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2014 DIGILAW 325 (GAU)

DIPAK TIRKY v. STATE OF ASSAM

2014-03-19

B.P.KATAKEY, M.R.PATHAK

body2014
JUDGMENT AND ORDER (ORAL) [Katakey, J.] This appeal, by the convict, is directed against the judgment of conviction dated 23.07.2009 passed by the learned Sessions Judge, Sonitpur at Tezpur, in Sessions Case No.192/2004, convicting the appellant under Section 302 and 324 IPC and sentencing him to undergo rigorous imprisonment for life and also to pay a fine of Rs.5,000/-, in default, to suffer further rigorous imprisonment for another 6(six) months and also to suffer rigorous imprisonment for 2(two) years, respectively. It has further been directed that the sentences will run concurrently. 2. A criminal investigation was set in motion based on the G.D. entry made on 04.12.2002 (Ext.-7) and also the subsequent FIR (Ext.-1) lodged on 05.12.2002, by Khilandar Barla (PW-1), alleging that on 04.12.2002 at about 7.30 P.M. the appellant and his brother Rajen Tirky had assaulted the first informant’s wife and his son Ronald Binod Barla (PW-2) resulting in cut injuries, by means of a sharp edge weapon in the house of Jakarias Kandulna (PW-4) and though the wife was admitted to hospital, she, however, succumbed to the injuries on 05.12.2002. Based on the said first information report, Tezpur Police Station Case No.846/2002 under Section 326/302/34 IPC was registered against both Rajen and Dipak (appellant herein). The police during investigation sent the dead body of the deceased Mary Barla for post mortem examination, recorded the statement of the persons acquainted with the facts of the case under Section 161 Cr.P.C., seized a bicycle as well as one khukri (sharp edge weapon) and upon completion of the investigation submitted the charge-sheet against both Rajen and Dipak under Section 302/34 and 324/34 IPC. The case being exclusively triable by the Court of Sessions, both the accused were committed for trial to the Court of Sessions and accordingly Sessions Case No.192/2004 was registered. The charges under Section 302/34 and 324/34 IPC were framed on 29.01.2005, which when read over and explained to the accused persons, they denied the same and claimed to be tried. Hence the trial commenced. 3. The prosecution in order to bring home the charges levelled against the appellant and Rajen, examined 13 witnesses, which includes the first informant Khilandar Barla (PW-1), two eye witnesses to the occurrence, namely, Ronald Binod Barla (PW-2) and Smt. Priti Lota Barla (PW-3); Dr. Hence the trial commenced. 3. The prosecution in order to bring home the charges levelled against the appellant and Rajen, examined 13 witnesses, which includes the first informant Khilandar Barla (PW-1), two eye witnesses to the occurrence, namely, Ronald Binod Barla (PW-2) and Smt. Priti Lota Barla (PW-3); Dr. Tilak Bhattacharjee (PW-7), who conducted the autopsy on the body of the deceased Mary Barla and submitted the post mortem report (Ext.-4) as well as the Investigating Officer Sri Tankeswar Bhuyan, ASI (PW-11); apart from Ramdeo Singh (PW-5) and Santosh Singh (PW-6), who are the witnesses to the seizure; Sashi Bhushan Jadav, Bipul Borah and Loknath Deka (PWs-8, 9 and 10, respectively); Dr. Hiranjan Saikia (PW-12), who examined the injured witness Ronald Binod Barla and the S.I. of Police Sri Jayram Bora (PW-13). The witnesses were duly cross-examined by the defence. The statements under Section 313 Cr.P.C. of both the accused persons were also recorded. The defence, however, did not examine any witness despite the opportunity given. The learned Sessions Judge upon appreciation of the evidence adduced, while acquitting Rajen Tirky from the charges levelled against him, however, has convicted the present appellant Dipak Tirky, as has been noticed above. 4. We have heard Mr. B.M. Choudhury, learned counsel for the appellant and Mr. K.A. Mazumdar, the learned Addl. P.P., Assam appearing for the respondent. 5. Referring to the evidence of PWs-1, 2 and 3, it has been submitted by the learned counsel for the appellant that the presence of PW-3 at the time and place of occurrence is doubtful, as neither the PW-1 nor the PW-2 has stated about the presence of PW-3 at the place of occurrence. The learned counsel, therefore, submits that the deposition of PW-3 cannot be taken into consideration for recording any conviction against the appellant. It has also been submitted that the presence of PW-2 at the time and place of occurrence is also doubtful, as the PW-1 did not support the version of PW-2 in that regard. That apart, the learned counsel further submits that the PWs-2 and 3, they do not support each other relating to their presence at the time and place of occurrence. Hence according to the learned counsel, no conviction can be recorded based on the evidence