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2015 DIGILAW 1520 (GAU)

BUDHUA MUNDA v. STATE OF ASSAM

2015-12-11

B.K.SHARMA, PARAN KUMAR PHUKAN

body2015
JUDGMENT : P.K. Phukan, J. This appeal is directed against the judgment and order dated 22.04.2013 passed by the learned Additional Sessions Judge (FTC), Nagaon in Sessions Case No. 228/2007 convicting the accused appellant under Section 302 of the IPC and sentencing him to Rigorous Imprisonment for life and to pay fine of Rs.5,000/-, in default, to Rigorous Imprisonment for another 2 (two) months. 2. The prosecution was set in motion on the basis of an FIR lodged by the informant Harak Munda, inter-alia, alleging that on the night of 19.08.2007, while his son (the deceased) Maniram Munda was watching TV in the house of one Raju Bakti, his other son, the accused appellant Budha Munda entered into the room and after hacking Maniram Munda in his neck with a dao left that place and consequently, he died on the spot. 3. On the strength of the FIR, Samuguri P.S. Case No. 136/2007 under Section 302 IPC was registered and investigation started. During investigation, the Investigating Officer visited the place of occurrence, prepared sketch map, recorded statement of the witnesses, recovered and seized the weapon of offence, the dao on being shown by the accused appellant who surrendered in the Salana Patrol post on 23.08.2007. After completion of investigation, he submitted Charge-Sheet against the appellant under Section 302 IPC. 4. The case landed up for trial before the learned Additional Sessions Judge (FTC), Nagaon. The prosecution examined as many as 10 witnesses including the Medical Officer who conducted postmortem on the dead body and the Investigating Officer. One witness was examined as a court witness. The learned Additional Sessions Judge on conclusion of the trial found the accused appellant guilty under Section 302 IPC and convicted and sentenced him as stated above. Hence, this appeal. 5. We have heard Mr. P.P. Dutta, learned Amicus Curiae appearing for the appellant and Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 6. The learned Amicus Curiae taking us through the impugned judgment and order and the evidence on record submits that the learned Additional Sessions Judge committed grave illegality by convicting the accused appellant, even though, there is no direct evidence to connect him with the crime. S. Jahan, learned Additional Public Prosecutor, Assam. 6. The learned Amicus Curiae taking us through the impugned judgment and order and the evidence on record submits that the learned Additional Sessions Judge committed grave illegality by convicting the accused appellant, even though, there is no direct evidence to connect him with the crime. The circumstantial evidence, on the basis of which, he has been convicted does not form a complete chain of events conclusively leading to the conclusion that none other than, the appellant has caused the death of the deceased. The learned Amicus Curiae strenuously submits that on the basis of the evidence on record, the accused appellant should not have been convicted by the Court. 7. Per-contra, Ms. S Jahan, submits that though there is no direct evidence showing involvement of the appellant, the circumstantial evidence on record is sufficient to hold the appellant guilty for causing the death of the deceased. Supporting the impugned judgment and conviction, the learned Additional Public Prosecutor submits that no illegality has been committed by the learned Additional Sessions Judge requiring interference by this Court. 8. In the backdrop of the aforesaid contentions and in order to appreciate the arguments of both the parties and to examine the correctness of the impugned judgment, we deem it necessary to carefully scrutinise the evidence on record. 9. There is no dispute regarding the death of the deceased Maniram Munda due to cut injuries sustained on his neck on the night of 19.08.2007. Postmortem on the dead body was conducted by PW8 Dr. Durgeswar Bora, Medical and Health Officer of B.P. Civil Hospital, Nagaon on 20.08.2007. On examination of the dead body, he found the following injuries:- 1. One deep incised wound over the left lateral aspect of the neck. 2. ?rd of the neck is severed, severing spinal cord and cervical vertebara. 10. He opined that death was due to shock and hemorrhage as a result of the injury sustained and he proved the postmortem report as Ext. 2. The evidence of the doctor is also corroborated by PW1, PW2, PW3, PW5, PW6, PW10 and CW1. Uncontroverted evidence of the doctor coupled with the evidence of the other prosecution witnesses established that the death of Maniram Munda was caused due to the injuries sustained over his neck, which almost severed his head from the neck. 11. 2. The evidence of the doctor is also corroborated by PW1, PW2, PW3, PW5, PW6, PW10 and CW1. Uncontroverted evidence of the doctor coupled with the evidence of the other prosecution witnesses established that the death of Maniram Munda was caused due to the injuries sustained over his neck, which almost severed his head from the neck. 11. There is no direct evidence to connect the accused with the commission of the crime and none of the witnesses examined by the prosecution saw him causing the injuries to the deceased and the entire prosecution case rest on circumstantial evidence. 12. The principles of law relating to circumstantial evidence has been laid down by the Apex Court in the landmark judgment in Sharad Birdhichind v. State of Maharashtra AIR 1984 SC 1622 , wherein, the Apex Court held as follows:- "(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 13. In the light of the above principles of law laid down by the Apex Court, we have now to decide whether in the present case, the circumstantial evidence indicated by the prosecution witnesses form a complete chain of events leading to the conclusion that, none other than the appellant had caused the death of the deceased. 14. Turning to the evidence on record, we have found from the evidence of PW1, PW2 and PW3 that the deceased Maniram Munda on the night of the occurrence, was watching TV in the house of PW1 Sanju Bakti along with PW1, PW2 and PW3. While watching TV all of them fell asleep. 