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2015 DIGILAW 583 (GAU)

Neol Boro v. State of Assam

2015-05-15

P.K.SAIKIA, RUMI KUMARI PHUKAN

body2015
JUDGMENT AND ORDER Rumi Kumari Phukan, J. - This appeal is directed against the judgment dated 01.06.2012, passed by the learned Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 119/2006, convicting one Sri Neol Boro, appellant, herein, of offence under Section 302 IPC and sentencing him to suffer imprisonment for life and also to pay a fine of Rs. 10,000/- (Rupees Ten Thousand), in default, Rigorous Imprisonment for another 6 (six) months for the offence aforesaid. 2. Being aggrieved by and dissatisfied with the aforesaid judgment, Sri Neol Boro, the appellant (herein after referred to as the 'accused person') preferred this appeal from jail citing several infirmities in the judgment under challenge. 3. We have heard Mr. R.K. Adhikary, learned Amicus Curiae appearing for the appellant and Ms. S. Jahan, learned Additional Public Prosecutor appearing for the State. 4. The case, projected by prosecution in the FIR dated 04.10.2000 and in the subsequent trial, in short, are that on 03.10.2000, at about 8.30 P.M., while Turen Boro, Bhogeswari Boro, Kinaram Boro along with Lakhi Boro (deceased) and accused Neol Boro were discussing about some domestic matter in the courtyard of Turen Boro, the accused, namely, Neol Boro, suddenly attacked Lakhi Boro and hit him with a dao on his neck for which said Lakhi Boro sustained grievous injury and was immediately taken to Hospital where he succumbed to injuries while undergoing treatment. 5. An FIR to that effect on being lodged with I/C, Biharguri Outpost on 04.10.2000, I/C made G.D. Entry and forwarded the same to the O/C, Tezpur Police Station for registering a case and for doing further needful in accordance with law. On receipt of the FIR, O/C, Tezpur Police Station registered a case vide Tezpur P.S. Case No. 557/2000 under Section 302 IPC and ordered one, S.I. Nandeswar Das (PW11) to investigate the case. 6. Being so entrusted with the investigation, S.I. Nandeswar Das, during the course of investigation, visited the place of occurrence, conducted inquest on the dead body of the deceased, sent the same to Hospital for postmortem examination, examined the witnesses, seized certain articles during the course of investigation, prepared the sketch map of the place of occurrence, did other needful and on conclusion of investigation, he submitted Charge-Sheet under Section 302 IPC against the accused person and forwarded him to the Court to stand his trial for the offence aforesaid. 7. 7. The learned Magistrate, before whom Charge-Sheet was so laid, committed the case to the Court of Session since the offence under Section 302 IPC is exclusively triable by the Court of Session. On the receipt of the case on commitment and on hearing the learned counsel for the parties, the learned Sessions Judge framed charge under Section 302 IPC against the accused person and charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. 8. During trial, prosecution has examined as many as 12 (twelve) witnesses including the informant Shri Babuli Boro (PW1), Medical Officer (PW4), who conducted autopsy on the dead body and the Investigating Officer of the case. The statement of the accused person under Section 313 Cr.P.C. was recorded. The accused plea was of total denial. 9. On conclusion of the trial and on hearing the arguments, advanced by the learned counsel for the parties, learned Trial Court was pleased to convict the accused person of offence under Section 302 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in present appeal. 10. Mr. Adhikary, learned Amicus Curiae pointed out that prosecution case is basically based on the testimonies of Turen Boro, (PW2), Kinaram Boro, (PW3) and Bhogeswari Boro, (PW5). However, their evidence cannot be relied on since the evidence of those witnesses suffers from the vice which is commonly called as contradiction. These besides, the testimonies, so rendered by those PWs, are found to be incompatible and inconsistent to one another on fundamental aspects which again makes the evidence of those PWs equally unreliable. 11. In that context, it has been stated that in his evidence, PW3 deposes that deceased Lakhi Boro came to the place of occurrence before the accused came to such place whereas PW5 deposes that it is not Lakhi but the accused Neol who arrived at the place of occurrence before arrival of the deceased at such place. Such inconsistencies in the evidence of PWs only serve to show that the evidence of those PWs cannot be relied on for any purpose whatsoever. 12. Such inconsistencies in the evidence of PWs only serve to show that the evidence of those PWs cannot be relied on for any purpose whatsoever. 12. It has again been contended that apart from those three PWs, no other witnesses could say anything important to throw any light on the matter under scrutiny and as such, if the evidence of the aforesaid 3 (three) PWs are taken out of consideration, then, there remains nothing on record to connect the accused person with the crime in question. He, therefore, urges the Court to acquit the accused person by setting aside the judgment under challenge. 13. On the other hand, Ms. S. Jahan, learned Additional Public Prosecutor, submits that the testimonies, rendered by PW2, PW3 and PW5, who are found to be the eye witnesses to the occurrence are trustworthy since their evidence are found to be consistent, reliable and unswerving on all material points and since there is nothing on record to show that evidence of those witnesses cannot be acted upon for any reason whatsoever. According to the learned Additional Public Prosecutor, the testimonies, so rendered by those witnesses, are found to be confidence inspiring and as such, their testimonies can be relied on without any doubt and suspicion. 14. It is also the case of Learned Additional Public Prosecutor that the evidence of those witnesses established beyond any shadow of doubt that on the fateful night, the accused assaulted the deceased/victim with a dao and in that process, he planted a dao blow on his neck which injured him grievously for which he died sometime thereafter while undergoing treatment. 