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2014 DIGILAW 1052 (GAU)

Doya Mishra v. State of Assam

2014-12-11

C.R.SARMA, PRASANTA KUMAR SAIKIA

body2014
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 22.07.2011, passed by the learned Additional Sessions Judge (FTC), Sivasagar in Sessions Case No. 157(S-C) 2010, whereby the learned Sessions Judge convicted the appellant under Sections 302 IPC and sentenced him to suffer rigorous imprisonment for life and pay fine of Rs. 2,000/-, in default, suffer simple imprisonment for another period of two months. It has been directed that the period of detention, already undergone by the petitioner, shall be treated as set off under Section 428 Cr. P.C. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this appeal from jail. As there was none to represent the appellant, Mr. R. Islam, learned Counsel, has been appointed as the Amicus Curiae to represent the appellant 2. We have heard Mr. R. Islam, learned Amicus Curiae and Ms. S. Jahan, learned Additional Public Prosecutor, Assam. The prosecution case, may, in brief, be stated as follows:- "On 24.07.2010, at about 8 p.m., when the informant and her husband, namely, Gopal Liksan (hereinafter called the 'deceased'), were returning home from the market, the appellant had suddenly attacked the deceased, from behind, with a 'dao' and inflicted blows on him, as a result of which, the deceased sustained several injuries, on various parts of his body including the neck and the trachea. Though the informant tried to protect her deceased husband and snatched away the 'dao' from the accused, the accused had pushed her down to a drain. The deceased succumbed to the injuries at the place of occurrence itself." 3. The wife of the deceased (PW-1) lodged an FIR (Ext. 2), on the next day, with the Officer-in-charge, Namtola Police Out Post The FIR was registered as Namtola P.S. Case No. 23/2010, under Section 302 IPC and launched investigation into the matter. 4. Prior to receipt of the said FIR, the Officer-in-charge of Sonari Police Station received the information about the incident from the Gaonburha and accordingly, he made entry in the General Diary vide GD Entry No. 625 dated 24.07.2010 (Ext. 6). He was also informed that the accused had surrendered before the VDP of the village. Though the Investigating Officer (for short, I.O.) visited the place of occurrence, on the same night due to darkness, he could not conduct inquest in respect of the dead body. 6). He was also informed that the accused had surrendered before the VDP of the village. Though the Investigating Officer (for short, I.O.) visited the place of occurrence, on the same night due to darkness, he could not conduct inquest in respect of the dead body. He arrested the accused and on being asked, the accused had disclosed that he threw the weapon of assault i.e. the dao into the courtyard of his brother i.e. Gobin Mishra and on being led by the accused, the I.O. had seized the 'dao' (Material Ext. 1) in presence of witnesses vide seizure list i.e. Ext. 4. 5. During the investigation, the I.O. prepared the inquest report (Ext. No. 1), forwarded the dead body to Civil Hospital, Sivasagar for post mortem examination, prepared the sketch map (Ext. No. 7) and got the statement of the informant recorded under Section 164 Cr. P.C. Due to change of jurisdiction of the Police Station, he sent the supplementary case diary along with accused to Namtola Police Station for further investigation. 6. At the close of the investigation, Police collected the post mortem report and submitted charge-sheet (Ext. No. 8) against the appellant under Section 302 IPC. 7. The offence being exclusively triable by the Court of Sessions, the learned Judicial Magistrate 1st Class, Sivasagar committed the case to the Court of Sessions and directed to produce the accused person before the learned Sessions Judge. Accordingly, the learned Sessions Judge, considering the materials, on-record, framed charge under Section 302 IPC. The charge was explained and read over to the accused to which he pleaded not guilty. He claimed to be tried. 8. In order to prove its case, the prosecution examined, as many as, 11 (eleven) witnesses, including the investigating Officer (PW-10) and the Medical Officer (PW-8), who performed the autopsy on the dead body of the deceased. 9. After examination of the prosecution witnesses, the accused person was examined under Section 313 Cr. P.C. He admitted that he had inflicted the injuries on the deceased with a dao and that, the dao, on being left by him, was recovered by Police from the premises of his mother's house. He also admitted that he had confessed before Md. Sonai Ali, (PW-9) that he had cut the deceased and that on being informed by the Gaonburha, Police had apprehended him. He also admitted that he had confessed before Md. Sonai Ali, (PW-9) that he had cut the deceased and that on being informed by the Gaonburha, Police had apprehended him. He further stated that he led the Police to the seizure of the dao from the backyard of Sri Gobinda Mishra, in presence of witnesses. On being asked by the Court, as to whether he had anything else to say, the appellant stated that, on being provoked, he had killed the deceased. He declined to adduce defence evidence. 