Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 139 (GAU)

Samuel Nag v. State of Assam

2015-02-06

C.R.SARMA, M.R.PATHAK

body2015
M.R. Pathak, J.:- 1. This criminal Appeal from jail is preferred by the accused appellant Sri Samuel Nag being aggrieved with the judgment and order dated 29.03.2011 passed by the learned Additional Sessions Judge, (FTC), Sivasagar, in Sessions Case No. 163 (S-C) of 2009, corresponding to GR Case No. 603/2008, arising out of Sapekhati Police Station (District-Sivasagar) Case No. 55 of 2008 by which the appellant/accused has been convicted under Section 302 of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment for life and also to pay fine of Rs. 2,000/-, in default to undergo Simple Imprisonment for another 2 (two) months, setting off the period of detention undergone by him during the investigation and trial of the case against the period of sentence under Section 428 of the Code of Criminal Procedure. The prosecution case, as it emerges from the First Information Report dated 30.09.2008 (Exhibit-3) lodged by Smti. Dipali Nag, wife of the deceased, is that on the night of 29.09.2008 around 10/11 p.m. her 'Dadai Sahaur' (younger brother of her father-in-law) Sri Samual Nag (accused/appellant) killed her husband Sri Patras Nag by hacking him on his head by sharp weapon, while her husband was sleeping on his bed. 2. On receipt of said FIR Sapekhati Police Station Case No. 55 of 208 under Section 302 of the Indian Penal Code corresponding to GR. No. 603 of 2008 was registered against the accused/appellant. 3. During investigation, police on visiting the place of occurrence, drawn its sketch map (Exhibit-5), conducted the inquest on the dead body and prepared the Inquest Report (Exhibit-6), sent the said dead body for post mortem examination, seized the 'Dao' found on the dead body of Patras Nag (Exhibit-1), arrested the accused appellant on 02.10.2008 and recorded the statements under Section 161 Cr.P.C. of the persons who are acquainted with the facts of the case. On receipt of the Post Mortem Report of the deceased Patras Nag (Exhibit-2) and on completion of the investigation, police filed the Charge-Sheet vide No. 38/2009 dated 02.09.2009 under Sections 302 of the IPC against the accused/appellant (Exhibit-7), finding sufficient evidence him. The case being exclusively triable by the Court of Sessions, the learned Sub-Divisional Judicial Magistrate Charaideo, Sonari on 08.09.2009 committed the said GR. Case No. 603/2008 to the Court of learned Sessions Judge, Sivasagar and accordingly, Sessions Case No. 163 (S-C) of 2009 was registered. The case being exclusively triable by the Court of Sessions, the learned Sub-Divisional Judicial Magistrate Charaideo, Sonari on 08.09.2009 committed the said GR. Case No. 603/2008 to the Court of learned Sessions Judge, Sivasagar and accordingly, Sessions Case No. 163 (S-C) of 2009 was registered. 4. On 06.10.2009, learned Sessions Judge, Sivasagar transferred the said Sessions Case No. 163 (S-C) 2009 to the Court of learned Additional Sessions Judge (FTC), Sivasagar for disposal of the same. On 09.10.2009, the learned Additional Sessions Judge (FTC), Sivasagar framed charge under Sections 302 IPC against the accused/appellant for allegedly killing Patras Nag and the charge was read over and explained to him to which the accused/appellant pleaded not guilty and claimed to be tried. As such the trial commenced. 5. In order to bring home the charges, against the accused/appellant, the prosecution, examined 6 (six) witnesses on its behalf. The defence only cross-examined the prosecution witnesses, but did not adduce any evidence. The statement of the accused/appellant under Section 313 Cr.P.C. was recorded on 22.03.2011, where he admitted of killing said Patras Nag and did not adduce any evidence. 6. The learned Additional Sessions Judge (FTC), Sivasagar upon appreciation of the evidence adduced by the prosecution, recorded the impugned judgment of conviction as aforesaid and hence, the present appeal. 7. We have heard Mr. Chinmay Bhattacharyya, learned Amicus Curiae, for the accused/appellant and Ms. Shemima Jahan, learned Additional Public Prosecutor, Assam representing the State. 8. Mr. Bhattacharyya, learned Amicus Curiae for the appellant stated that there is no eye witness to the incident and his conviction is bad as the Trial Court decided the matter on circumstantial evidence though the prosecution failed to complete the chain of evidence to establish the guilt of the accused and that the prosecution failed to prove the guilt of the accused beyond reasonable doubt and as such the impugned judgment of conviction and sentence is liable to set aside and quashed. 