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2013 DIGILAW 539 (GAU)

Chara Mura v. State of Assam

2013-08-07

I.A.ANSARI, INDIRA SHAH

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. This is an appeal against the judgment and order, dated 24.12.2009, passed, in Sessions Case No. 49(M)/2009, by the learned Sessions Judge, Tinsukia, convicting the accused appellant, Chara Mura, under Section 302 IPC and sentencing him to suffer imprisonment for life with payment of fine of Rs. 5000/- and, in default of payment of fine, suffer imprisonment for a period of 6(six) months. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under:- (i) On 11.02.2009, at about 3.00 P.M., accused Chara Mura, assaulted Durga Barla by means of a dao and, as a result of the multiple injuries caused by the accused, Durga Barla succumbed to his injuries on the spot While Durga Barla's dead body was lying on the bed inside the house of the accused, the accused was seen loitering in front of his house by holding a dao in his hand and shouting that there were another five persons yet to be killed. (ii) On the day of the occurrence itself, i.e. on 11.02.2009, at about, 4.00 P.M., Sumita Barla (PW 5), sister of both the accused, Chara Mura, as well as the deceased, Durga Barla, who had seen the dead body of Durga Barla lying on a bed inside the house of the accused and who had also seen the accused, loitering in front of his house holding a dao in his hand, uttering to the effect that there were five more persons to be killed, came to Bordumsa Police Outpost and verbally informed the Officer In-charge that her elder brother, Chara Mura, on that very day, i.e. on 11.02.2009, at about 3.00 P.M., had assaulted her younger brother, Durga Barla, by means of a dao and, as a result thereof, Durga Barla died on the spot. Based on the oral information, so received, P.W. 7 (In-Charge of the said police outpost), made G.D. Entry No. 137, dated 11.02.2009, and took up the investigation of the case. (iii) Police accordingly visited the place of occurrence, over-powered and arrested the accused. The dao, which the accused was holding in his hand, was taken away from the possession of the accused and the same was seized by seizure list (Ext. 2), Material Exhibit 1 being the said dao. Police also held inquest over the said dead body, which was also subjected to post-mortem examination. The dao, which the accused was holding in his hand, was taken away from the possession of the accused and the same was seized by seizure list (Ext. 2), Material Exhibit 1 being the said dao. Police also held inquest over the said dead body, which was also subjected to post-mortem examination. (iv) After the incident and when investigation into the case, on the basis of the said oral information, given by Sumita Barla (PW 5), was still in progress, deceased Durga Barla's widow, Elina Barla (P.W. 1), lodged a written Ejahar, at Madhabpur Police Outpost naming the accused as her husband's killer. On the basis of the said written Ejahar and treating the same as the First Information Report (in short, FIR), Pengeri Police Station Case No. 06 of 2009, under Section 302 IPC, was registered against the accused and, on completion of investigation, police laid charge sheet, under section 302 IPC, against the accused. 2. At the trial, when a charge, under section 302 IPC was framed against the accused, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 7(seven) witnesses. The accused was, then, examined under Section 313(1)(b) Cr.P.C. and, in his examination aforementioned, the accused denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that of denial. No evidence was adduced by the defence. 4. Having, however, 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. 5. 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. D.K. Chomal, learned Amicus Curiae, and Mr. B.J. Dutta, learned Addl. Public Prosecutor, Assam. 7. 5. 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. D.K. Chomal, learned Amicus Curiae, and Mr. B.J. Dutta, learned Addl. Public Prosecutor, Assam. 7. While considering the present appeal, it needs to be pointed out, at the very outset, that though, as already indicated above, the information, which PW 1 (Elina Barla), widow of the said deceased, had lodged, in the form of an Ejahar, at Madhabpur Police Outpost, and was treated as the FIR in the present case, the Investigating Officer (PW 7) has clearly deposed, in his evidence, that on the basis of the oral information, which had already been given by Sumita Barla (PW 5), sister of the accused as well as the deceased, at Bordumsa Police Outpost, to the effect that her elder brother, Chara Mura (i.e., the appellant herein), had assaulted, at about 3 PM, her brother, Durga Barla, by means of a dao, in his house, causing Durga Barla's death on the spot, GD Entry No. 137, dated 11.02.2009, at Bordumsa Police Outpost, was