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2016 DIGILAW 126 (GAU)

Suklahajowary v. State of Assam

2016-02-23

C.R.SARMA, PARAN KUMAR PHUKAN

body2016
JUDGMENT AND ORDER Paran Kumar Phukan, J. - The judgment of the learned Sessions Judge, Goalpara dated 30.08.2014, passed in Sessions Case No. 299/2013 convicting the accused appellant u/s 302 of the IPC and sentencing him to imprisonment for life and to pay a fine of Rs. 2,000/- in default R.I. for 6 (six) months is the subject matter of challenge in this appeal. 2. The sum and substance of the prosecution case is that on 18.07.2013 the informant Umesh Kachari and his younger brother Barneswar visited the house of the accused appellant at village Chaksan under Rangjuli police station in connection with illness of the accused appellant who is their brother-in-law (husband of their sister). After taking mid-day-meal while they were chewing betel nut and gossiping in the veranda of the house with the elder brother of the accused appellant, suddenly they heard some noise coming from inside the room and when they tried to enter into that room the accused appellant came out armed with a dagger and started chasing them, out of fear they ran out of the house towards road but the accused appellant suddenly changed his mind and came back towards his room. After some time they came back to the house where other people also assembled and saw the dead body of their sister lying on the floor with stab injury on her chest, accused was also lying there in an injured condition. Police also arrived and the dagger was seized from the place of occurrence. The dead body was sent for post mortem examination and the accused appellant who sustained injuries was sent to hospital in an Ambulance. 3. The written FIR, Exbt.-1 was lodged on 18.07.2013, i.e., on the date of the occurrence itself by Umesh Kachari. Police registered the FIR and on completion of investigation submitted charge-sheet against the accused appellant u/s 302 of the IPC. 4. The case came up for trial before the learned Sessions Judge, Goalpara on committal. Prosecution examined 8 witnesses during the trial including the formal witnesses. The defence plea is of total denial. 5. On completion of trial, learned Sessions Judge found the accused appellant guilty u/s 302 of the IPC and convicted and sentenced him accordingly as stated above. 6. Being highly aggrieved and dissatisfied with the judgment passed by the learned Sessions Judge, the accused appellant has preferred this appeal from jail. 7. The defence plea is of total denial. 5. On completion of trial, learned Sessions Judge found the accused appellant guilty u/s 302 of the IPC and convicted and sentenced him accordingly as stated above. 6. Being highly aggrieved and dissatisfied with the judgment passed by the learned Sessions Judge, the accused appellant has preferred this appeal from jail. 7. Heard Mr. R.K. Dutta, learned Amicus Curiae appearing for the accused appellant and also heard Ms. S. Jahan, learned Addl. P.P., representing the State of Assam. 8. None of the witnesses examined by the prosecution saw the accused appellant stabbing his wife and also stabbing himself and the case is based on circumstantial evidence. It is a settled proposition that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The case can be proved by drawing inferences from the surrounding circumstances of the case. The circumstantial evidence is that direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together form a chain of circumstances from which existence of the principal fact or factum probendum can be legally inferred. The Hon'ble Apex Court in a catena of decisions has held that where a case rests squarely on circumstantial evidence the inferences of guilt can be justified only when only incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any person. 9. The Hon'ble Apex Court in a catena of decisions has held that where a case rests squarely on circumstantial evidence the inferences of guilt can be justified only when only incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any person. 9. In Padala Veera Reddy v. State of U.P. reported in AIR 1990 SC 79 , the Apex Court laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:- "(1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction 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." 10. In the vintage decision of the Apex Court in Bhagat Ram v. State of Punjab reported in 1954 SC 621 a similar view has been expressed by the Apex Court and it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must such as to negative the innocence of the accused and bring the offences beyond any reasonable doubt. It is well settled that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. 11. In Barun Chaudhury v. State of Rajasthan reported in AIR 2011 SC 72 the Apex Court has held that in case of circumstantial evidence there must be a complete chain of evidence which would lead to a conclusion that the accused was the only person who could have committed the offence and none else. 12. 11. In Barun Chaudhury v. State of Rajasthan reported in AIR 2011 SC 72 the Apex Court has held that in case of circumstantial evidence there must be a complete chain of evidence which would lead to a conclusion that the accused was the only person who could have committed the offence and none else. 12. Keeping in mind the above observations of the Apex Court let us now turn to the evidence on record to ensure whether it was the accused appellant who had caused the death of his wife by stabbing her with a dagger. 