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2014 DIGILAW 474 (GAU)

Poresh Bora @ Chutia v. State of Assam

2014-04-30

B.P.KATAKEY, M.R.PATHAK

body2014
B.P. Katakey, J.:- 1. This appeal is directed against the judgment of conviction dated 17.8.2012 recorded by the learned Sessions Judge, Sivasagar, in Sessions Case No. 57(S-S)/2011, convicting the appellant under section 302, IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000, in default, to suffer rigorous imprisonment for a further period of six months. 2. A criminal investigation was set in motion on lodging of the first information report by Sri Dipak Chutia (PW-6), brother of the appellant, on 20.1.2011 alleging that in that morning his elder brother Poresh Bora @ Chutia killed his mother Kalpana Bora @ Chutia. Based on the said first information report filed, Amguri P.S. Case No. 22/2011 under section 302, IPC was registered. The police during investigation recorded the statement of the persons acquainted with the facts and circumstances of the case under section 161 Cr.PC, cause conduct of the inquest, sent the dead body for post mortem examination and also seized a bamboo lathi with one end pointed. On completion of the investigation charge sheet under section 302, IPC was filed against the accused appellant. The case being exclusively triable by the court of Sessions, the learned Chief Judicial Magistrate, Sivasagar, on 28.3.2011 committed the accused appellant for trial by the court of Sessions and accordingly Sessions Case No. 57(S-S)/ 2011 has been registered. Charge under section 302, IPC was thereafter framed by the learned Sessions Judge on 7.4.2011, which when read over and explained to the accused appellant, he denied the same and claimed to be tried. Hence, the trial commenced. 3. The prosecution in order to bring home the charge levelled against the accused appellant, examined nine witnesses, namely, Dr. Nirmalya Choudhury (PW-1), who conducted autopsy on the dead body of the deceased Kalpana; Sri Rajen Chutia (PW-2); Sri Pulin Chutia (PW-3); Sri Purna Kanta Chutia (PW-4); Sri Durlab Chutia (PW-5); Sri Dipak Chutia (PW-6), the first informant; Sri Premodhar Khanikar (PW-7); Sri Bimal Chetia (PW-8) and Sri Dipak Bora (PW-9), the Investigating Officer. The witnesses examined by the prosecution were duly cross-examined by the accused appellant. The statement of the accused appellant thereafter was recorded under section 313, Cr.PC. No defence witness, however, has been examined by the appellant despite the opportunity given. 4. The witnesses examined by the prosecution were duly cross-examined by the accused appellant. The statement of the accused appellant thereafter was recorded under section 313, Cr.PC. No defence witness, however, has been examined by the appellant despite the opportunity given. 4. The learned Sessions Judge upon appreciation of the evidence on record has convicted the accused appellant as noticed above. Hence, the present appeal. 5. We have heard Mr. R.K. Dutta, learned amicus curiae and Ms. S. Jahan, learned Addl. Public Prosecution, Assam. 6. Referring to the deposition of the prosecution witnesses, it has been submitted by the learned amicus curiae that there being no incriminating circumstances appearing and proved by the prosecution attributable to the accused appellant, the learned Sessions Judge ought not to have convicted the accused appellant under section 302, IPC, more so when the alleged weapon of assault was not sent for serological examination. The learned amicus curiae submits that since there was no eye witness to the occurrence, the conviction though can be based on the circumstantial evidence and the accused can be convicted only if there .are incriminating circumstances appearing against the accused, which forms the chain and it leads to the guilt of the accused alone and no one else, in the instant case there being no such evidence, the judgment of conviction recorded by the learned Sessions Judge needs interference. 7. The learned Addl. Public Prosecutor, on the other hand, referring to the deposition of the prosecution witnesses, more particularly of PWs-2, 3, and 6, has submitted that all of them, in clear terms, have stated about the presence of the accused alone with the deceased on the previous night, apart from the wrong information given by the accused appellant to the co-villagers and also to cremate the dead body in a haste, which circumstances though goes against the accused appellant, he did not explain the cause of death of Kalpana, though he himself during his examination under section 313, Cr.PC admitted that he was alone with the deceased on the previous night, whose dead body was found on the next morning. The learned Addl. Public Prosecution, therefore, submits that the learned Sessions Judge has rightly convicted the accused appellant under section 302, IPC, which does not require any interference. 