made and the same has been treated as Ext. 4, which reads as follows: At 4 P.M. Receipt of information and Making of entry. Appearing in this P.P. now Smt. Sunita Mura (Barla), D/O. Lt. Narayan Mura (Barla), a resident of No. 2 Mahang village informed verbally that around 3 p.m. Today her elder brother Chara Mura killed her younger brother by cutting him in the house with a dao. Accordingly I make an entry and is prepared to go to the place of occurrence. C. No. 49(M)09 Ext. 4(1) Sd/- S.I. Sri Haren Ch. Bora I.C. Bordumsa P.P. 11.2.04 Sd/- illegible Sess. Judge Tinsukia 10.9.09 8. Accordingly I make an entry and is prepared to go to the place of occurrence. C. No. 49(M)09 Ext. 4(1) Sd/- S.I. Sri Haren Ch. Bora I.C. Bordumsa P.P. 11.2.04 Sd/- illegible Sess. Judge Tinsukia 10.9.09 8. Since the oral information, which PW 5, sister of the accused-appellant, had given to the police, as indicated above, was with regard to commission of a cognizable offence and since, on the basis of the said oral information, investigation into the case, in order to determine the cause of Durga Barla's death and also to identify his assailant, if any, had already commenced, there can be no doubt that the oral information, which had been given by PW 5, was legally the First Information Report of the case inasmuch as the Investigating Officer (PW 7), having acted upon the oral information, so given by PW 5, had already visited the place of the occurrence, inspected the same and also brought the dead body to his police outpost along with the accused. 9. Since the oral information, which was lodged by PW 5, as indicated above, was the First Information Report of the case, it is also worth noticing that the FIR clearly shows the name of the accused-appellant having surfaced as the assailant of his brother, Durga Barla, soon after the occurrence inasmuch as the information, with regard to the occurrence, was given by none other than the sister of the accused to the police at 4 PM, on 11.2.2009, while the occurrence had allegedly occurred at 3 P.M. on 11.02.2009. 10. Bearing in mind, therefore, the fact that the information, so given to the police, with regard to the occurrence, naming the accused as the assailant of Durga Barla, ought to have been treated as FIR, let us, first, consider the evidence of PW 5, whose evidence is of a great significance and extremely relevant. 11. 10. Bearing in mind, therefore, the fact that the information, so given to the police, with regard to the occurrence, naming the accused as the assailant of Durga Barla, ought to have been treated as FIR, let us, first, consider the evidence of PW 5, whose evidence is of a great significance and extremely relevant. 11. According to the evidence of PW 5, at the time of the occurrence, she (PW 5) used to live at the house of the deceased, Durga Barla, and, on the day of the occurrence, while she was in the house of the deceased, Durga Barla's wife, Elina Barla (PW 1), came and reported to her (PW 5) that the accused had committed murder of Durga, whereupon she (PW 5) went to the house of the accused, she saw blood stains in the house and also saw the dead body of Durga Barla lying on a bed, inside the house of the accused, with injuries on different parts of the body. This apart, according to the evidence of PW 5, the accused was seen by her (PW 5) loitering on the road with a dao in his hand and, at that time, the accused, most importantly, had been shouting that 'another five persons were yet to be killed' and that she (PW 5) reported the matter to the Gaonbura (i.e., the village headman) and also went to the police and, then, came back to the place of occurrence along with the police. 12. It is also in the evidence of PW 5 that at the house of the accused, she happened to meet Jamuna Mura (PW 6), wife of the accused, who told her (PW 5) that Durga had come to their house and asked for a glass of water and, while she was offering water to Durga, the accused, suddenly, came and committed the murder. It is also in the evidence of PW 5 that before the occurrence took place, quarrel had taken place between the accused and the deceased regarding land. 13. What is, now, noteworthy is that the defence barely cross-examined PW 5 and all material particulars of this witness's evidence remained not only undisputed, but unshaken too. 14. It is also in the evidence of PW 5 that before the occurrence took place, quarrel had taken place between the accused and the deceased regarding land. 13. What is, now, noteworthy is that the defence barely cross-examined PW 5 and all material particulars of this witness's evidence remained not only undisputed, but unshaken too. 14. In the circumstances indicated above, we have no reason to doubt the truthfulness and veracity of the evidence of PW 5 and her evidence clearly shows that, on coming to know about the fact that Durga Barla had been killed, when she came to the house of the accused, she found Durga Barla's dead body lying on a bed, inside the house of the accused, and the accused, at that point of time, was found loitering on the road with a dao in his hand and shouting that 'another five persons were yet to be killed'. 