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Gauhati High Court · body

2016 DIGILAW 421 (GAU)

Ashim Kalita v. State of Assam

2016-05-16

A.K.GOSWAMI, L.S.JAMIR

body2016
JUDGMENT : Goswami, J. Heard Mr. B. Deka, learned counsel for the appellant. Also heard Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 2. This appeal is preferred against the judgment and order dated 17.10.2011 passed by the learned Additional Sessions Judge, Kamrup, Guwahati in Sessions Case No. 390(K)/2007 convicting the appellant under Section 302 IPC and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs. 1,000/-. 3. The appellant is accused of committing murder of Hemanta Patowary, who is a co-villager of the appellant. The date of occurrence is 8.00 P.M. of 2.12.2006 and the ejahar (Ext. 1) was lodged on that very day itself at 10 P.M. by PW 1, Niranjan Patowary, who is the brother of the deceased. The scribe of the Ejahar (Ext. 1) was PW 5 Prabhat Kalita. 4. After investigation was completed, charge sheet was submitted against the appellant under Section 302 IPC. 5. The learned Magistrate committed the case to the Court of learned Sessions Judge, the case being exclusively triable by the Court of Sessions. Charge was framed under Section 302 IPC. The charge being read over and explained, the accused pleaded not guilty and claimed to be tried. 6. During trial, prosecution examined 12 witnesses. Apart from the informant PW 1 and the scribe, PW 5, 10 other witnesses were examined. Defence plea was that of denial. 7. PW 4 is the doctor who conducted post-mortem examination. PW 8 is the Magistrate who recorded the Section 164 Cr.P.C. statement of PW 2, PW 3 and PW 6, which were exhibited as Exts. 3, 4 and 7, respectively. PW 11 is the Police official who conducted inquest. PW 12 is the Investigating officer of the case. PW 7 and PW 9 are witnesses of the seizure list (Ext. 8) in relation to a ‘dao’ exhibited as Material Ext. 1. PW 6 is the cousin brother of the deceased who had taken the injured to the hospital. PW 2, PW 3 and PW 10, according to prosecution case, were together with the deceased at the time of the occurrence. 8. The learned trial court convicted the accused appellant primarily basing on the evidence of PW 2, PW 3 and PW 10. The learned trial court also came to the conclusion that the accused had caused the death of Hemanta by means of a ‘dao’, Material Ext. 1. 9. 8. The learned trial court convicted the accused appellant primarily basing on the evidence of PW 2, PW 3 and PW 10. The learned trial court also came to the conclusion that the accused had caused the death of Hemanta by means of a ‘dao’, Material Ext. 1. 9. Mr. Deka has submitted that while the evidence on record discloses that PW 2, PW 3 and PW 10 were together at the time of occurrence, PW 10 did not support the prosecution case as he, in categorical terms, had stated that he had not witnessed the occurrence and he had also categorically stated that there was no electricity and the area was under darkness. Though PW 2 and PW 3 are purported witnesses to the occurrence, viewed in the context of the evidence of PW 10, evidence of PW 2 and PW 3 are not reliable and cannot be acted upon for the purpose of conviction of the appellant, Mr. Deka submits. Furthermore, there is contradiction between the evidence of PW 2 and PW 3, the alleged eye-witnesses and therefore, it will be unsafe to rely upon their testimony, he submits. He further submits that eye-witnesses’ account of the incident is also at variance with the medical evidence demonstrated by the post-mortem report exhibited by PW 4 as Ext. 5 where three injuries were noticed in contradiction to two blows given on the deceased as deposed by PW 2 and PW 3. Mr. Deka has submitted that after the occurrence, hue and cry being raised, a large number of people assembled and PW 6, in his deposition, did not indicate that he was aware of the identity of the assailant notwithstanding the fact that Mukul Kalita, PW 2, accompanied him in the car to take the injured to the hospital. The contention advanced is that identity of the assailant was not known and subsequently, the appellant was falsely implicated. Making a reference to the evidence of PW 7 and PW 9, he submits that seizure is not proved and therefore, it cannot be construed that the deceased was killed with material Ext. 1 ‘dao’. Even if there is some suspicion, suspicion cannot take the place of proof and in the instant case the prosecution had failed to prove the guilt of the accused beyond reasonable doubt and therefore, the appellant is entitled to acquittal, he contends. 10. Mr. 1 ‘dao’. Even if there is some suspicion, suspicion cannot take the place of proof and in the instant case the prosecution had failed to prove the guilt of the accused beyond reasonable doubt and therefore, the appellant is entitled to acquittal, he contends. 