9. On the other hand Ms. Jahan, learned public prosecutor supporting the judgment and order of conviction submitted that prosecution has placed sufficient materials to prove guilt of the accused. 10. We have considered the submissions advanced by the learned counsels appearing for the parties and also perused the evidence adduced by the parties in the aforesaid Sessions Case, apart from the judgment of conviction recorded by the learned Trial Court. 11. 10. We have considered the submissions advanced by the learned counsels appearing for the parties and also perused the evidence adduced by the parties in the aforesaid Sessions Case, apart from the judgment of conviction recorded by the learned Trial Court. 11. In order to appreciate the arguments, advanced by the learned counsels appearing for both the parties and to examine the correctness of the impugned Judgment and Order of conviction, it will be appropriate to briefly scrutinize the evidence on record. 12. The prosecution examined Dr. Biswajit Dutta (P.W.5), the Autopsy Doctor. In his evidence said P.W.5 deposed that on 01.10.2008, while he was serving as Medical & Health Officer at Sivasagar Civil Hospital, he conducted the post mortem on the deceased persons Patras Nag and gave the Post Mortem Reports vide Exhibit-2. According to him the said deceased was about 30 years old and was identified by constables Pranab Dihingia, and Mannual Nag. During his examination of the said dead body, he found a healthy male body with rigor mortis present with the following wounds: "(i) cut injury about 3" x 3" on frontal bone extending from right eyebrow to the right ear cutting all the vital structure and surrounding the soft tissues, right orbit protruded, (ii) cut injury about 2"x3" on right scapula, (iii) right side of the head full of clotted blood and left side empty." The said Autopsy Doctor (P.W.5) also deposed that the remaining organs of the deceased were found healthy and that all the injuries were anti mortem in nature. He opined that the cause of death of the deceased was due to shock and hemorrhage following the injuries sustained by him and the injuries were homicidal in nature. P.W.5 further opined that the injuries were caused by sharp cutting weapon like 'Dao' and that injury No. (i) is sufficient to cause the death of a person in ordinary course. In cross examination P.W.5, the Doctor stated that in his report he did not mention when he conducted the postmortem examination after the death of the deceased and that in his report he did not describe the type of weapon by which the cut injuries were caused to the deceased. 13. It is seen that the prosecution by examining said P.W.5, the Autopsy Doctor, could prove the injuries found on the body of the deceased and also the cause of his death. 13. It is seen that the prosecution by examining said P.W.5, the Autopsy Doctor, could prove the injuries found on the body of the deceased and also the cause of his death. We are, therefore, required to see as to whether the prosecution could bring home the charge under Section 302 of the IPC against the accused appellant. 14. P.W. 1, Akub Shyam, a cultivator by profession and a seizure witness, in his evidence deposed that he know the accused Samul Nag and also knew the deceased Pataras Nag, who died about a year back. He stated that next day of the incident, he heard that someone killed Patras inside his home and when police visited the place of occurrence, he too went there and saw a pruning knife (kalam kata dao) lying over his chest. He also stated that Exihibit-1 is the seizure memo of the said knife and Exihibit-1 (1) is his signature in it. P.W. 1 stated that later on he heard that Samuel killed Patras and that Patras was Samuel's nephew. The said P.W. 1 stated that they fought among themselves over their share of land and orchards and that Patras quarreled with the accused Samuel with regard to the issue of selling of his share of land. P.W. 1 also stated that he saw dead body of Patras inside his house on his bed with head injury and since the dead body was covered with a cloth, he did not see any injury on the body of the deceased but saw that the cloth stained with blood. At this stage P.W. 1 was declared hostile by the prosecution. 