15. When the facts, as discernible from the evidence of PW 5, are considered, in their proper perspective, the words, uttered by the accused, at the time, when the dead body of Durga Barla was lying inside the house of the accused, assumes great significance inasmuch as the accused was shouting, 'another five persons are yet to be killed'. These utterances more than amply demonstrate that the accused wanted to kill five more persons, apart from Durga Barla, whom he had already killed. 16. When the fact that Durga Barla's dead body was found lying on a bed, inside the house of the accused, with multiple injuries on his body, coupled with the fact that the accused was, at that point of time, found loitering on the road and shouting that he was yet to kill another five persons, are considered together, it is difficult to avoid the conclusion that it was the accused-appellant, who had caused the death of his brother, Durga Barla. 17. 17. We may pause, at this stage, to point out that though PW 5 has claimed that Jamuna, wife of the accused, who was sitting in front of her house, told her (PW 5) that Durga had come to her house and asked for a glass of water and while she was offering water to Durga, the accused, suddenly, came and committed the murder, we keep these pieces of evidence completely excluded, from the purview of our consideration, as hearsay inasmuch as although Jamuna has been examined, she has not, in her evidence, supported the evidence of PW 5, given to the effect as to what she (Jamuna) had, according to the evidence of PW 5, reported to PW 5. 18. While, however, considering the evidence of PW 5, one has to keep in mind that PW 5 has not been alleged to have any enmity with the accused-appellant nor is her evidence, if we may reiterate, given at the trial, has been challenged or disputed. 19. Situated thus, when the evidence of PW 5, as discussed above, is considered minutely, carefully and dispassionately, the accused-appellant emerges as the assailant of his brother, Durga Barla. 20. Coupled with the above, the medical evidence on record, which we would discuss, completely supports the evidence of PW 5 that Durga Barla died as a result of multiple injuries, which he had sustained by a weapon, such as, dao. 21. Let us, therefore, come to the evidence of the doctor (PW 2), who had, admittedly, performed post-mortem examination, on 12.02.2009, on the dead body of Durga Barla and found as follows: External appearance:- One male dead body of average built, dark brown in complexion, eyes and mouth partially open, wearing a black jeans pant and a brown colour full shirt. Rigormortis present. Injuries:- 1. One incised looking wound of size 15 c.m. x 1 c.m. x 3 c.m. present over the left side of the face, extending from angle of mandible to left temporal region. 2. One incised looking wound of size 12 c.m. x 2 c.m. x 3 c.m. present over the left temporal region of scalp. 3. One incised looking wound of size 20 c.m. x 2 c.m. x 3 c.m. present over the posterior aspect of the neck, obliquely placed. 4. 2. One incised looking wound of size 12 c.m. x 2 c.m. x 3 c.m. present over the left temporal region of scalp. 3. One incised looking wound of size 20 c.m. x 2 c.m. x 3 c.m. present over the posterior aspect of the neck, obliquely placed. 4. Three numbers of incised looking wounds of sizes 8 c.m. x 2 c.m. x 2 c.m., 6 c.m. x 2 c.m. x 1 c.m. and 6 c.m. x 2 c.m. x 1 c.m. parallel to each other, obliquely placed over the back of left shoulder and scapular region. 5. One incised looking wound of size 8 c.m. x 3 c.m. x 2 c.m. present over the left upper part of the back of the abdomen. Cranium and Spinal Canal:- Scalp:- as described. Membrane: congested. Brain: congested. Others healthy. Thorax: Larynx and trachea were found congested. Others healthy. Abdomen: walls: as described. Mouth, pharynx and oesophagus were congested. Others healthy. Stomach: partially digested food material mixed with fluid. Smell of alcohol like substance present in the stomach content. All other organs were found healthy. 22. In the opinion of the doctor (PW 2), the death was caused due to shock and hemorrhage, as a result the injuries sustained by the said deceased, the injuries were ante mortem and caused by sharp-cutting object and were homicidal in nature. 23. In his evidence, the doctor (PW 2) has clarified that the injuries were individually sufficient to cause death of a person in the ordinary course of nature. The doctor (PW 2) has also opined that if the wounds are inflicted by Material Ext. 1, which is the seized dao, the injuries, as described above, can be caused. 