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2015 DIGILAW 1217 (GAU)

Monoyel Suren v. State of Assam

2015-09-21

RUMI KUMARI PHUKAN

body2015
ORDER : 1. Heard Mr. D. Talukdar, learned counsel for the appellants and Mr. K. Munir, learned Addl. P.P., Assam. 2. This is an appeal under Section 374 of the Code of Criminal Procedure, 1973, preferred against the judgment & order dated 22.02.2007 passed by the learned Sessions Judge, Sonitpur, Tezpur, in Sessions Case No. 152 of 2003, convicting the appellants under Section 304 Part II/34 and Section 323/34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for 7(seven) years and to pay a fine of Rs. 5000/- in default to suffer R.I. for 6(six) months under Section 304 Part-II/34 and to suffer rigorous imprisonment for 6(six) months under Section 323/34 IPC. 3. The brief facts necessary for disposal of the present appeal is that one Sri Gobinda Bahadur Chetry, resident of Tezpur lodged an FIR before the O/C Dhekiajuli Police Station on 23.6.2003 stating that his garden chowkidar Biren Majhi succumbed to his injuries in his resident in the Tea Estate situated at Village Jurpukhuri. A case was accordingly registered being Dhakiajuli Police Station Case No. 166/03 and, accordingly, invested into and finally submitted charge sheet against the accused persons under Section 302/326/34 IPC. The offence being exclusively trialable by the Court of Sessions, the case was committed to the Court of Sessions accordingly. Charge under Section 302/323/34 was framed by the learned Sessions Judge. On receipt of the case on committal and on being explained, both the accused persons pleaded not guilty to the charges so framed. The prosecution examined as many as 10(ten) witnesses along with the Medical Officer and the Investigating Officer and has held both the accused appellant guilty under Section 304 (Part-II) and Section 323/34 IPC. Both the accused persons were sentenced to rigorous imprisonment for seven years and also to pay a fine of Rs. 5,000/- in default, to suffer simple imprisonment for six months for the offence committed under Section 304 (Part-II)/34 IPC. The accused appellants were also sentenced to suffer rigorous imprisonment for six months for the offence under Section 323/34 IPC. Both the accused persons were sentenced to rigorous imprisonment for seven years and also to pay a fine of Rs. 5,000/- in default, to suffer simple imprisonment for six months for the offence committed under Section 304 (Part-II)/34 IPC. The accused appellants were also sentenced to suffer rigorous imprisonment for six months for the offence under Section 323/34 IPC. Being aggrieved with the aforesaid judgment and order, the present appeal has been preferred on the ground that in-spite of having several infirmities in the prosecution case, not proved beyond all reasonable doubt and on the solitary evidence of the eye witness/PW 3, not at all reliable witness in the case, as has been revealed by the evidence of the Gaon Burah/P.W.4. It has been assailed that the learned Trial Court has failed to appreciate the matters on record in its proper perspective of law and facts and conviction has been based upon the testimony of such witnesses, which is not at all reliable. 4. I have heard learned counsel for both the parties and have also gone through the evidence so recorded by the Trial Court. It is to be noted that apart from the solitary evidence of P.W.3, there is no other eye witness to the occurrence. The learned counsel for the appellant in course of his argument has urged upon this Court to look into the matter that no credibility to the evidence of P.W.3 can be given because of her conduct itself is very doubtful. The above aspects will be revealed from the evidence of P.W. 4 – Sundar Prasad Shahu. On the other hand, Mr. K. Munir, learned Additional Public Prosecutor has pointed out certain aspects that there is no dispute regarding the death of the said Biren Majhi and the date of occurrence and only because of certain suspicion so raised by the evidence of P.W.5 about the conduct of P.W.3, it is difficult to throw away the whole prosecution case as doubtful. The evidence of P.W.3- Smti Archila Surin has also to be accepted because she was also injured in the incident and she was present in the house of the deceased at the time of occurrence. 5. What has been transpired from the submission of learned counsel for both the parties is that they are embarking upon the question of sentence only and not upon the findings of conviction. 5. What has been transpired from the submission of learned counsel for both the parties is that they are embarking upon the question of sentence only and not upon the findings of conviction. Having regard to the respective submissions of both the parties, let us appreciate the evidence on record. 6. P.W.1 Dr. Apurba Krishna Sarmah testified about the fact that he had conducted the post-mortem examination on the body of the deceased Biren Majhi on 23.06.2003 and found two lacerated cut injuries, one on the skull over the frontal bone and the other on the dorsum of the right foot along with multiple bruises and abrasion of various sizes in front and back of the chest. That apart, another injury of fracture of the frontal bone was found. He opined that the injures were anti-mortem in nature and death was caused due to head injury leading to cardio-respiratory failure. 7. The main eye witness to the occurrence is P.W. 3 – Smti Archila Surin and, according to her, she went to the house of the deceased Biren Majhi on the day of occurrence to fetch money which was taken on loan by the deceased from her and while she was in the house of deceased person, suddenly the two accused appellants Kamal Murmu and Monoyel Surin arrived there and started assaulting the deceased with bamboo lathi and waist belt resulting into severe injury on the person of the deceased Biren Majhi who fell down on the ground. Both the accused persons also assaulted P.W.3 and, thereafter, they went away. The said Biren Majhi succumbed to his injuries. The said witness was cross-examined at length and on such examination she divulged that she did not tell anybody about the giving of loan to the deceased Biren Majhi and at the time of occurrence at about 6 P.M., she was cooking meal in the house of the deceased. It is also admitted by her that she had married two times and both her husband had died. She has, however, denied that she visited the house of the deceased for some other purpose than for asking money. She has also referred about two persons Jabiar and Pitambar who also came behind the accused persons and they went away to call the neighbouring people informing about the incident. She has, however, denied that she visited the house of the deceased for some other purpose than for asking money. She has also referred about two persons Jabiar and Pitambar who also came behind the accused persons and they went away to call the neighbouring people informing about the incident. It may be mentioned here that no any such person namely Pitambar and Jabiar have been examined by the prosecution to support her contention. 