15. P.W.2, Robin Nag, a laborer by profession, in his evidence deposed that accused Samuel is his brother and deceased Patras was his nephew, who died about one and half years back. He stated that on the next day of the incident, around 8 in the morning, when Dipali, Pataras's wife, informed that someone killed Patras inside the house, then he went there and found the dead body on the bed and saw injuries on his head. P.W.2 also stated that when he asked the accused Samuel, he denied about committing the incident. But as Pataras's wife stated that it is Samuel only, who committed the incident, then people apprehended Samuel and handed him in the Sapekhati Police Station. P.W.2 also stated that when he asked the accused Samuel, he denied about committing the incident. But as Pataras's wife stated that it is Samuel only, who committed the incident, then people apprehended Samuel and handed him in the Sapekhati Police Station. P.W.2 also informed that Dipali, (wife of deceased Patras) told him that Patras had conflict with Samuel with regard to land. At this stage P.W.2 was declared hostile by the prosecution. 16. P.W.3, Kanuram Gogoi, a tea planter, in his evidence deposed that he know Samuel and also knew the deceased Patras who died about 3 years back. He stated that he is the VDP Secretary of Holongmara Village and one day in the morning, Budhu, elder brother of the accused Samuel came to his residence and informed him that his nephew Patrasa's dead body is lying in his hiuse. Said P.W.2 also stated that prior to Budhu's arrival, Samuel came to his house and told him that Patras's dead body is lying in their house and that he killed Patras. P.W.3 stated that thereafter he along with Izrial Dongi took Samuel to the Sapekhati Police Station and handed him there and on the same day, police went to the place of occurrence, found a 'dao' near the dead body and seized the same vide Seizure Memo Exhibit-1 to which he is the signatory. In cross examination, P.W.3 stated that before signing the Seizure Memo, its content was not disclosed to him and that the dead body of Patars was found inside his house, lying in the ground. He stated that at that time police took pictures of the dead body, but he did not notice the weavings/apparels of the deceased. In his cross examination, the P.W.3 stated that around 10 am. he with Izrial, took the accused Samuel to the Police Station and Police did not ask him much. He also stated that he did not see the 'dao' in the Court. 17. P.W.4 Isrial Dongi, in his evidence deposed that he know the accused Samuel and knew the deceased Patras, who died about 2 years back. He stated that after the death of Patras, one day accused Samuel came to his house and stated that he had a fight with Patras and requested him to write it in a paper. 17. P.W.4 Isrial Dongi, in his evidence deposed that he know the accused Samuel and knew the deceased Patras, who died about 2 years back. He stated that after the death of Patras, one day accused Samuel came to his house and stated that he had a fight with Patras and requested him to write it in a paper. Said P.W.4 stated that after sometime Budhu, the elder brother of the deceased Patras, with VDP Secretary came and told him that Samuel killed Patras and that Patras's dead body is lying in their house. He also stated that when the VDP Secretary Kanuram took Samuel to the Police Station, he also accompanied them and that when police visited the place of occurrence and examined the dead body, he saw a cut injury on Patras's face and that Police found a 'dao' near the dead body of Patras which was seized vide Seizure Memo (Exhibit-1) to which he is one of the signatory. In his cross examination P.W.4 stated that police did not tell him what was written in the paper (seized memo) and when police asked him to sign on it, he accordingly put his signature on it. He also stated that he did not see the seized dao in the Court and that police did not interrogate him much. In his cross P.W.4 also stated that he did not notice the apparel of the deceased and in which direction it was lying. P.W.4 further stated that the deceased Patras use to quarrel with people after consuming liquor and does not know any other about the incident. 