24. Thus, the evidence of the doctor, his opinion with regard to the nature of injuries found on the dead body of Durga Barla, the cause of death as well as his opinion with regard to the nature of weapon, which might have been used, have all remained undisputed by the defence. We, too, do not notice anything inherently incorrect or improbable in the evidence given by the doctor. 25. We, too, do not notice anything inherently incorrect or improbable in the evidence given by the doctor. 25. Thus, the un-assailed medical evidence on record shows that Durga had sustained as many as five incised wounds on the vital parts of his body, the wounds having been caused by applying force and that the wounds could have been caused by a dao, such as, the one, which was seized from the possession of the accused. 26. It has been submitted by the learned Amicus Curiae that the dao, in question, was not subjected to serological examination and we agree with the learned Amicus Curiae that this is an infirmity in the investigation. Notwithstanding, however, such an infirmity in investigation, when the evidence of PW 5 is considered in its proper perspective and in the light of the medical evidence on record, it reinforces the inference that it was the accused-appellant, who had intentionally caused the death of his brother, Durga Barla. 27. We may, now, briefly refer to the evidence of the other witnesses. In this regard, we may point out that PW 1, wife of the accused, has deposed that on the day of the occurrence, she was informed, at about 3 P.M., by one Dipen that her husband had been killed by his elder brother, Chara Mura, whereupon she (PW 5) went to the place of occurrence (i.e., the house of the accused), and found her husband lying on the bed inside the house of the accused with multiple injuries and the accused, at that point of time, was found loitering on the road with a dao in his hand and shouting that 'another five persons were yet to be killed,' whereupon she reported the matter to the Gaonbura (i.e., the village headman) and also lodged the Ejahar with the police. 28. Since Dipen has not been examined as a witness, the statement, attributed to him by PW 1, needs to be treated as hearsay. 29. What, however, remains unscathed in the evidence of PW 1 is that on being informed about the occurrence, when she reached the house of the accused, she found her husband's dead body lying on the bed, inside the house of the accused, with multiple cut injuries and the accused was, at that point of time, loitering in front of the house shouting that there were another five persons yet to be killed. 30. It can be clearly seen that the evidence of PW 1 substantially supports and corroborates the evidence of PW 5, who is sister of the accused as well as the deceased. 31. So far as PW 3 is concerned, his evidence is not of much significance inasmuch as his evidence is to the effect that, on the day of the occurrence, he had been informed by one Bindu Barla that the accused had committed murder of the deceased and when he went to the house of the accused, he found the dead body of the deceased, which was lying on the ground with multiple cut injuries on the face and abdomen, and accused was seen by him loitering on the road with a dao in his hand. 32. Since Bindu has not been examined as a witness, the evidence given by PW 3, as to what Bindu had reported him, ought to be treated, and we do treat, as hearsay and keep the same excluded from the purview of our consideration. 33. What is, however, crystal clear from the evidence of PW 3 is that while the dead body, in question, was lying inside the house of the accused, the accused was loitering on the road with a dao in his hand. 34. So far as PW 4 is concerned, he claims that sister of Durga Barla (i.e., the deceased) came to his house and informed that accused had caused the death of Durga Barla and, on being so informed, he went to the house of the accused and saw the dead body of the deceased lying in the house and also found wife of the accused on the road and, on being asked, she reported to PW 4 that her husband had killed Durga Barla and she also noticed accused Chara Mura lying, at a distance of about 100 meters from his house, with a dao in his hand. 35. The cross-examination of PW 4 proves the motive of the accused inasmuch as PW 4 has stated that a land dispute, between the parties, was pending for a long time and though the Gaonbura (i.e., the village headman) had tried to make a compromise, the compromise had failed. The evidence of PW 4, thus, shows sufficient motive for the accused to cause death of his brother, Durga Barla. 36. The evidence of PW 4, thus, shows sufficient motive for the accused to cause death of his brother, Durga Barla. 