10. Considering the evidence, on-record, more particularly, the evidence of the wife of the deceased, who was the eye witness to the occurrence, coupled with the recovery of the offending weapon, at the instance of the accused and the nature of the injuries, inflicted by the accused, the learned Sessions Judge came to the findings that the appellant committed the offence under Section 302 IPC. Accordingly, the learned Sessions Judge convicted and sentenced the appellant, as indicated above. 11. Mr. R. Islam, learned Amicus Curiae, appearing for the appellant and canvassing innocence of the appellant, has submitted that, except the evidence given by PW-1, there is no other substantive evidence to show that the appellant had inflicted the fatal blows. It is also submitted that the extrajudicial confession, alleged to be made before Sri Subhash Ch. Bawri (PW-2) and Md. Sonai Ali (PW-9) can't be acted upon for want of corroboration. The learned Counsel, for the appellant, has contended that the learned trial Court committed error by convicting and sentencing the appellant, without sufficient substantive evidence against the appellant. 12. In view of the above, the learned Amicus Curiae has submitted that the impugned conviction and sentence are not maintainable and as such, the appellant is entitle to be acquitted. 13. Refuting the said argument, advanced by the learned Amicus Curiae, Ms. S. Jahan, learned Additional Public Prosecutor, referring to the evidence, on-record, more particularly the evidence of PW-1 i.e. eye witness, has submitted that the occurrence took place in presence of PW-1 and that, her evidence, regarding culpability of the accused remained undemolished. It is also submitted that immediately after the occurrence, the appellant had made extrajudicial confession before PW-2, who was a teacher by profession and Md. Sonai Ali (PW-9) and that their evidence regarding extra judicial confession could not be discredited, despite cross-examination made by the defence. It is also submitted that immediately after the occurrence, the appellant had made extrajudicial confession before PW-2, who was a teacher by profession and Md. Sonai Ali (PW-9) and that their evidence regarding extra judicial confession could not be discredited, despite cross-examination made by the defence. It is also submitted that the recovery of the weapon of assault i.e. i.e. dao supports the prosecution version. 14. In view of the above, supporting the impugned judgment and order, the learned Additional Public Prosecutor has submitted that the prosecution could successfully prove, beyond all reasonable doubt, that none, other than, the appellant had caused the death of the deceased and as such, the learned trial Court committed no error by convicting and sentencing the appellant, as indicated above. It is also submitted that the impugned judgment and order needs no interference. 15. Having heard the learned Counsel, appearing for both the parties, we have carefully perused the evidence, on-record. PW-1 i.e. the wife of the deceased clearly stated that, on the fateful evening, she, along with her husband, was returning home through the road belonging to the Taokak garden and she saw the accused inflicting blows on the neck and face of her deceased husband with a dao. She further stated that though she tried to restrain the appellant, the accused pushed her into the drain. She further stated that, about 4/5 dao blows were given by the accused on her husband and that her husband died before the arrival of the Police. She was a witness to the inquest report (Ext. 1), prepared by the Police. She stated that, on the following day, she lodged the FIR with the Police and that she gave statement (Ext. 3), in the Court. She further stated that they had purchased land from the brother of the appellant and the latter was trying to evict them from the said land. 16. In her cross-examination, she clearly stated that, though there was no electric light at the place of occurrence, yet it was not dark. She denied the suggestion that the appellant did not inflict the blows on her husband. PW-1 was duly cross-examined, on behalf of the defence, no contradiction could be elicited in respect of her said evidence. Her said evidence, given in in-chief, remained uncontroverted and undemolished. 17. She denied the suggestion that the appellant did not inflict the blows on her husband. PW-1 was duly cross-examined, on behalf of the defence, no contradiction could be elicited in respect of her said evidence. Her said evidence, given in in-chief, remained uncontroverted and undemolished. 17. From the evidence of PW-1, it has been clearly established that she accompanied the deceased at the time of the occurrence. Hence, she appears to be a natural eye witness to the occurrence. In the absence of any contradictory evidence, her said evidence cant not be disbelieved, only on the ground that she was the wife of the deceased. She, in her, cross-examination, clearly stated that she had no enmity with the accused. Therefore, there could be no reason for her to falsely implicate the appellant leaving the actual culprit Hence, we find sufficient force in the evidence of PW-1 to believe that the appellant had given the fatal blows on her husband. 