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2016 DIGILAW 475 (GAU)

Chakra Ray v. State of Assam

2016-05-26

A.K.GOSWAMI, L.S.JAMIR

body2016
JUDGMENT AND ORDER : A.K. Goswami, J. This appeal is directed against the judgment dated 22.11.2002 passed by the learned Sessions Judge, Dhubri in Sessions Case No. 61/2001 whereby the appellant was convicted and sentenced to suffer imprisonment for life and also to pay a fine of Rs. 2,000/- in default, Rigorous Imprisonment for 1 (one) year. 2. An ejahar dated 14.04.2001 (Ext.-3) was lodged by the informant (PW4) before the Officer In-charge Golokganj Police Station stating that at around 11:00 pm on 13.04.2001, while she and her husband were quarrelling at home over some domestic issues, the accused person armed with a dagger trespassed upon their house and punched her. He then stabbed her husband in the abdomen with a dagger causing him grievous injury before rushing out. It was also stated that at around 08:00 am on the date of filing the ejahar, her husband was taken to the Golokganj hospital where he died on the way. Based on the ejahar, Golokganj P.S. Case No. 47/2001 under Sections 447/354/302 IPC was registered. 3. After completion of the investigation, Charge-Sheet (Ext-6) was filed. As the case was exclusively triable by the Court of Sessions, the case was accordingly committed to the Court of the learned Sessions Judge, Dhubri. 4. Charge was framed under Sections 448/302/352 IPC and on being read over, the accused pleaded not guilty and accordingly trial commenced. During trial, the prosecution examined 14 (fourteen) witnesses. The accused was also examined under Section 313 Cr.PC. After completion of trial, the impugned judgment dated 22.11.2002 was passed by the learned Sessions Judge, Dhubri. 5. Heard Ms. MB Baruah, learned Legal Aid counsel for the appellant. Also heard Mr. K.A. Mazumder, learned Additional Public Prosecutor, Assam. 6. Ms. M.B. Baruah, learned Legal Aid counsel appearing for the appellant submits that apart from the PW4, who is considered to be the eye witness by the prosecution, there were no other witnesses, who had seen the incident on the night of 13.04.2001. It is submitted that a consideration of the evidence of PW4 would clearly indicate that PW4 could not clearly establish the presence of the accused/appellant in the place of occurrence on the night of 13.04.2001. She further submits that one Narayan Roy, who is the brother of the deceased, was not examined and the same is fatal for the prosecution to prove a case against the appellant. She further submits that one Narayan Roy, who is the brother of the deceased, was not examined and the same is fatal for the prosecution to prove a case against the appellant. Therefore, in the absence of any clear evidence that the appellant was present in the place of occurrence, no connection can be drawn that the appellant had committed the alleged offence. Therefore, the prosecution has failed to develop a case beyond reasonable doubt that it was the appellant who had committed the offence upon the deceased. It is also submitted that taking another view of the matter, still then, the case does not fall under Section 302 IPC and therefore the case of the accused should come within exception 4 of Section 300 IPC and that the sentence be altered to Section 304 Part-II. 7. Per contra, Mr. KA Mazumder, learned Additional Public Prosecutor, Assam submits that the evidence of PW4 has not been demolished by the defense. The evidence given by the PW4 would clearly indicate that she was present at the place of occurrence and she saw the appellant committing the offence on her husband by stabbing him in his belly with a dagger. Further, the presence of the appellant at the place of occurrence was also established by the evidence of PW5, who is the mother of the accused/appellant. Though declared as hostile by the prosecution, PW5 clearly indicated that the accused/appellant was at the place of occurrence as the PW5 saw the accused running out from the house of the deceased. He therefore, submits that the prosecution has proved its case beyond any reasonable doubt against the appellant and therefore no interference is required in the conviction and sentence of the appellant. 8. We have considered the submissions forwarded by the learned counsels appearing for the parties at length. 9. PW1 is a seizure witness, who was present at the time of seizure of a dagger in a paddy field belonging to Shyamal Roy located in front of the house of the deceased and identified his signature as Ext. 1(1) in the Seizure List (Ext-1). 10. PW2, PW5, PW7, PW8, PW10 and PW11 were declared hostile witnesses. 11. 9. PW1 is a seizure witness, who was present at the time of seizure of a dagger in a paddy field belonging to Shyamal Roy located in front of the house of the deceased and identified his signature as Ext. 1(1) in the Seizure List (Ext-1). 10. PW2, PW5, PW7, PW8, PW10 and PW11 were declared hostile witnesses. 11. PW3 is also a seizure witness, who stated that the police seized a dagger lying in the field belonging to Shyamal Roy located in front of the house of the deceased and he identified his signature as Ext. A (2) in the seizure list. 12. PW4 is the informant and the wife of the deceased. She has stated that there was an enmity between her husband and the accused prior to their marriage and they had quarrels before and after her marriage with her husband. At the time of the death of her husband, they were facing poverty for want of sufficient food and on the night of the occurrence, they were going out in search of food stuff but at that moment, they saw the accused person at the doorstep of their house and the accused person gave 2 (two) blows on her face and stabbed her husband in his belly with a dagger. She stated that she saw her husband falling down on the ground. Hearing her scream, Narayan Roy, the elder brother of the deceased and the mother and brother of the accused turned up at their house followed by some other persons and at that time the accused fled away from the house. She also stated that later on, the police recovered the weapon of offence, i.e., the dagger from the paddy field of Shyamal Roy. 13. PW6 is the neighbour of the informant (PW4) and he is a reported witness. 14. PW9 lived about half a kilo-meter from the house of the deceased, who had taken the deceased to the police station in a pull-cart and from there the deceased was taken to the hospital. 