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2014 DIGILAW 465 (GAU)

Bhim Garh v. State of Assam

2014-04-28

B.P.KATAKEY, M.R.PATHAK

body2014
B.P. Katakey, J.- This appeal is directed against the judgment of conviction dated 27.01.2014 passed by the learned Sessions Judge\ Nagaon, in Sessions Case No. 316(N)/2012, whereby and whereunder the appellant has been convicted under section 302IPC and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/-, in default to suffer rigorous imprisonment for a further period of 2 months. 2. A criminal investigation was set in motion on lodging an FIR on 23.06.2012 by Sri. Jadav Gayan (PW-1), brother of the deceased, with the officer in-charge of Bagari Police Out Post alleging that at around 11.30 pm on 22.06.2012 the accused appellant Sri. Bhim Garh, a resident of the same village, killed the informant’s younger brother Sri. Pratap Gayan by inflicting injuries on his neck with a pruning knife and dumped his dead body near his house. Based on the said FIR, Bagari P/P G.D.E. No. 366 dated 23.06.2012 was initially registered and thereafter, Jakhalabandha PS Case No. 85/2012 under section 302 IPC was registered. The police during investigation recorded the statement of the witness under section 161 Cr.P.C., seized weapon of assault, got conduct of inquest and sent the dead body for post-mortem examination. On completion of the investigation, charge-sheet under section 302 IPC was filed by the investigating agency. The offence being exclusively triable by the court of Sessions, the same was committed by the learned SDJM, Koliabor, Nagaon, vide order dated 04.09.2012 and accordingly Sessions Case No. 316(N)/2012 was registered. Thereafter charge under section 302 IPC was framed against the accused appellant on 05.10.2012, which when read over and explained to the accused, he pleaded not guilty and claimed to be tried. Hence the trial commenced. 3. During the course of trial the prosecution examined 8 witnesses, namely, Sri. Jadav Gayan (PW-1), brother of the deceased who lodged the FIR (exhibit-1), Sri. Raghubir Gour (PW-2), Sri. Roky Gour (PW-3), son of the accused, Sri. Sadhu Gour (PW-4), Sri. Bishnu Gour (PW-5), Dr. Pulin Bhattacharyya (PW-6) who conducted autopsy, Sri. Ram Singh Borah (PW-7), brother of the accused and SI. Bikash Borah (PW-8), Investigating Officer. The statement of the accused appellant under section 313 Cr.P.C was thereafter recorded. The accused case was of total denial. No defence witness was examined by the appellant. 4. Sadhu Gour (PW-4), Sri. Bishnu Gour (PW-5), Dr. Pulin Bhattacharyya (PW-6) who conducted autopsy, Sri. Ram Singh Borah (PW-7), brother of the accused and SI. Bikash Borah (PW-8), Investigating Officer. The statement of the accused appellant under section 313 Cr.P.C was thereafter recorded. The accused case was of total denial. No defence witness was examined by the appellant. 4. The trial court upon appreciation of the evidence adduced by the prosecution, in order to bring home the charge framed against the accused appellant, convicted him for the offence committed under section 302 IPC and sentenced him as noticed above. 5. We have heard Mr. D. Talukdar, learned Amicus Curie and Ms. S. Jahan, learned Addl. P.P. 6. The learned Amicus Curiae challenging the judgment of conviction recorded by the trial court has submitted that the trial court ought not to have convicted the appellant under section 302 IPC, there being no incriminating circumstance appearing against the accused, more so, when the chain of circumstances is not complete. The learned counsel submits that even assuming that the prosecution could prove certain circumstances appearing against the accused appellant, there being evidence on record that both the accused and the deceased were taking liquor the whole day on 22.06.2012 and there being also evidence that there was a quarrel between the accused and the appellant, the accused ought to have been convicted under section 304 IPC, more so, when the prosecution has failed to prove the intention of the accused to kill the deceased. 