10. Mr. Mazumdar, on the other hand, submits that prosecution had proved the case against the appellant beyond reasonable doubt and therefore, no interference is called for with the impugned conviction and sentence. However, the learned Public Prosecutor submits that going by the evidence of PW 7 and PW 9 it is doubtful whether they can be construed to be seizure witnesses. He submits that even if this Court takes a view that the seizure was not in accordance with law, then also the same will not have any material effect on the case of the prosecution as the evidence of PW 2 and PW 3 have not been impeached in any manner. Absence of electricity, he contends, does not mean that it was pitch dark making it impossible for anyone to identify even a known person. 11. We have considered the submissions of the learned counsel for the parties and also perused the materials on record. 12. We will first take into consideration the evidence of PW 7 and PW 9 as well as the Investigating Officer with regard to the seizure of ‘dao’. 13. PW 7 stated in his evidence that police showed him a ‘dao’ stated to be used by the assailant and accordingly, police had obtained his signature. PW 9 in his evidence had stated that a ‘dao’ was recovered from the appellant’s house but he did not know who produced it. Evidence of PW 7 makes it patently clear that he was not present at the time when seizure was effected. PW 9 also did not say that he was present at the time of seizure of the ‘dao’. PW 12 had initially stated that the appellant had thrown the ‘dao’ in a marshy land but subsequently he produced a ‘dao’ from his own residence. Therefore, we are of the opinion that Mr. Deka as well as Mr. Mazumdar are right in their submission that not much reliance can be placed on the seizure of ‘dao’, which is, in any way, a common household implement. 14. PW 1 did not have personal knowledge of the occurrence. Therefore, we are of the opinion that Mr. Deka as well as Mr. Mazumdar are right in their submission that not much reliance can be placed on the seizure of ‘dao’, which is, in any way, a common household implement. 14. PW 1 did not have personal knowledge of the occurrence. Reference is made in the ejahar, Ext. 1, that at the time of the occurrence PW 2 and PW 3 were present along with the deceased and that the elder brother of the accused, Niren Kalita, PW 6 had taken the deceased to hospital. 15. PW 4 found the following injuries on the person of the deceased: “Injuries: No.1: Sharp cut injury of neck of size 9 cm x 4 cm vertebrae deep present on left side of neck, placed transversely, situated 2 cm left from midline and posterior and is 6 cm above the 7th cervical vertebrae. Margins are smooth, well defined and adherent blood clot present. No. 2: Sharp cut injury of neck and face of size 12 cm x 4 cm x vertebrae deep. Placed transversely, anterior and situated 4 cm left and below from lateral canthus of left eye and posterior and merge with injury No. 1. Margins are smooth and well defined, adherent blood clots present. No.3: Sharp cut injury of scalp of size 8 cm x 2 cm x brain deep present over the vault of skull, placed obliquely. Margins are smooth and well defined. Adherent bloods clots present.” 16. PW 4 had deposed that all the injuries suffered by the deceased are sufficient to cause death in ordinary course of nature and that material Ext. 1, ‘dao’ could cause the injuries of the kind suffered by the deceased. Even if it is held that the material Ext. 1 was not the ‘dao’ used in the offence, it is clear that a ‘dao’ could cause the kind of injuries sustained by the deceased. 17. PW 2 had stated that around 8.00/8.30 P.M., he, the deceased, PW 3 and PW 10 were sitting on the bench in front of the shop of Achyut Kalita, whose shop was closed, according to PW 10. PW 2 had stated that the appellant came from behind and all of a sudden inflicted two blows on the head and neck of the deceased with a ‘dao’ and immediately Hemanta fell down. He tried to help him get up. PW 2 had stated that the appellant came from behind and all of a sudden inflicted two blows on the head and neck of the deceased with a ‘dao’ and immediately Hemanta fell down. He tried to help him get up. PW 3 and PW 10 attempted to apprehend the appellant when he slipped away. They raised hue and cry. He also stated that he had gone to the hospital along with PW 6 and was a signatory in the inquest report Ext. 2. In his cross-examination he had also pointed out that he had not noticed the appellant approaching them and that there was no light in the place of occurrence and it was also not a moon-lit night. 