36. Coming to the evidence of PW 6 (Jamuna), wife of the accused, we notice that though she admits that she found Durga Barla's dead body lying on a bed inside her house with multiple cut injuries and also saw her husband standing on the road with a dao in his hand, she does not claim that she had witnessed the occurrence of assault by her husband on Durga Barla. 37. The prosecution, it may be noted, declared PW 6 hostile and examined her. In her cross-examination by the prosecution, PW 6 has admitted to have stated before the police thus, I was interrogated by the I.O. and I stated before the I.O. that on the date of occurrence at about 3 p.m. while I was sleeping on my bed due to pain in my stomach, at that time, deceased Durga Barla came to my room and he asked for a glass of water. I also sated before the I.O. that after giving the deceased a glass of water, Durga asked for a match-box for smoking Biri, at that time, accused person entered into the room with a dao (Kolam Kotari) and assaulted Durga with Kolam Kotari three times and Durga fell down and died on the spot. 38. What, now, needs to be pointed out is that the statement, which PW 6 admits to have made to the police, during investigation, cannot be treated as substantive evidence inasmuch as PW 6 merely admits to have made the statement, which, we have reproduced above, but she does not state, nor the prosecution could elicit from her, by her cross-examination, that what she had stated before the police was the truth. 39. Considering the fact that PW 6 does not admit to have stated the truth before the police, her previous statement, which she had, admittedly, made during the investigation, cannot, therefore, be treated as substantive evidence and the same cannot be of much help to the prosecution. 40. 39. Considering the fact that PW 6 does not admit to have stated the truth before the police, her previous statement, which she had, admittedly, made during the investigation, cannot, therefore, be treated as substantive evidence and the same cannot be of much help to the prosecution. 40. Turning to the evidence of Investigating Officer (PW 7), we may point out, once again, that his evidence is that, on 11.02.2009, while he was attached to Bordumsa Police Outpost, as its In-Charge, Sumita Barla (PW 5) came to the said outpost, at about 4 P.M., and verbally informed him that her elder brother, Chara Mura, assaulted, on that very day, at about 3 p.m., in his house, Durga Barla by means of a dao and, as a result of the assault, Durga Barla died on the spot. According to the evidence of the Investigating Officer (PW 7), the information, so given by Sumita Barla, was recorded in the form of GD Entry No. 137, dated 11.02.2009. The information, so given, as already indicated above, has been proved as Ext. 4. In his cross-examination, the Investigating Officer (PW 7) has clarified that he seized the dao, which is Material Ext. 1, from the possession of the accused and this assertion of PW 7 (Investigating Officer) has gone unchallenged by the defence. 41. What crystallizes from the above discussion is that the dead body of Durga Barla was found lying on a bed, inside the house of the accused, with multiple cut injuries and the shock and hemorrhage, which resulted from the ante mortem homicidal injuries, had become the cause of Durga Barla's death and, at that time, the accused was loitering on the road, in front of his house, with a dao in his hand, which was seized by the police and could have been, in the light of the medical evidence on record, the weapon of offence. This apart, there is consistent evidence on record that the accused was heard, while loitering on the road in front of his house, saying that he was yet to kill five more persons and these facts, when added together, unerringly point to the accused-appellant as the assailant of Durga Barla. 42. This apart, there is consistent evidence on record that the accused was heard, while loitering on the road in front of his house, saying that he was yet to kill five more persons and these facts, when added together, unerringly point to the accused-appellant as the assailant of Durga Barla. 42. Though there is no direct evidence testifying to the effect that the accused-appellant was seen assaulting his brother, Durga Barla, the evidence, which we have discussed above, undoubtedly, points to the accused-appellant as the assailant of his brother, Durga Barla. 43. Because of what have been discussed and pointed out above, we are of the view that the finding of guilt, which the learned trial Court reached, does not suffer from any infirmity, legal or factual. The impugned conviction of the accused-appellant and the sentence passed against him, by the judgment and order, under appeal, do not, therefore, call for any interference. 44. In the result and for the reasons discussed above, this appeal fails and the same shall accordingly stand dismissed. 45. Send back the LCR. Let a sum of Rs. 5,000/- be paid to the learned Amicus Curiae for his valuable assistance rendered to the Court.