW 8) was examined, the defence did not take any step to elicit from the Investigating Officer that the suggestions, which were made to PW 3, while cross-examining him (PW 3), were true. 12. Thus, the suggestions, offered to PW 3, as indicated above, have remained as mere suggestions and cannot, therefore, be taken to have been proved and shaken the evidence of PW 3 inasmuch as the defence did nothing, while cross-examining PW 3, except putting suggestions, which, as already indicated above, have not been proved. 13. Same is the situation, when we read the evidence of PW 2, Dimbeswar Bora, who is also brother of deceased Chandiram. PW 2 has deposed that, on the day of the occurrence, having "returned home from Bihpuria, he took off his shirt and went out to the road, because of the heat and that, while had been returning home from Bihpuria, he had seen the accused roaming with a 'mit dao' (a traditional big knife) hanging from his shoulder, taking to Tapan Rajkhowa and Kantha Rajkhowa and, on seeing PW 2, Kantha asked him (PW 2) as to where he had been coming from. 14. 14. It is in the evidence of PW 2 that his house is adjacent to the house of the accused and that his house is about 300/400 yards away from the culvert, where the occurrence took place, and, while he was on road, he heard hulla raised from near the culvert and when he reached the culvert, he found his brother, Chandiram, and his (Chandiram's) bicycle lying on the road, and that his another brother, Atul (PW 3), was also near Chandiram. PW 2 to also deposed that, on reaching wear Chandiram, he found that both the hands of his brother, Chandiram, had been severed from below the elbows and there were cut injuries on the head and face of Chandiram and that when he (PW 2) reached there, Chandiram was in the condition to speak and, on being asked by him (PW 2), Chandiram told him that accused Jadav had cut him, that sometime thereafter, his another brother, Tileswar (PW 1), arrived at the place of occurrence and he (PW 2) told him that accused Jadav had cut Chandiram, whereupon Tileswar went to Bihpuria Police Station to inform the police about the incident. PW 2 has further deposed that when he was near Chandiram, Siba and Jurmoni, both brothers of the accused, arrived there with lathis in their hands and one of them gave a blow on him (PW 2) and that when Atul (PW 3), brother of PW 2, challenged them, they fled away and that, thereafter, police arrived there, held inquest over the dead body, recorded his statement and took the dead body away. PW 2 has proved Ext. 1 as the inquest report and Ext. 1(1) as his, signature. 15. In the cross-examination of PW 2, it was suggested by the defence that PW 2 had told the police that at the time of occurrence, he had been sitting at his courtyard and that when one Nabin Bora informed him that his brother, Chandiram, had been cut, he went to the place of occurrence. 1(1) as his, signature. 15. In the cross-examination of PW 2, it was suggested by the defence that PW 2 had told the police that at the time of occurrence, he had been sitting at his courtyard and that when one Nabin Bora informed him that his brother, Chandiram, had been cut, he went to the place of occurrence. It was also suggested to PW 2 that he had not told the police that, on reaching the place of occurrence, when he asked Chandiram about the incident, Chandiram had told him that it was Jadav, who had cut him and/or that he (PW 2) had not told police that, while he had been returning from Bihpuria, he had seen accused Jadav talking to Tapan and others having a 'mit dao' hanging from his shoulder. However, all these suggestions were denied by PW 2 and the defence could not elicit any confirmation from the Investigating Officer to prove that notwithstanding the denial by PW 2, he had not really stated before the police that Chandiram had told him that it was Jadav, who had cut him (Chandiram), and that while he had been returning from Bihpuria, he had seen accused Jadav, having a 'mit dao' hanging from his shoulder, talking to Tapan and others. 16. In the above view of the matter, one has no escape from holding that the evidence of PW 2 has remained wholly unshaken in cross-examination and there is no reason to disbelieve his evidence. 17. As regards PW 1, who, too, is brother of the said deceased, it may be pointed out that the evidence of PW 1 is that on the day of the occurrence, he was at home, that his brother, Chandiram's house is at a distance of about 300/400 yards from his house, that at the time of the occurrence, it was evening and he was walking on the road, when he heard hulla from a place a head of him, he proceeded towards the place and, on going near the said place, he saw his elder brother, Dimbeswar Bora (PW 2), who told him that accused Jadav had cut their brother, Chandiram, who was lying on the road with his bicycle lying near him. PW 1 has also deposed that he saw cut injuries on the head of Chandiram and both the hands of Chandiram had been severed totally from the elbows and the severed hands were lying there, that when he reached near Chandiram, Chandiram wanted to say something, but he could not understand and, thereafter, he went to Bihpuria Police Station and informed orally the police about the occurrence. It has also been deposed by PW 1 that while he was still at the police station, accused Jadav appeared at the police station and informed the police about the occurrence, whereupon the police put accused Jadav in the lock up and came, alongwith him (PW 1), to place of occurrence, and that upon reaching the place of occurrence, police prepared report and took the dead body to the police station, and that he (PW 1), thereafter lodged a written Ejahar, with the police, on the night of occurrence itself. 