18. PW 3 deposed that he, deceased, PW 3 and PW 10 were sitting together on a bench and they were talking about a cricket match in the village. At that moment, appellant came from backside and hacked the deceased on the head and neck as a result of which the deceased fell down. He chased the appellant shouting “what have you done, what have you done” and the appellant eluded him by going inside his house and ran away. He came to the injured who was then taken to one Dhiren Patowary’s house and then he felt dizzy and lost consciousness. 19. PW 10 deposed that PW 2, PW 3, he and the deceased were talking about cricket sitting in front of the grocery shop of Achyut Kalita. He heard a sound and saw Hemanta Patowary falling down and one person running away. He stated in his cross-examination that there was no electricity and the shop of Achyut Kalita was closed. He also stated that when Hemanta fell down he made a cry and became senseless and only next morning he could learn that the assailant was the appellant. It was stated by him that Jugal Kalita, PW 3, had also became senseless. 20. PW 6 deposed that he had taken the injured from near the house of Dhiren Patowary to hospital in his Maruti Van and along with others, PW 2 was with him. He is also a signatory in the inquest report, Ext. 2. 21. Though in the ejahar, Ext. 20. PW 6 deposed that he had taken the injured from near the house of Dhiren Patowary to hospital in his Maruti Van and along with others, PW 2 was with him. He is also a signatory in the inquest report, Ext. 2. 21. Though in the ejahar, Ext. 1, there is no reference to PW 10, evidence of PW 2 and PW 3 and PW 10 corroborated each other that they were present along with the deceased. PW 10 did not know about who the assailant was on the night of the occurrence and he came to learn about the same on the next day. He was not able to identify the assailant possibly because he had lost his consciousness when Hemanta fell down. Therefore, PW 10 would not be able to depose about the steps taken by others consequent upon the deceased falling down on the ground. PW 2 had, however, stated that PW 10 had also joined the chase. That by itself will not make the evidence of PW 2 suspect. Further, PW 3 made a chase to apprehend the appellant. Confronted with the enormity of the crime coupled with the fact that the deceased was his friend, made him lose his consciousness. The categorical evidence of PW 3 that the appellant had struck blows had not been impeached. There was no suggestion that he could not have identified the appellant. There was no suggestion that he never chased the appellant to apprehend him. PW 2 was also not suggested that because of darkness he could not have identified the assailant. 22. There may be no electric light but that does not lead to an inference that because of the same it was not possible to identify any person. PW 3 in his evidence had stated that after dinner, seeing his friends PW 2, PW 10 and the deceased sitting on the bench, he had also gone there and joined them. If the place was so dark, PW 3 would not have seen his friends. The assailant struck at the most vital parts with precision picking up his prey when all four were sitting together. In the facts and circumstances of the case, we are of the opinion that in such close proximity, in any view of the matter, it would not have been difficult for a person to identify a known person. 23. The assailant struck at the most vital parts with precision picking up his prey when all four were sitting together. In the facts and circumstances of the case, we are of the opinion that in such close proximity, in any view of the matter, it would not have been difficult for a person to identify a known person. 23. As we have noticed earlier, PW 4 had deposed that a ‘dao’ could have caused such injuries as sustained by the deceased. The evidence of PW 2 is that the assailant had used a ‘dao’. PW 2 had stated that the assailant had given two blows. We are unable to accept the contention of the learned counsel for the appellant that two blows could not have resulted in three injuries and therefore, there is a contradiction with medical evidence. 24. Injury Nos. 1 and 2 are more or less in the same region and it is possible that two blows had resulted in three injuries. Even if there was a third blow, omission to refer to such third blow, would not in any way impeach the testimony of PW 2 and PW 3. Both PW 2 and PW 3 stated that the assailant inflicted blows in the neck and head and medical evidence also confirms that the injuries were inflicted in neck and head region. 25. In view of the above discussion, we find no merit in this appeal and accordingly, the same is dismissed. 26. Registry will send back the records.