of the alleged two eye witnesses being PWs-2 and 3. Mr. That apart, the learned counsel further submits that the PWs-2 and 3, they do not support each other relating to their presence at the time and place of occurrence. Hence according to the learned counsel, no conviction can be recorded based on the evidence of the alleged two eye witnesses being PWs-2 and 3. Mr. Choudhury, the learned counsel further submits that another circumstance on which the learned Sessions Judge has placed reliance i.e. recovery of the bicycle and the khukri (sharp cutting weapon) and the seizure of the same on being produced by the PWs-5 and 6, is also not believable, as in the seizure memo nothing has been mentioned relating to the accused appellant keeping the bicycle as well as the khukri in the residence of PW-5. Mr. Choudhury further submits that since admittedly the PW-11 Tankeswar Bhuyan, who is an ASI, was not authorized to conduct the investigation into the alleged commission of offence under Section 324/302/34 IPC, the entire investigation was faulty and hence no conviction can be based on such investigation conducted by the PW-11. 6. On the other hand, the learned Addl. P.P., Assam, referring to the depositions of PWs-1, 2 and 3, has submitted that there is no discrepancies or contradiction in their statement and rather all the three witnesses have supported each other relating to the presence of PWs-2 and 3 at the time and place of occurrence. The learned Addl. P.P. further submits that coupled with the evidence of two eye witnesses, namely, PWs-2 and 3, relating to inflicting of khukri blows on the person of the deceased as well as on the person of PW-2, there is another circumstance, which goes against the appellant i.e. recovery of the bicycle as well as khukri, which has been seized vide Ext.-3 seizure memo. The learned Addl. P.P. also submits that though admittedly the PW-11 was not authorized to conduct the investigation, there being no prejudice caused to be shown to the appellant because of investigation by the ASI and the charge-sheet having been filed by the authorised person, namely, Loknath Deka (PW-10), the conviction recorded by the learned Sessions Judge, based on such investigation, cannot be set aside. 7. We have considered the submissions advanced by the learned counsel appearing for the parties. 7. We have considered the submissions advanced by the learned counsel appearing for the parties. We have also perused the evidence of the witnesses examined by the prosecution in order to bring home the charge levelled against the appellant. 8. As noticed above, though two accused persons were charged under Section 302/324/34 IPC, the elder brother of the present appellant Rajen Tirky, however, has been acquitted by the learned Sessions Judge, while convicting the present appellant Sri Dipak Tirky under Section 302 and 324 IPC. 9. The prosecution in order to prove the charges levelled against the present appellant, has examined Dr. Tilak Bhattacharjee (PW-7), who conducted the autopsy on the dead body of Mary Barla. This witness has also proved the post mortem examination report, which has been marked as Ext.-4. It appears from his evidence as well as the Ext.-4 post mortem report that following injuries were found on the person of the deceased :- (i) One sharp cut injury on scalp of six inches long starting from left side of forehead upto vertex, cutting skull bone (frontal and left parietal bone) exposing brain matters. (ii) Another sharp cut injury on the scalp of four inches long starting from left side of vertex extended on the back of scalp cutting skull bone (left parietal bone and left temporal bone) exposing brain matter. (iii) Sharp cut injury on left hand between thumb and index finger of size two inch exposing bone cutting tender. (iv) Sharp cut injury on right thigh of 1 inch and ½ inch depth. According to the doctor, the death was caused because of the haemorrhagic shock. The injuries were found to be ante-mortem in nature. The defence did not cross-examine this witness relating to the injuries found and hence the injuries found on the person of the deceased goes un-rebutted so also the cause of the death. The prosecution, therefore, could prove the cause of the death of Mary Barla because of the injuries caused to her by a sharp cutting weapon. 10. Dr. Hiranjan Saikia (PW-12) has proved the injuries found on the person of the PW-2, Ronald Binod Barla. This doctor has also proved the Ext.-8 injury report, wherefrom it appears that the following injuries were found on the person of PW-2, Ronald Binod Barla :- Incise cut injuries about size 6”x4”x2” with active bleeding. 10. Dr. Hiranjan Saikia (PW-12) has proved the injuries found on the person of the PW-2, Ronald Binod Barla. This doctor has also proved the Ext.