18. P.W.6, Hiranya Kr. Dohotia, Inspector of Police, in his evidence deposed that on 30.09.2008 he was serving as Officer-in-Charge of Sapekhati Police Station and on the said date he received a written FIR from one, Smti, Dipali Nag, and accordingly registered Sapekhati PS. Case No. 55/2008 under Section 302 of the IPC and took up the investigation of the case. He stated that few minutes thereafter i.e. after the receipt of the said FIR (received around 10:40 hours), Kanuram Gogoi P.W.3, the VDP Secretary of East Holongmara Village brought the accused of the case Samuel and handed him over to the Police Station, which was recorded vide GD Entry No. 645 dated 30.09.2008 of the Police Station (Exhibit.4) and after interrogating him, the accused Samuel was arrested. He also stated that statements of Kanuram Gogoi (P.W.3) and Izrial Dongi (P.W.4) were recorded in the police station itself and thereafter, he visited the place of occurrence as shown by the informant and on reaching there, he prepared the sketch map (Exhibit.5) of the place of occurrence, prepared the Inquest Report (Exhibit.6) in presence of the Executive Magistrate and sent the dead body for Post Mortem examination. He also stated that he seized a 'dao' with blood stain in it with seizure report Exhibit-1, recorded the statements of the witnesses present at the place of occurrence and also requested the Court to record the statement of Dipali Nag under Section 164 Cr.P.C. and also sent the accused Samuel to the jail custody, collected the Post Mortem Report and after his transfer from Sapekhati Police Station, he handed the Case Diary to the succeeding Officer-in-Charge of the said Police Station. He also stated that his successor B.K. Medhi, after going through the Case Diary submitted the Charge Sheet against the accused Samuel Nag under Section 302 of the IPC on the basis of the investigation that he (i.e. the P.W.6) made earlier. He also stated that witness Akub Shyam (P.W. 1) in his statement before him, as recorded, stated that when he (P.W.1) asked the accused Samuel in the morning, he admitted about the killing of Patras Nag and then they handed over him to the police station. P.W.6 also stated that Rabin Nag (P.W.2) in his statement as recorded before him stated that the accused Samuel use to come to his house every day and on the previous day to the incident, he stated that Patras beaten him up as he did not allow him to sale the land and then he advised the accused not to fight with Patras and asked him to stay in his house and t though the accused Samuel stayed in his house, but later he left in the morning and when he came to know about the incident with regard to Patras, he (P.W.2) suspected Samuel and accordingly apprehend him and-the accused Samuel admitted before him (P.W.2) about murdering Patras as Patras had beaten him earlier and that he killed Patras. P.W.6, Investigation Officer of the case deposed that Exhibits - 8 & 9 are the statements of the witnesses Akub Shayam and Rabin Nag before him. P.W.6, Investigation Officer of the case deposed that Exhibits - 8 & 9 are the statements of the witnesses Akub Shayam and Rabin Nag before him. In his cross examination said P.W.6 stated that he investigated the case and examined 5 (five) witnesses, recorded the statement of witness Akub Shayam on 30.09.2008 at the place of occurrence. He denied the suggestion that accused Samuel did not admit about the incident before him. He stated that the incident occurred at night and he visited the place of occurrence on the next day and that the place of occurrence is about 5 KMs. away from the Police Station and that he received the FIR on 30.09.2008 around 10:30 in the morning. He stated that he did not call witness Rabin Nag P.W.2 to the Police Station to interrogate him. He denied the suggestion that witness Rabin Nag did not tell him the statement as recorded in the Exhibit-9 and that he examined 5 witnesses on the same day. P.W. 6 in cross stated that the dead body of the deceased was sent for Post Mortem Examination around 1:30 p.m. on the same day and the dead body was escorted by Constable Pranab Dihingia. He stated that Kanuram Gogoi (P.W.3) brought the FIR to the Police Station and that the informant of the said FIR was Dipali Nag. He also stated that Kanuram Gogoi was examined in the Police Station, who was also a signatory to the Seizure Memo of the 'dao' that was seized in the case on 30.09.2008 itself. He denied the suggestion that he did not interrogate Kanuram Gogoi as stated by him. P.W.6 also stated that witness Kanuram produced the accused in the Police Station. He denied the suggestion that Kanuram Gogoi submitted as tutored by him. He also denied that he did not investigate the matter as per law and riled a false Charge Sheet against the accused. 