13. Learned Amicus Curiae appearing for the accused appellant while assailing the prosecution case has brought to our notice certain infirmities in the entire prosecution case. His first contention in that although the FIR, Exbt. 1 appears to have been lodged on 18.07.2013 but the printed form of the Fir reveals that it was lodged on 19.07.2013 at about 11:00 AM, for the occurrence which had taken place at about 3:00 pm on 18.07.2013. He has invited my attention to the evidence of PW 8 Dibakar Kalita who at the relevant time was posted as ASI of police at Darranggiri Patrol Post. PW 8 deposed that the incident took place on 18.07.2013 and the FIR was received around 11:00 AM on the following day i.e., on 18.07.2013. PW 8 claims to have made a G.D. entry around 11:00 AM on 19.07.2013 but the extract of the GD entry has not been produced during the trial of the case. Ms. S. Jahan, controverting the submissions argued that the FIR was lodged before Darrangiri Petrol post on 18.07.2013 and the In-charge of the Petrol Post forwarded the same to Rangjuli P.S. for registration of a case and due to this reason in the printed form of the FIR the date of filing has been shown as 19.07.2013. 14. Her next contention is that although the Investigation Officer deposed that the Ejahar was received around 11:00 AM on the following day but the date has been shown as 18.07.2013. It was a simple clerical mistake and no adverse inference can be drawn because of this clerical error. Since the investigation of the case commenced even before registration of the case the GD entry purportedly made on 19.07.2013 lost it significance. The argument of the learned Addl. It was a simple clerical mistake and no adverse inference can be drawn because of this clerical error. Since the investigation of the case commenced even before registration of the case the GD entry purportedly made on 19.07.2013 lost it significance. The argument of the learned Addl. PP merits consideration and I am of the same view that the FIR in fact was lodged on the day of the occurrence itself before the I/C, Darrangiri Patrol Post and it was forwarded to Rangjuli P.S. for registration of a case and due to this reason the date in the printed form of the FIR has been shown as 19.07.2013. Because of the clerical mistake inference cannot be drawn against the prosecution. In the FIR it has been specifically mentioned that on 18.07.2013 at around 3 PM the accused appellant killed his wife Mira Hajowari by stabbing and piercing her with sharp Khukri in his room. On a careful scrutiny of the evidence of the Investigation Officer and the informant and also the FIR Ext. 1 we have found that the FIR was promptly lodged. In the FIR, the date, time and manner of commission of the crime have been clearly spelt out and there is nothing to suspect embellishment or after thought. 15. Now turning to the evidence of the first informant, PW 1 Umesh Kachari I have found that he visited the house of his sister and also the accused appellant being husband of his sister at about 1-2 PM with his younger brother Barneswar and after having meal in the noon time both of them were gossipping in the veranda with the elder brother of the accused appellant and they were chewing Betel Nut. At that time his sister was inside the kitchen and accused appellant was inside his room, he heard the accused appellant calling his wife from his room and as soon as she entered into the room he stabbed her with knife as a result of which she died on the spot. In cross examination he admitted that he had not seen the accused stabbing his sister. He must have presumed since there was none else in the room when the accused appellant stabbed his sister. Before the IO also he had not stated that accused appellant stabbed her. In cross examination he admitted that he had not seen the accused stabbing his sister. He must have presumed since there was none else in the room when the accused appellant stabbed his sister. Before the IO also he had not stated that accused appellant stabbed her. It is in his evidence that his brother peeped inside the room by removing the curtain and at that moment the accused appellant armed with a Khukri chased both of them and after some time the accused entered inside his room and stabbed himself with the Khukri. His evidence further reveals that it was Nipon Kachari, PW 2 who had gone to the police station to inform about the matter and police came and took the accused in an Ambulance. Police examined the dead body in his presence and Magistrate also came and held inquest on the dead body vide inquest report, Exbt- 2 and thereafter dead body was sent for post mortem examination. The Khukri was seized in his presence by police vide Ext. 3. Since PW 1 had not seen the actual occurrence he cannot be treated as an eye witness to the occurrence. 16. The other important witness relied upon by the prosecution is PW 4, Barneswar Kachari who visited the house of the accused appellant on that day to enquire about illness of the accused appellant with his elder brother Umesh Kachari (PW 1). Lending support to the evidence of PW 1 he also deposed that after taking meal while he and his elder brother were gossipping in the veranda and chewing Betel Nut he heard the accused appellant calling his wife and as soon as she entered inside the room he heard scream and he asked as to what had happened and went near the room. The accused appellant came outside the room with a knife in his hand and chased both of them, he took resort in the house of another person. The accused came back and later on when police came and other people assembled he went there again but did not go inside the house. He found his sister lying dead and the accused was also lying in an injured condition in the room. Police seized the Khukri from the place of occurrence which was produced during trial vide M. Ext. 1 and the same has been identified by PW 4. 