-8 injury report, wherefrom it appears that the following injuries were found on the person of PW-2, Ronald Binod Barla :- Incise cut injuries about size 6”x4”x2” with active bleeding. The doctor has opined that the injury found on the person of PW-2 is simple in nature and caused by the sharp cutting weapon. During cross-examination no contradiction, however, could be brought out by the defence. The prosecution, therefore, could prove the nature of injuries found on the person of Ronald Binod Barla (PW-2). The question, therefore, is whether the appellant is the author of the said crime. 11. PW-2 in his deposition has stated that on the evening of 04.12.2002 his mother went to the house of their neighbour Jakarias (PW-4) and after sometime he also went to his house. This witness has also stated that there was altercation followed by assault of his mother by Dipak with a khukri, as a result of which mother received injuries on head and when he tried to rescue her, Dipak also gave blow by means of the khukri on the backside of his neck. PW-3 supporting the version of PW-2 has stated that her father told her to call her mother from the house of Jakarias (PW-4) to have dinner and accordingly she went to the house of Jakarias and saw Dipak assaulting her mother on her head by means of a khukri. This witness has further stated that she also saw Dipak inflicting injuries on the person of her brother Ronald Binod Barla (PW-2) on the backside of his neck. PW-1, the father of the PWs-2 and 3 and the husband of the deceased Mary Barla, is admittedly not an witness to the occurrence. He has stated in his evidence that at around 7.30 P.M. on 04.12.2002, on hearing a commotion from the house of the accused persons, which is situated near their house, he and his wife came out of their house and thereafter his wife went to the house of Jakarias (PW-4) and he returned to his house. He has stated in his evidence that at around 7.30 P.M. on 04.12.2002, on hearing a commotion from the house of the accused persons, which is situated near their house, he and his wife came out of their house and thereafter his wife went to the house of Jakarias (PW-4) and he returned to his house. This witness has further stated that when the dinner was ready, he sent his daughter Priti Lota Barla (PW-3) to Jakarias’s house to call her mother to have the dinner and before that his son Ronald Binod Barla (PW-2) also went to the house of Jakarias to call his mother. It has also been stated that after awhile he heard the scream of the daughter Priti Lota Barla from the house of Jakarias and hearing her shout he immediately went to that house and on arrival he could notice that both his wife and son are lying in injured condition in the courtyard of the house of Jakarias and then he immediately arranged for the treatment and shifted them to the hospital. PW-1, therefore, supported the version of PWs-2 and 3. There is no major contradiction amongst the deposition of PWs-1, 2 and 3 so as to disbelieve the prosecution story as revealed from the evidence of PWs-1, 2 and 3. 12. Another circumstance, which goes against the appellant is the evidence of PWs-5 and 6, who have stated that the accused persons on 04.12.2002 kept the bicycle and also a khukri in the house of PW-5 and told PW-5 stating that he is going to Guwahati. These witnesses have also stated that after hearing that the accused persons have killed Mary Barla, they immediately handed over the bicycle and the khukri, which were seized by the Investigating Officer vide Exts.-2 and 3 seizure memo. It, therefore, appears that the prosecution could bring home the charge levelled against the appellant under Section 324 and 302 IPC. 13. The next contention of the appellant that since the investigation has been conducted by an unauthorized person, namely, PW-11 Tankeswar Bhuyan, no conviction could be based on such investigation, also cannot be accepted as no prejudice is shown to have caused for conducting the investigation by PW-11 Tankeswar Bhuyan, an ASI. That apart, the charge-sheet was filed by the person authorized to do so, namely, PW-10. 14. That apart, the charge-sheet was filed by the person authorized to do so, namely, PW-10. 14. Having regard to the provisions contained in Section 357-A of the Criminal Procedure Code, 1973 and also the fact that the State Government has prepared a scheme for providing funds for the purpose of compensation to the victim or his dependents, who have suffered loss or injury as a result of the crime, we direct the State Government to pay the victim compensation to the tune of Rs.1,00,000/- (Rupees one lakh) only to the PWs-2 and 3, in equal proportion, they being the son and daughter of the deceased Mary Barla. The said compensation shall be paid within a month. 15. In view of the aforesaid position, we do not find any merit in the appeal and hence it is dismissed.