8. As we find from her evidence that she has given a story of her presence in the house of the deceased which is not consistent itself. At one point of time, she stated that she went to bring back the money she had offered on loan to the deceased and while in cross-examination she stated that she was cooking in the house of the deceased at that evening hours. As has been challenged by the evidence side, there is scope to hold that her presence in the house of the deceased was not natural and she might have suppressed the actual cause of her presence in the house of the deceased. In this context, the evidence of P.W. 4 (Sri Sundar Prasad Shahu) has been pressed into by the learned counsel for the appellant that he being the Gaon Burah has highlighted the facts behind the cause of the incident. According to the said P.W. 4, he was told by the accused appellants along with some other Bengali persons that this P.W. 3 went to the house of deceased Biren Majhi and she was suspected of having illicit relationship with the deceased for which they assaulted both the deceased Biren Majhi and P.W. 3. Accordingly, he went there and found Biren lying dead in his house with injuries on his forehead. P.W. 3 was also having injuries on her right hand and body. It has been replied by the said P.W. 4 that the character of the deceased and P.W. 3 was not good and that P.W.3 was a woman of bad character. The villagers including the accused persons used to complain before him that some young boys used to visit her. It has been replied by the said P.W. 4 that the character of the deceased and P.W. 3 was not good and that P.W.3 was a woman of bad character. The villagers including the accused persons used to complain before him that some young boys used to visit her. The evidence of P.W. 4 also reveals that the accused persons themselves reported the matter to him about such assault made by them, which goes to show that the intention of the accused persons was to give a lesson to the deceased as well as P.W. 3 for the illicit affairs, but not to cause death. But, however, due to such assault made by the two accused persons, the deceased Biren died. 9. From the very conduct of the accused that they used only the lathi and waist belt to assault the deceased is also indicative of the fact that they have no intention to cause death though they might have the knowledge that such assault may likely to cause death. Thus, on appreciation of the evidence, the learned Trial Court has rightly held that the offence will come within the purview of Section 304 (Part-II) IPC. 10. Other evidence on record like P.W. 5 (Dr. Nirmal Ch. Boro) has testified about the injuries so sustained by P.W. 3 which is to the effect that she sustained two penetrating wounds on the right arm and right leg and one abrasion on volt of head. P.W.6 (Sri Satya Nath Sarma) testified about the statement made by P.W. 3 under section 164 Cr.P.C. However, the evidence of P.W.7 (Sri Suresh Mandal) and P.W. 8 (Sri Sushil Rai) is of no help to the prosecution, save and except that they on hearing about the incident, they went to the place of occurrence and found two persons in injured condition. They do not have any knowledge about the occurrence. P.W. 9 (Sri Daya Ram Saikia) and P.W. 10 (Sri Akan Ch. Das) are the Investigating Officers who have testified about the investigation and the filing of charge-sheet. They do not have any knowledge about the occurrence. P.W. 9 (Sri Daya Ram Saikia) and P.W. 10 (Sri Akan Ch. Das) are the Investigating Officers who have testified about the investigation and the filing of charge-sheet. P.W.10, however, has contradicted the statement of P.W. 3 that she had not stated before him that she went to the house of the deceased to bring back the amount of Rs.100/- which was taken on loan by the deceased Biren and the fact that the deceased asked her to cook the meal and that the deceased would escort her to her house. Thus, the evidence of I.O. has indicated that P.W. 3 has given a different story before the Court which she has not narrated before the I.O. about the cause of her presence in the house of the deceased. From all above, the submission of the appellants’ side can be accepted that because of having some undue affairs between the deceased and P.W.3, she might have went to the house of the deceased which has again given a boost to raise suspicion in the mind of the local people and, as a result of which, the deceased as well as P.W. 3 was assaulted because of having such unholy affair. There appears no any evidence whatsoever that the accused appellants intended to cause death of the deceased as there was simple assault with lathi and waist belt etc. 11. In the given background and also in view of the fact that the accused appellants are in the long litigation since 2003, it can be held that imposition of sentence of three (3) years will meet the ends of justice. The learned Additional Public Prosecutor has also in course of his argument raised no objection to the prayer of the learned counsel for the appellants to interfere with the sentence part of the accused appellants. 12. Accordingly, while maintaining the conviction under Sectin 304 (Part-II), both the accused appellants are sentenced to rigorous imprisonment for three(3) years and also to pay a fine of Rs. 5000/- in default, to suffer rigorous imprisonment for six months. The sentence under Section 323/34 IPC is also converted to a sentence of fine of Rs.1 000/- by each of the accused persons under Section 323/34 IPC, in default, to suffer rigorous imprisonment for three(3) months. Both the sentences will run concurrently. 5000/- in default, to suffer rigorous imprisonment for six months. The sentence under Section 323/34 IPC is also converted to a sentence of fine of Rs.1 000/- by each of the accused persons under Section 323/34 IPC, in default, to suffer rigorous imprisonment for three(3) months. Both the sentences will run concurrently. Period of detention already undergone, if any, shall be set-off. As the accused appellants are on bail, they are directed to surrender before the Court below to serve the sentence within a period of one month from today. The appeal is partly allowed, as indicated above. Return the LCR forthwith.