18. From the evidence of the I.O. (PW-10), it is found that, on the same night, on receipt of an information from the Gaonburha, he visited the place of occurrence, after making a GD Entry i.e. GD No. 625 dated 24.07.2010 (Ext. 6) and found the dead body of the deceased. According to the I.O., he could not conduct the inquest in respect of the dead body of the deceased due to darkness. However, inquest report was prepared, on the next morning and the dead body was sent for post mortem examination. 19. The Medical Officer (PW-8), who performed autopsy, deposed as PW-8. He stated that on 25.07.2010, he received the dead body of the deceased, vide GD Entry No. 625 dated 24.07.2010. Hence, it appears that the dead body of the deceased was found by PW-10 on the night of 24.07.2010 and the autopsy was done in respect of the said dead body, on 25.07.2010. The Medical Officer found the following injuries: "1. Sharp cutting wound over the left side of the face extending from lobe of let ear to the left side of the envelop of the mouth exposing the underlying mandible. Size of the wound- 5" x 2" x 3". 2. Sharp cutting wound over the left side of the upper path of the neck and obliquely placed, cutting the sternomastoid muscles in each upper part size 4" x 1 1/2" x 2 1/2". 3. Size of the wound- 5" x 2" x 3". 2. Sharp cutting wound over the left side of the upper path of the neck and obliquely placed, cutting the sternomastoid muscles in each upper part size 4" x 1 1/2" x 2 1/2". 3. Sharp cutting wound over the right side of the neck and obliquely placed. Cutting through the trachea in each upper part size 3"x 1 3/4" x 2". Larynx and trachea- Sharp cut wound over the upper part of trachea 1" x 1" x 1/2 " in size. Both chambers of the hear are empty. Other organs are pale. Fracture of angle of the mandible on its left side. Size was 1 1/2" x 1/2" x 1/4"." 20. The Medical Officer, who exhibited the post mortem report, as Ext. No. 5, opined that the death of the deceased was caused due to syncope (shock and hemorrhage) as a result of injuries sustained by him. From the above medical evidence, it is clearly found that the deceased sustained several cut injuries on vital parts of his body i.e. neck and trachea. The said medical evidence supports the evidence of PW-1. The evidence of PW-1 coupled with the medical evidence, given by PW-8 lead to find that the appellant had inflicted the said injuries, which caused the death of the deceased. 21. Both PW-2 and PW-9, who met the deceased immediately after the occurrence, stated that the deceased had made extra judicial confession. PW-2 was a Teacher by profession and PW-9 was a Cultivator and Secretary of the VDP. There is nothing, on-record, to show that the said two witnesses had any adverse interest or unfeeling against the appellant they appear to be man of status, having root in the society. Hence, we find no sufficient reason to believe that they falsely implicated the appellant. Though both PWs-2 and 9 were cross-examined on behalf of the defence, nothing could be established to discredit their evidence. Considering entire aspect of the matter, the evidence given by PW-2 and 9, regarding extrajudicial confession, appears to be reasonable and trustworthy. Hence, the evidence of PW-2 and PW-9 that the appellant had made extrajudicial confession indicating his involvement with the death of the deceased is found to be acceptable. 22. Sri Lalit Tasa (PW-3), Sri Tinku Munda (PW-4), Sri Chandra Kr. Hence, the evidence of PW-2 and PW-9 that the appellant had made extrajudicial confession indicating his involvement with the death of the deceased is found to be acceptable. 22. Sri Lalit Tasa (PW-3), Sri Tinku Munda (PW-4), Sri Chandra Kr. Bhuin (PW-5), Sri Gobin Mishra (PW-6) and Sri Lutfur Rahman (PW-7) had no personal knowledge about the occurrence. They appeared in the place of occurrence after the incident and came to know about the involvement of the appellant with the death of the deceased. 23. PW-5 was witnessed to the inquest and the seizure of the dao. PW-6 and PW-7 have also witnesses the seizure of the dao. PW-9 also witnessed to the said seizure. PW-10 and PW-11 were the investigating Police Officers. From the evidence of the said witnesses, it appears that Police recovered and seized a dao from the courtyard of Sri Gobin Mishra. PW-9 stated that the accused had told that he had thrown the dao to the courtyard of Mr. Gobin Mishra. His said evidence regarding recovery of the dao and extra judicial confession remained unchallenged. 24. In view of the above discussed evidence, we have no hesitation in holding that the prosecution has been able to prove, beyond all reasonable doubt that the death of the deceased was caused by the accused. The facts and circumstances of the case, the nature, gravity, the type of weapon used and the number of injuries inflicted on the deceased lead to find that the appellant had given the dao blows on the vital parts of the body of the deceased with an intention to kill him. Hence, the learned trial Judge has rightly convicted and sentenced him under Section 302 IPC. 25. In view of the above, we find no merit in this appeal. Appeal is dismissed. The impugned conviction and sentence are upheld and affirmed. 26. Before we part with this record, we acknowledge with appreciation the service, rendered by Mr. R. Islam, learned Amicus Curiae and accordingly we order that an amount of Rs. 7,000/- (Rupees Seven Thousand) be paid to the learned Amicus Curiae by the State, as his remuneration. Return the LCR. Appeal dismissed.