17. He found his sister lying dead and the accused was also lying in an injured condition in the room. Police seized the Khukri from the place of occurrence which was produced during trial vide M. Ext. 1 and the same has been identified by PW 4. 17. Learned Amicus Curiae has drawn our attention to some contradictions in the evidence of PW 4 and submitted that he had improved his story during the trial and consequently he is unreliable. With rapt attention we have gone through the purported contradictions and have found that there are minor variations and contradictions in his evidence which do not have any bearing on the outcome of the prosecution case. PW 4 also claims to have seen the stab injuries on the chest of his sister. Although there are some minor variations and contradictions in the evidence which has been brought to my notice but such type of minor variations and contradictions always occur in criminal cases and this minor contradictions are hallmark of his testimony. He never claimed that he had seen the accused stabbing his sister he only deposed that when he peeped inside the room accused came out with a dagger in his hand and chased them. 18. Prosecution witness PW 2, Nipon Kachari, PW 3 Hari Charan Kachari, PW 5 BIreswar Hajowari and PW 6 Miss. Manobi Hajowari are all post occurrence witnesses and they arrived at the house of the accused appellant only after hearing that accused appellant had stabbed her with a dagger they saw the dead body lying on the floor and they also noticed injuries on the person of the accused appellant. Although PW 2 put his signature in the seizure list Exbt. 3 but he could not recognise the Khukri and he admitted that he would not be able to recognise the same, however, he claims to have seen the dead body of the wife of the accused appellant in a pool of blood and in his presence the Khukri was seized by police from the place of occurrence. He also saw the accused lying on the ground. PW 3, also claims to have seen the bleeding injury in the dead body and he met the accused near the gate of the house and at that time he was armed with a Khukri. He also saw the accused lying on the ground. PW 3, also claims to have seen the bleeding injury in the dead body and he met the accused near the gate of the house and at that time he was armed with a Khukri. His evidence is that the accused appellant came with the Khukri and went inside the bedroom and lied down on the bed and after about 15/20 minutes when he entered into the room he saw the accused was lying on the bed after stabbing himself. He also put his signature in Ext. 3 seizure list through which the dagger was seized and he identified the Khukri when it was shown to him during trial. PW 5 arrived in the house of the accused appellant after the occurrence and he saw the dead body of Mira inside the house and he noticed the injury on her chest near the breast and also saw the accused in the courtyard in an unconscious state. He put his signature in the inquest Ext. 2 which was prepared in his presence. Similarly PW 6 also arrived at the spot after the occurrence and she saw police bringing out the dead body of Mira from inside the house. 19. Learned Amicus Curaie strenuously submitted that for mere seizure of the Khukri by police it cannot be held with certainty that was the Khukri used for committing the crime more particularly, when the witnesses to the seizure admitted that such type of Khukris are available in the marker. Learned Addl. PP. per contra submitted that the Khukri was seized by police from the place of occurrence and it was lying near the accused. The I.O. also confirmed that the Khukri was seized by him from the place of occurrence and no suggestion was even put to him to show that it was not seized by him from the place of occurrence. Police arrived soon after the incident and found the Khukri lying near the accused and it was seized and seizure has been duly proved. There is no doubt that the Khukri was the weapon of offence used to commit the crime by the accused appellant. 20. There is no dispute regarding the death of the deceased due to injuries sustained by her on her chest. Post mortem on the dead body was conducted by PW 7 Dr. There is no doubt that the Khukri was the weapon of offence used to commit the crime by the accused appellant. 20. There is no dispute regarding the death of the deceased due to injuries sustained by her on her chest. Post mortem on the dead body was conducted by PW 7 Dr. Arup Ghosh in the Goalpara Civil Hospital on 19.07.2013. On examination he found the penetrating injury (left) upper chest wall 5 X 4 X 5 cm in size. There was also fracture of the 4th rib apart from the penetrating injury and laceration was seen on the mid zone of the left lung with haematoma 2 x 2 cm. In the Pericardium was also haematoma was seen and laceration was seen on the mid part of the heart of the size 2 x 1.5 cm with haematoma formation. The doctor opined that cause of death was due to hemorrhage and shock which was ante mortem in nature. Although he has not mentioned the type of weapon used but in cross examination he admitted that penetrating injury is caused by sharp weapon. 21. From the very nature of injuries sustained by the deceased there is no room for doubt that penetrating injury on the left upper part of the chest piercing the heart was the cause of death. It is evident that the injury was grievous in nature caused by sharp weapon. The weapon should have been produced before the doctor to ascertain whether it could have been caused by that weapon but that was not done but on this ground alone entire prosecution case cannot be thrown overboard when there is evidence that the injury was caused on the chest of the deceased with sharp weapon. 