15. PW12 is the Circle Officer, who conducted the inquest on the dead body of the deceased. 16. PW13 is the Investigating Officer who made the GD entry. He stated that he found one knife at the place of occurrence and the same was seized. 15. PW12 is the Circle Officer, who conducted the inquest on the dead body of the deceased. 16. PW13 is the Investigating Officer who made the GD entry. He stated that he found one knife at the place of occurrence and the same was seized. In cross-examination, he stated that PW4 stated that on 13.04.2001 at about 10:00 pm there was a quarrel between her and her husband on some domestic matters and at that time her neighbour, the accused, came to their courtyard and on seeing him, her husband asked the accused to go back. An altercation took place between them and on seeing them she asked the accused to go back to his house and at which the accused gave a blow on her eyes and stabbed her husband with a dagger on his belly. 17. PW14 is the Senior Medical and Health Officer-1 at Dhubri Civil Hospital, who performed the post-mortem examination on the dead body of the deceased. The prime evidence of PW14 is extracted herein below:- “An average built make body. Rigor mortis on both limbs. Eyes closed. Mouth half opened. A laceraterd wound present in lower abdomen. Intestines are coming from the abdomen. Large intestines is lacerated in middle part. Thorax intact. Cranium, and spinal cord intact. Liver, spleen, kidney and bladder intact. Deceased deformity, fracture, dislocation: Nil Injuries are anti-mortem in nature. Death in my opinion was due to shock and haemmorhage as a result of injury sustained by the deceased. Ext.-7 is the PM report. Ext-7(1) is my signature. Ext-7(2) is the signature of the Joint Director of Health Services.” 18. A consideration of the evidence of PW4 would clearly indicate that she had seen the accused/appellant stabbing her husband in the belly with a dagger. It is also clear in her evidence that the accused fled from her house after committing the offence. Further, the evidence of PW4 would indicate that immediately after the incident, the elder brother of the deceased, Narayan Roy and the mother and brother of the accused turned up at her house followed by some other persons. 19. PW5 was declared hostile by the prosecution. However, in her cross-examination, she has stated that she heard some altercation between her son/accused and the deceased at the house of the deceased and she went to bring her son. 19. PW5 was declared hostile by the prosecution. However, in her cross-examination, she has stated that she heard some altercation between her son/accused and the deceased at the house of the deceased and she went to bring her son. Further, she has stated that just at the time of reaching their house, she saw her son, i.e., the accused/appellant running out from their house. Again, PW13 who is the Investigating Officer of the case, has stated that it was the PW5, who had stated before him that on the night of 13.04.2001, there was a quarrel between the deceased and his wife and she also heard an altercation between the accused and the deceased at his house and she went to bring her son/appellant from there and she saw the accused/appellant running out from their house. 20. From a consideration of the evidence of PW4, PW5 and PW13, we are of the considered opinion that the accused/appellant was present at the place of occurrence on the night of 13.04.2001. It is important to note that though the PW5 has been declared hostile, she has clearly stated that she had seen the accused running out from the house of the deceased, which is supported by the evidence of the PW4 and PW13. Accordingly, there is no doubt to hold that the accused/appellant was at the place of occurrence on the night when the incident took place. 21. The evidence of PW4 would clearly indicate that she saw the accused stabbing her husband by the deceased with a dagger. This piece of evidence has not been demolished by the defense in any manner to allow us of having the slightest doubt on the evidence of PW4. Therefore, we are convinced that it was the accused, who had stabbed the deceased in the belly with a dagger causing his death. 22. Though it is argued by the learned Legal Aid counsel that there is a contradiction with regard to the place of recovery of the weapon of offence inasmuch as, while PW1 and PW3 had stated that the same was recovered from a paddy field belonging to Shyamal Roy, PW13, the Investigating Officer had indicated that the same was recovered from the place of occurrence, we do not find any such contradiction. From the Sketch Map, Ext.-4, it appears that the house of Shyamal Roy is near about the house of the deceased, i.e. Naren Roy. In the Sketch Map, the spot from where the knife was recovered had also been identified. The Seizure List, Ext.-1, shows that a dagger was seized and, therefore, the statement made by the Investigating Officer in his deposition that a knife was found would not make much of a difference. 23. The submission of the learned Legal Aid Counsel has also been considered with regard to the case of the accused coming under Exception 4 of Section 300 IPC. It is important to note that the time of occurrence was between 10:00- 11:00 pm. It was at this hour that the accused had come to the house of the deceased with a pre-mediated mind with an intention to kill the deceased. The manner in which the injury was inflicted and the weapon used would clearly indicate that the case of the accused would not come within the purview of Section 304 IPC. Therefore, we are unable to accept the submission of the learned Legal Aid Counsel. 24. We have also considered the submissions of the learned Legal Aid counsel that one prime witness, namely, Narayan Roy, who is the elder brother of the deceased was not examined and therefore, the same is fatal to the prosecution to prove a case beyond any reasonable doubt against the appellant. We are unable to accept the submission made by the learned Legal Aid counsel, inasmuch as, considering the evidence of PW4 as well as the evidence of the other prosecution witnesses, we consider non examination of the said Narayan Roy would have no impact on the case of the prosecution. 25. In the facts and circumstances of the case, we see no infirmity in the judgment dated 22.11.2002 passed by the learned Sessions Judge in Sessions Case No. 62/2001 and accordingly the appeal is dismissed. No costs. 26. Send down the LCR's forthwith.