14. Turning to the evidence on record, we have found from the evidence of PW1, PW2 and PW3 that the deceased Maniram Munda on the night of the occurrence, was watching TV in the house of PW1 Sanju Bakti along with PW1, PW2 and PW3. While watching TV all of them fell asleep. At night hearing the sound of falling water, they got up and saw Maniram Munda on the chair and they also noticed blood gushing out from the cut injury on his neck which was making the sound. They raised hue and cry and went out to inform others. The mother of the deceased CW1 who was in the adjacent room cutting betel nut at that time, saw the accused running away from the house with a dao in his hand. It was she, who first noticed the accused going away from that place with the dao and she followed him to the house of his daughter Shila Nayak, situated nearby. She also saw the accused appellant washing the dao with water taken from a well in the house of her daughter PW5 Shila Nayak. 15. Evidence of PW5 is that the accused appellant Budhua Munda came to her house in the night, asking for water and she asked him to draw water from the well and drink. After drinking water, he left. She was informed by her mother CW1 that he had cut Maniram Munda. The following circumstances emerged from the evidence of the prosecution witnesses PW1, PW2, PW3, PW5 and CW1:- 1. The deceased Maniram Munda was watching TV at the relevant time in the house of PW1 along with his other relatives including PW1, PW2 and PW3. 2. They fell asleep while enjoying TV and the sound of falling water awakened them. 3. They saw the deceased sitting on the chair with cut injury on his neck. 4. They saw the accused on the road and CW1, who first came out, saw the accused appellant going away with a dao in his hand. 5. The accused appellant went to the house of PW5 and asked for water and he washed the dao with water. 16. The weapon of offence was the dao which was seen in the hands of the accused appellant at the relevant time. 5. The accused appellant went to the house of PW5 and asked for water and he washed the dao with water. 16. The weapon of offence was the dao which was seen in the hands of the accused appellant at the relevant time. Evidence of the Investigating Officer PW10 reveals that after arresting the appellant, he recorded his statement and he had admitted that he had thrown the dao in the jungle. The disclosure statement of the accused appellant was recorded by him and on the basis of the disclosure and on being led by the accused, the dao was recovered from a forest area, namely, Puthijuri, near the house of one Madhu Urang. The seizure Ext. 1 has been duly proved. The dao was seized and recovered in presence of the prosecution witnesses PW4, PW7 and PW9, who also put their signature in the seizure. The seized dao was produced during the trial and it was identified during the trial. 17. It clearly emerges from the evidence of the seizure witnesses and the evidence of the Investigating officer that the dao was recovered and seized on being led and shown by the accused appellant from Puthijuri area and there is no room for doubt regarding the disclosure statement made by the appellant before the Investigating Officer which has been recorded and marked as Ext. 4. 18. It is also established that at the relevant time, the accused appellant was in the custody of the police. Such a statement made by the accused while in custody of police is admissible in evidence under Section 27 of the Evidence Act. The essential ingredient of the Section is that the information given by the accused must lead to the discovery of the fact which is direct outcome of such information. It is a settled law that only such portion of the information given as distinctly connected with the said discovery of the fact must relate to the commission of some offence. 19. In the present case, disclosure statement has been recorded by the Investigating Officer and the accused appellant himself led the police to the place where he had thrown the dao and it was recovered at his instance from that place which was only known to him. 20. 19. In the present case, disclosure statement has been recorded by the Investigating Officer and the accused appellant himself led the police to the place where he had thrown the dao and it was recovered at his instance from that place which was only known to him. 20. In the given circumstances, it is well established that the discovery was made at the instance of the accused and the prosecution has been able to prove the most important circumstance of the case. 21. The motive for the murder has also been established as the accused appellant himself in his statement under Section 313 Cr.P.C. admitted that he had a quarrel with the deceased prior to the occurrence for money. That apart, he admitted that on that particular night, he visited the house of PW5 to drink water from the well. The admission so made by the accused appellant is a relevant fact and is a strong circumstance appearing against him. 22. From what has been discussed above, it is clear that the evidence of PW1, PW2, PW3, PW5 and CW1 forms a complete chain which is consistent only with the hypothesis of guilt of the accused appellant and excludes any other hypothesis. The deceased watching TV with PW1, PW2 and PW3 and all of them falling asleep, the dead body of the deceased on the chair with cut injury on his neck, the accused appellant going away from that place with a dao stained with blood, washing of the dao in the house of PW5, recovery of the dao in the instance of the accused, his abscondence and subsequent surrender in the police station, all these circumstances clearly pointed to the guilt of the accused in the commission of the crime and it is established beyond doubt that the accused appellant had committed the murder of his brother Maniram Munda. The nature of the injury and the bodily part on which it was caused established that he intended to cause his death and injury was sufficient in the ordinary course of nature to cause death. 23. In view of what has been discussed above, we have no hesitation in holding that the prosecution has been able to prove the charge of murder under Section 302 IPC against the accused appellant beyond all reasonable doubt. 23. In view of what has been discussed above, we have no hesitation in holding that the prosecution has been able to prove the charge of murder under Section 302 IPC against the accused appellant beyond all reasonable doubt. We do not find any infirmity in the judgment of the learned Additional Sessions Judge and the same stands affirmed. The appeal fails and is dismissed. Send down the LCR along with a copy of this judgment to the learned Court below for information and necessary action. 24. While appreciating the services rendered by Mr. P.P. Dutta, learned Amicus Curiae, it is hereby provided that he will be entitled to a hearing fee of Rs.7,500/- (Rupees Seven Thousand Five Hundred), which shall be paid to him by the Legal Services Authority, Assam, upon production of a certified copy of this judgment and order.