22. On a careful reading of the impugned judgment of the learned Sessions Judge we have found that the learned Judge based his conviction on the basis of the following circumstances:- (1) on the date of the particular incident the accused was inside the house and that has been established from the evidence of PW 1 to PW 6, (2) the accused suffered Khukri injuries and failed to explain as to how he sustained such injury (3) the recovery of the Khukri from the P.O. by police soon after the occurrence. 23. 23. The defence tried to create some doubt regarding the presence of PW 1 and PW 4 in the house of the accused appellant on the date of occurrence. On a careful analysis of the evidence on record we have found no reason to doubt their presence in the house of the accused appellant at the time of occurrence, the consistent version of these witnesses is that after taking meal in the date time while they were gossipping and chewing Betel Nut in the veranda of the house of accused appellant, the accused called his wife by name and suddenly they heard a shriek coming from inside the room. When they tried to sneak inside the room and arrived near the curtain the accused appellant armed with a Khukri chased them and they ran away for their lives. Evidence further reveals that the accused appellant suddenly changed his mind and came back towards his house. After arrival of police only they came to the house of the accused appellant and saw their sister inside the room lying on the floor. Going through their evidence I find no reason to disbelieve them. Moreover, their presence in the house of the accused appellant at the relevant time has been fortified by the evidence of PW 3 who met PW 1 on the village road and came to know from him that the accused had stabbed his wife. PW 3 immediately came to the house of the accused appellant and near the gate he met the accused appellant holding the Khukri in his hand. PW 3 further depose that the accused appellant retreated back to his room and lied on his bed PW 3 came out of the house and after about 15/20 minutes he returned to the house of the accused appellant and by that time a large gathering was there and they informed him that the accused had also committed suicide by stabbing himself. Then he again entered into the room the accused and saw the accused lying in his bed in an injured condition he also saw the dead body of the wife of the accused appellant lying inside the room in a pool of blood. Then he again entered into the room the accused and saw the accused lying in his bed in an injured condition he also saw the dead body of the wife of the accused appellant lying inside the room in a pool of blood. From a conjoint reading of the evidence of PW 1, PW 3 and PW 4 we do not have any doubt regarding their presence in the house of the accused appellant at the time of occurrence. In cross examination defence could not elicit anything to dislodge their evidence and they have no reason whatsoever to falsely implicate the accused appellant in this case. 24. No one had seen the accused appellant stabbing his wife but from the evidence of PW 1 and PW 4 it is established that the accused appellant called his wife from his room and as soon as she entered into the room, PW 1 and PW 4 had heard a shriek and there was silence for a few moments. When they tried to peep inside the room to ascertain what had happened the accused appellant armed with Khukri chased them. The accused appellant was seen by PW 3 near the gate of his house with a Khukri in his hand. Further it stands established that the accused also suffered injuries on his abdomen, it was sought to be established that at first the deceased attack the accused appellant but defence miserably fails to establish the plea. Defence could not explain how she sustained injuries on her upper chest, during trial no question was put to the witnesses including the M.O. that the injuries on the deceased was self inflicted. 25. Learned trial Judge found the case of the prosecution proved to the hilt on the basis of the circumstantial evidence established in the case beyond any shadow of doubt. Consequently, it convicted and sentenced him by the impugned judgment and order. On a critical analysis of the entire evidence on record we have found that the prosecution have established the chain of circumstances which links the accused appellant with the crime. It has been established that it was none other than accused appellant who has caused the death of his wife by stabbing her with a Khukri and he also tried to end his life by stabbing himself. It has been established that it was none other than accused appellant who has caused the death of his wife by stabbing her with a Khukri and he also tried to end his life by stabbing himself. The cumulative effect of the circumstances established in the case negate the innocence of the accused and the circumstances established unerringly towards the guilt of the accused. 26. Consequently, we are of the firm view that learned Sessions Judge, Goalpara has rightly convicted the accused appellant u/s 302 IPC which calls for no interference in this appeal. We have found no infirmity in the judgment of the learned Trial Judge. Accordingly, this judgment stands affirmed. This appeal is dismissed. 27. Send down the LCR along with a copy of this judgment for information and necessary action. 28. We deeply appreciate the assistance rendered by Mr. R.K. Dutta, learned Amicus Curiae in disposing the present appeal. We, therefore, direct the State to pay him an amount of Rs. 7,500/- (Rupees Seven Thousand Five Hundred) as being his professional fee and same needs to be paid within a period of 3 (three) months from the date of receipt of a certified copy of this judgment.