8. We have considered the submissions advanced by the learned counsel appearing for the parties. 9. PW-1 Dr. The learned Addl. Public Prosecution, therefore, submits that the learned Sessions Judge has rightly convicted the accused appellant under section 302, IPC, which does not require any interference. 8. We have considered the submissions advanced by the learned counsel appearing for the parties. 9. PW-1 Dr. Nirmalya Choudhury, who conducted autopsy on the dead body of the deceased Kalpana Bora alias Chutia, in his evidence has narrated the injuries found on the person of Kalpana Bora, which are as follows: “(i) One incised wound on the head, over the right frontal and parietal bone, measuring about 2 cm x 1 cm x 1 cm. (ii) One incised wound over the left forehead, measuring 2 cm x 1 cm x 1A cm. (iii) One incised wound over the occipital bone—measuring 1 cm x 1 cm x ½ cm. (iv) One abrasion mark over left wrist joint.” The doctor has opined that the cause of death was due to shock and haemorrhage as a result of the injuries sustained by the deceased and the injuries could be caused by sharp edged weapon. The defence did not cross-examine the doctor on the injuries found on the body of Kalpana and as such the injury as found by the doctor stands proved, apart from the cause of the death. 10. The prosecution in order to prove that it was the accused appellant, who has murdered his mother Kalpana, also examined PW-2 Rajen Chutia, who has stated in the court that on the day of occurrence, Kalpana Bora was at home with the accused appellant alone, though he was a married person. During cross-examination this witness has also stated that though Kalpana had two sons, namely, the accused appellant and another, the other son was not at home on that day. PW-3 Pulin Chutia, who is the nephew of the accused, in his deposition has stated that on the next morning of the occurrence after hearing about the death of Kalpana, he went to her house and a bamboo lathi with one pointed end was seized by the police vide Ext.-4 seizure list, of which he was the witness, as shown by the accused appellant. PW-4 Purna Kanta Chutia, a co-villager, has deposed that around 9 a.m. of the following day of occurrence the accused appellant came to his house and informed him that his mother is about to die and on hearing the said news he went to Kalpana’s house, where the accused appellant wanted to cremate his mother, but as they resisted, after noticing the injuries on the person of the mother, he could not do so and accordingly the police was informed. Though this witness during cross-examination has stated that the accused and his brother Dipak used to reside in his house along with the mother, PW-6 Dipak Chutia, younger brother of the accused appellant in his evidence has stated that he was away from home on the day of occurrence and it was Poresh alone, who was with their mother Kalpana on the night of occurrence. Poresh during his examination under section 313, Cr.PC has also admitted that he was alone with her mother on the night of occurrence. 11. From the aforesaid evidence of the prosecution witnesses, the following circumstances are proved by the prosecution against the accused appellant, namely, (i) that the accused and the deceased stayed together in the same house on the night of occurrence, whose dead body was found on the following morning; (ii) the accused tried to mislead the co-villagers about the cause of the death and (iii) he hurriedly tried to cremate the deceased but the villagers did not allow him to do so because of the injuries found on the body of Kalpana and accordingly police was called. The accused also did not explain anything relating to the cause of death of Kalpana, though on the night of occurrence he was alone with Kalpana. 12. Admittedly there was no eye witness to the occurrence. The prosecution case is based on the circumstantial evidence appearing against the accused appellant. In order to sustain conviction, based on the circumstantial evidence, it must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In order to sustain conviction, based on the circumstantial evidence, it must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. Such circumstances must also unerringly pointing only to the guilt of the accused and no one else and such circumstances cumulatively form a chain so complete that with all human probability, the commission of murder was done by the accused alone. 13. In the instant case, the circumstances, narrated above, appearing against the accused appellant points to the guilt of the accused alone and no one else, which cumulatively form a chain and, hence, the learned Sessions Judge has rightly convicted the accused appellant under section 302, IPC, which does not require any interference. 14. The appeal, is, therefore, dismissed. 15. Registry is directed to send down the records. 16. The learned amicus shall be paid his professional fee of Rs. 7,500 by the State, within a period of one month from today.