7. Learned Addl. P.P. on the other hand, supporting the judgment of conviction recorded has submitted that as PW-3 in his deposition has stated that the accused was last seen by him with the deceased, he could prove the circumstance of last seen together. That apart PW-3 has also stated about the existence of blood stain in the room belonging to the accused as well as finding of the dead body of the deceased in the pond behind the room of the accused. It is submitted that since the accused did not explain anything except the simple denial, the learned Sessions Judge has rightly convicted the accused under section 302 IPC. The learned Addl. PP further submits that since it is not a case of culpable homicide not amounting to murder, the learned Sessions Judge has rightly convicted the accused appellant under section 302 IPC. 8. The learned Addl. PP further submits that since it is not a case of culpable homicide not amounting to murder, the learned Sessions Judge has rightly convicted the accused appellant under section 302 IPC. 8. We have considered the submissions advanced by the learned counsel for the parties and perused the evidence on record. 9. The accused appellant has not challenged the evidence of Dr. Pulin Bhattacharyya, who conducted the autopsy on the deceased and has found the following injuries on the person of the deceased. “A horizontal cut through injury above the laryx of 4” long 3” wide and depth up to vertebrae in spindle shaped. Structures cut through are skin subscutaqneous tissues, cartiledges platisma muscle, sternomastoid muscles on both sides, earod arteries and veins on both sides.” 10. The doctor opined that the injuries found were anti-mortem in nature-and the death was caused due to shock and hemorrhage due to the injuries sustained. It has also been opined that such injury can be caused by sharp cutting weapon. 11. PW-3, Roky Gour, son of the deceased in his evidence has stated that on the evening of the day of occurrence while he was coming back from the garden he found his father and the accused drinking liquor. He also stated that at about 10 pm he heard noises in the house of his father. This witness has also stated that on the next morning when he visited his father’s house he noticed blood on the floor of the house and also found the dead body of the deceased in the pond behind the father’s house. During cross-examination this witness has stated that nobody except the father and the deceased were present at the house. The prosecution, therefore, could prove certain incriminating circumstances appearing against the accused appellant, namely, both were last seen together on the previous evening taking liquor, presence of blood in the house of the accused and also recovery of dead body from the pond behind the house of the accused. That apart, the accused has fled the scene of occurrence who was arrested with the help of villagers later on. 12. Admittedly, there is no eye witness to the occurrence. That apart, the accused has fled the scene of occurrence who was arrested with the help of villagers later on. 12. Admittedly, there is no eye witness to the occurrence. Conviction based on the circumstantial evidence can be recorded provided there are incriminating circumstances appearing against the accused, chain of circumstances is complete and it leads to the guilt of the accused alone and nobody else. 13. From the discussion of the aforesaid evidence of PW-3 it is evident that the prosecution could prove the aforesaid incriminating circumstances appearing against the accused appellant and the chain of circumstances is complete which leads to the guilt of the accused appellant alone and nobody else. It is also in the evidence that there was no possibility of the presence of any other person other than the accused with the deceased. That apart the accused did not make any attempt to explain the death of the deceased. 14. The submissions advanced by the learned Amicus Curiae that the appellant ought to have been convicted under section 304IPC also cannot be accepted, as there is no evidence to suggest existence of any of the exception to Section 300 IPC so as to constitute culpable homicide not amounting to murder. Simply because single injury on person of the deceased was found cannot be the ground for conviction under section 304 IPC. 15. In view of above, we find no merit in the appeal and hence the appeal is dismissed. 16. The learned Amicus Curiae shall be entitled to a fee of Rs. 7500/- which shall be paid by the State of Assam within a period of 1(one) month from today. 17. The State of Assam, in view of the scheme formulated under section 357A CrP.C., shall pay a sum of Rs. 75,000 to the widow of the deceased, who was dependent on the income of the deceased, who was a daily wage earner, within a period of 1 month from today. 18. The Registry is directed to send down the records forthwith.