15. Learned Additional Public Prosecutor, again submits that according to the Doctor, the deceased died for sustaining huge cut wound on his neck which occasioned his death soon thereafter. Such evidence of Doctor gives more and more credence on the claim of PW2, PW3 and PW5 who are found saying that the accused cut the deceased on his neck with a doa, injured him which occasioned his death sometime later and such claim again draws support from the averments made in the FIR, Ext. 2. 16. The evidence of the Investigating Officer, PW12 reveals that during the course of investigation, he seized one scurf, stained with blood and in that connection, he prepared a seizure list (Ext. 6). 2. 16. The evidence of the Investigating Officer, PW12 reveals that during the course of investigation, he seized one scurf, stained with blood and in that connection, he prepared a seizure list (Ext. 6). Seizure of the said article, in the facts and circumstances, lends more and more credence to the prosecution case. She, therefore, urges this Court to dismiss the appeal by assailing the judgment under challenge. 17. Before we proceed further, we find it necessary to have a look on the evidence of PW 4, Dr. Mahesh Chetri, who conducted autopsy on the dead body of the deceased. According to him, on 04.10.2000, he was posted at Kanaklata Civil Hospital, Tezpur. On that day, he conducted autopsy on the body of one Lakhi Boro and found the following: "Injury-Cut wound on the left side of neck. Sharp cut. Size 4 inches X 2 ½ inches. Skin, muscles and left carotid artery cut. Other organs are found normal. The injury was ante mortem in nature caused by sharp weapon. Opinion: In the opinion of PW-4, the doctor, the cause of death was due to shock and hemorrhage as a result of bleeding from cut of carotid artery. He has recognised Ext. 1, the Post Mortem examination Report, where Ext. 1 (1) is his signature. The doctor (PW4) has, further, stated that the injury was sufficient to cause the death of a person in the ordinary course of nature." 18. Evidence of Medical officer reveals that the deceased died due to shock and hemorrhage as a result of bleeding from the cut wound which the deceased sustained on his neck. Being so situated, let us consider the testimonies of persons who are said to be the eye witnesses to the incident in question. They, as stated above, are PW2, Turen Boro, PW3, Kinaram Boro and PW5, Bhogeswari Boro. 19. On perusal of the evidence of those witnesses, it is found that on the fateful evening, in the courtyard of PW2, Turen Boro, Kinaram Boro Bhogeswari Boro and deceased Lakhi Boro were discussing some domestic matters. After some time, the accused too came there and joined them in discussion. In such discussion, Lakhi Boro (victim) proposed that a picnic should be arranged and he wanted to take lead role in it. 20. After some time, the accused too came there and joined them in discussion. In such discussion, Lakhi Boro (victim) proposed that a picnic should be arranged and he wanted to take lead role in it. 20. But such a proposal angered the accused person for whom he planted a dao blow on the neck of the deceased, which injured him profoundly and as such, he was immediately taken to the Hospital, where he died subsequently. We have found that those PWs were subjected between cross-examinations. But such cross-examination, we find, reveals nothing to show that the evidence of those witnesses particularly, PW3 and PW5 cannot be accepted for any reason whatsoever. 21. Though, PW2 did not disclose before the Investigating Officer that on the fateful night, while discussing some matters in his house, the accused planted a dao blow on the neck of the deceased and although, omission to state such an important information to the Investigating Officer amounts to contradiction, the evidence of PW2 cannot be discarded such contradiction notwithstanding since the testimonies, so rendered by PW2 are found to be totally in the line of evidence of PW3 and PW5 who are found to be fully reliable and trustworthy witnesses. 22. We have also found that I/O seized scurf, stained with blood, form the place of occurrence on the strength of seizure list which was proved as Ext. 6. Seizure of such article, in the facts and circumstances of the present case, as contended by learned Additional Public Prosecutor, lends more and more credence to the testimonies, so rendered by PW2, PW3 and PW5 or for that matter to the prosecution case. 23. We have found that the doctor found one cut injury on the neck of deceased which, in fact, occasioned his death. PW2, PW3 and PW5 categorically claim that the accused planted a dao blow on the neck of the deceased which occasioned his death later. The evidence of Doctor, who said that a huge cut wound on the neck of the deceased caused his death, therefore, lends more and more support of the prosecution case. 24. We have found that there is indisputable evidence on record to show that the accused went undergone and remained so for a very long period of time which is why he could not be arrested immediately. 24. We have found that there is indisputable evidence on record to show that the accused went undergone and remained so for a very long period of time which is why he could not be arrested immediately. Abscondence of the accused person, in the facts and circumstances of the present case, again shows that the accused absconded since he committed the crime in question. 25. On considering the entire materials on record, we have found that the prosecution has successfully proved the charge under Section 302 IPC against the accused person beyond all reasonable doubt and as such, all the allegation levelled against the prosecution case are found to be without any substance. 26. In view of the above discussion, we are of the opinion that the judgment under which the accused person stand convicted of offence under Section 302 IPC does not suffer from any infirmity and as such, this appeal is required to be dismissed for being found devoid of merit. 27. Accordingly, this appeal is dismissed. 28. Return the LCR. 29. We deeply appreciate the assistance rendered by Mr. R.K. Adhikary, learned Amicus Curiae. We, therefore, direct the State to pay him Rs. 7000/- (Rupees Seven Thousand) as being his professional fees within a period of 3 (three) months from the date of receipt of the certified copy of this judgment.