19. From the above it is seen that as per the Post Mortem Report, Exhibit-2, the decease person namely, Patras Nag, as proved by the autopsy doctor P.W.5, who conducted the post mortem on the dead body of the aforesaid deceased, that his death was caused due to shock and hemorrhage Mowing injuries sustained by him, which were ante-mortem and homicidal in nature that were caused by sharp cutting weapon like 'dao1. Post Mortem Report of the deceased clearly revels that The injury sustained by the deceased As such prosecution proved that death of the deceased person was homicidal. 20. PWs. 3 in his evidence clearly stated that accused Samuel of his own admitted before him that the he, the accused killed the deceased Patras. P.W.4 also stated that the accused Samuel went to his house after the incident in the morning and told him that he quarreled with Patras and he should writ it in a paper for him. It is also seen that P.W.4 in his evidence stated that P.W.3 with Budhu, elder brother of deceased Patras went to his house and informed him that accused Samuel killed Patras and further stated that said P.W.4 accompanied P.W.3 when said P.W.3 took accused Samuel to the Sapekhati Police Station for handing the accused to the said Police Station. P.W.6 in his evidence placed the Section 161 statement of PWs. 1 & 2 as Exhibits - 8 & 9, which shows that accused Samuel admitted of killing Patras before P.W.1. Similarly, P.W.2 in his Section 161 Cr.P.C. statement before P.W.6 told that accused Samuel killed Patras. Moreover, in his Section 313 Cr.P.C. statement recorded by the learned Trial Court on 22.03.2011 accused/appellant Samuel admitted that he killed the deceased Patras. The defense failed to destroy the evidences which were proved by the prosecution. 21. Though there is no direct evidence or any eye witness to the incident that the accused/appellant Samuel killed the deceased person Patras, but all the evidences of the case clearly point the finger to the accused Samuel in committing the crime in the present case. The injuries sustained by the deceased were cut injury on frontal bone extending from right eyebrow to the right ear cutting all the vital structure and cut injury on right scapula, which were caused by a sharp cutting weapon which are homicidal in nature and the injuries are sufficient to cause death of a person in ordinary course. It is clear in evidence that earlier, accused quarreled with the deceased for their land and the incident occurred at night and the deceased was found inside his house lying in pool of blood with above injuries. 22. It is clear in evidence that earlier, accused quarreled with the deceased for their land and the incident occurred at night and the deceased was found inside his house lying in pool of blood with above injuries. 22. From the above, we are of the considered opinion that from the evidence adduced by the prosecution, it lead a cogent and reliable evidence which proved the complete chain of evidence and the circumstances that it is the accused appellant Samuel Nag who killed the deceased person Patras Nag on the fateful night of the date of the incident beyond all reasonable doubts with regard to his guilt in the case. 23. In view of the aforesaid discussion, we are of the view that the judgment of conviction and sentence dated 29.03.2011 with regard to the present accused appellant has rightly been recorded by the learned Additional Sessions Judge (FTC), Sivasagar in Sessions Case No. 163(S-C) 2009, which does not require any interference in appeal and accordingly affirm the conviction and sentence recorded by the learned Trial Court. 24. The Government of Assam is directed to deposit a sum of Rs. 1,00,000/- with the Sessions Judge, Sivasagar within 3(three) months from the date of receipt of the copy of this Judgment, towards compensation under Section 357-A of the Cr.P.C. payable to the wife of the deceased, namely, Smti. Dipali Nag. On receipt of the said amount, learned Sessions Judge, Sivasagar shall disburse the same to said Smti. Dipali Nag, widow of deceased Patras Nag, on her proper identification and obtaining necessary receipt from her. 25. We hereby appreciate the valuable assistance rendered by both Mr. Chinmay Bhattacharyya, learned Amicus Curiae, appearing on behalf of the appellant and Ms. Shemima Jahan, learned Additional Public Prosecutor, Assam representing the State. The learned Amicus Curiae Mr. Chinmay Bhattacharyya shall be entitled to Rs. 7,000/- towards his hearing fees. 26. Accordingly, this appeal stands dismissed. Registry shall send down the records along with copy of the Judgment.