18. To this witness (PW 1), too, it was suggested by the defence that he had stated before the police that around 7 P.M., on the day of the occurrence, when he was at home, Dipen Saikia, son of Lalit Saikia, came to his house and informed him that accused Jadav had cut his brother, Chandiram, and thrown him near the culvert. The defence also suggested to PW 1 that he had not stated, in his statement before the police, that while he was at the police station, the accused appeared at the police station and informed the police, in his presence, about the occurrence. The suggestions, so offered to PW 1, were denied by PW 1; but the defence, as usual, did not get their suggestions, offered to PW 1, confirmed or proved by the Investigating Officer. Consequently, same as in the case of PWs 2 and 3, the evidence of PW 1 has remained wholly unshaken. 19. Situated thus, it is apparent that the evidence of PWs 1, 2 and 3 clearly shows that Chandiram had named accused, Jadav, as his assailant, when he was lying injured with both his hands severed from his elbow and was about to die. Thus, the oral dying declaration, made by injured Chandiram, implicating the accused-appellant, Jadav Saikia, as his assailant, stands well proved. 20. Thus, the oral dying declaration, made by injured Chandiram, implicating the accused-appellant, Jadav Saikia, as his assailant, stands well proved. 20. Coupled with the above, one cannot avoid noticing that it has also surfaced from the evidence of PW 1 that his brother, Chandiram, had eloped with accused Jadav's sister, Bina, and cohabited with her as husband and wife, but, after she gave birth to four children, Chandiram took away Jadav's younger sister, Aruna, in the year 1996, but, later on, her family members took her back to their home and this led to cases being filed by both the parties. The incident, so described, which has not been denied by the defence, clearly shows that the accused maintained inimical relation with the said deceased. In other words, the accused did have a motive to kill Chandiram. 21. Though a dao, claimed to be the weapon of offence, has been brought on record, we do not attribute much importance to the seizure, so made, inasmuch as the witnesses to the seizure have, according to the evidence on record, not seen as to how the dao had come to be seized by the police nor was the said dao put to any serological test and, thus, the prosecution failed to give any confirmatory test that the said dao bore the blood of the said deceased. 22. Coming to the judicial confession of the accused, it may be noted that PW 11, the Judicial Magistrate, who had recorded the confessional statement of the accused-appellant, has admitted that she had not specifically asked the accused as to whether the police had induced or threatened him to make confession, though she asked the accused if any person had induced or threatened him make confession and, to this query, the accused had responded in the negative. On examining the deposition of PW 11, we notice that PW 11, before recording the confessional statement of the accused, did not make it clear to the accused that even if the accused chose not to make confession, he would not be sent back to the custody of the police. On examining the deposition of PW 11, we notice that PW 11, before recording the confessional statement of the accused, did not make it clear to the accused that even if the accused chose not to make confession, he would not be sent back to the custody of the police. In such circumstances, the confession, which had been, allegedly, made by the accused, cannot be held to be voluntary; more so, when PW 11 had also not asked the accused as to how he had been treated, while in the custody of the police, nor had she specifically asked the accused if the police had beaten, tortured, induced or threatened him. 23. In the circumstances, as indicated above, we consider it wholly unsafe to treat the confession (which the accused-appellant had made) as voluntarily made confession of the accused-appellant. As we do not treat the confession of the accused as voluntary, the question as to what the accused had stated, in his confessional statement, were or were not true, is wholly redundant and immaterial. 24. Notwithstanding the fact that the judicial confession, made by the accused-appellant, has not been relied upon by us, nor have we relied upon the seized dao as the weapon of offence, we do point out that the evidence, given by PW 1, PW 2 and PW 3, has remained wholly unshaken in material particulars and their evidence more than convincingly proves that Chandiram, while lying injured with both his hands severed from his elbow, had told Just before passing away, that it was the accused-appellant, Jadav, who had assaulted and injured him. In the face of such unshaken evidence, particularly, when the medical evidence on record also proves multiple injuries on the dead body of Chandiram caused by sharp-cutting weapon, we are clearly of the view that the accused-appellant has been proved, on the basis of the evidence on record, beyond reasonable doubt, of having intentionally caused death of Chandiram and he is, therefore, guilty of commission of the offence of murder. 25. In the circumstances, pointed out above, we are of the considered view that the finding of guilt, which has been reached against the accused-appellant by the learned trial Court, does not suffer from any infirmity, legal or factual. The conviction of the accused-appellant and the sentence, passed against him, cannot, therefore, be interfered with. 26. 25. In the circumstances, pointed out above, we are of the considered view that the finding of guilt, which has been reached against the accused-appellant by the learned trial Court, does not suffer from any infirmity, legal or factual. The conviction of the accused-appellant and the sentence, passed against him, cannot, therefore, be interfered with. 26. Because of what have been discussed and pointed out above, we do not find any merit in this appeal. This appeal fails and the same shall accordingly stand dismissed. 27. Let the amicus curiae be paid a sum of Rs. 5,000/- for her valuable assistance rendered to the Court. Send back the LCR. Appeal dismissed.