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2016 DIGILAW 654 (GAU)

Lakhi Mal v. State of Assam

2016-07-19

AJIT SINGH, SUMAN SHYAM

body2016
JUDGMENT AND ORDER : Suman Shyam, J. 1. The sole appellant Lakhi Mal has been convicted under Section 302 of the Indian Penal Code (IPC) for committing murder of Milon Mal and sentenced to rigorous imprisonment (RI) for life and also to pay a fine of Rs. 5,000/-. 2. The prosecution case, in brief, is that on 27-09-2012 at about 09:30 p.m. when the deceased Milon Mal who was gossiping in his house with the family members, the appellant Lakhi Mal came to their house and after talking for sometime asked Milon Mal to accompany him to his (Lakhi Mal's) house. Accordingly, both the appellant and Milon Mal went away. After about 10/15 minutes the complainant Mahadev Mal heard shouting by Lakhi Mal and went to the house of the appellant to find that the deceased Milon Mal was lying dead with injury on his person. On 28-09-2012 an ejahar was lodged by Sri Mahadev Mal, i.e. the brother of the deceased Milon Mal, informing the Officer-in-Charge of the Dholai Police Station about the incident. On the basis of the ejahar, Dholai P.S. Case No. 367/2012 was registered under Sections 326/302 of the Indian Penal Code and investigation was conducted by the Investigating Officer Sri Bimal Saikia, where-after charge-sheet was submitted against the appellant. Eventually, on completion of the trial the appellant was convicted under Section 302 IPC for murder of Milon Mal by the impugned judgment and order dated 29-03-2014 passed by the Sessions Judge, Cachar in Sessions Case No. 150/2014. 3. Post Mortem Examination was conducted on the dead body of deceased Milon Mal on 28-09-2012 at the Silchar Medical College Hospital (SMCH), Silchar. As per the Post Mortem Report (Exhibit-3) the following injuries were noticed: Injuries: (1) Stab injury (punctured injury) of size 8 x 2 cm. with sharp margins of ends at the front of chest middle part 2 cm. left of midline, obliquely placed with depth upto thorasic cavity. Underlying sternum punctured through and through exposing anterior medastinum. (2) Pleurae - punctured under injury No. 1. Approximate 750 ml liquid blood in thorasic cavity. (3) Left lung - upper lobe punctured and collapsed. (4) Pericardium - punctured anteriorly. (5) Vessels - arch of aorta punctured. In the cranium - All parts found healthy but pale. Abdominal organs found healthy but pale. Injury Nos. 1, 2, 3, 4 and 5 were caused by a single thrust. Approximate 750 ml liquid blood in thorasic cavity. (3) Left lung - upper lobe punctured and collapsed. (4) Pericardium - punctured anteriorly. (5) Vessels - arch of aorta punctured. In the cranium - All parts found healthy but pale. Abdominal organs found healthy but pale. Injury Nos. 1, 2, 3, 4 and 5 were caused by a single thrust. 4. Dr. Gunajit Das, who had conducted the Post Mortem examination on the body of victim was examined as PW-5 and he has opined that the death was caused due to haemorrhagic shock following the stab injury sustained which was ante-mortem and had been inflicted by double edged sharp pointed object/ weapon and was homicidal in nature. During his cross-examination Dr. Gunajit Das (PW-5) has clarified that the weapon could be a dagger or a knife provided both the sides are sharp. 5. There is no eye witness to the incident and the prosecution case is based on circumstantial evidence. Sri Mahadev Mal (PW-1), the complainant in this case is the brother of the deceased Milon Mal. PW-1 had deposed before the court that on the date of occurrence, the appellant Lakhi Mal had come to their house and after talking for sometime had asked deceased Milon Mal to go to the house of the appellant. Mahadev Mal (PW-1) had further deposed that after a little while he heard Lakhi Mal shouting and on hearing such shouting he came to the house of Lakhi Mal and found Milon Mal lying dead with injury in his person. PW-1 had further stated that he could not apprehend the accused as there was a 'dao' (machete) in his hand. 6. PW-2 Sri Mantu Mal had corroborated the version of the PW-1 and confirmed that the body of Milon Mal was found in the house of Lakhi Mal at about 09:00 p.m. on the date of the incident with injury on the chest and that the appellant had fled the scene after killing the deceased with a 'dao'. Ms. 6. PW-2 Sri Mantu Mal had corroborated the version of the PW-1 and confirmed that the body of Milon Mal was found in the house of Lakhi Mal at about 09:00 p.m. on the date of the incident with injury on the chest and that the appellant had fled the scene after killing the deceased with a 'dao'. Ms. Bina Mal (PW-3) and Sri Durga Charan Mal (PW-4) had further corroborated the version given by the PWs-1 and 2 by confirming that they also saw the deceased with cut injuries lying dead in the courtyard of the accused Lakhi Mal on the date of occurrence at about 09:30 p.m. PW-3 had categorically deposed that when she had rushed to the house of the appellant she found him with a 'dao' in his hand and he tried to assault the witness also with the dao but somehow she managed to escape from the scene. All the above witnesses have confirmed that the appellant had fled the place of occurrence after the incident. The testimony of the PWs-1 to 4 could not be shaken during their cross-examination. 7. Sri Bimal Saikia (PW-7) is the I/O who had conducted the investigation in the initial stage. The PW-7 has deposed that he had found the dead-body of Milon Mal and had made arrangements for conducting the inquest. The PW-7 had also recorded the statements of the witnesses. Sri Saikia had further deposed that he had made attempts to apprehend the appellant and had raided his house but the appellant was found absent. 8. Sri Sabuj Ranjan Paul (PW-6), who had taken over the investigation of the case as Investigating Officer from his predecessor Bimal Saikia, had stated in his evidence that the appellant Lakhi Mal was absconding after the incident but he later on surrendered before the court. PW-6 had also stated during his cross-examination that when he visited the house of the accused he found that same was demolished. 9. From a careful examination of the evidence adduced by the prosecution side we find that the prosecution side has been able to establish the fact that the deceased Milon Mal was found lying dead in the courtyard of the appellant on the date of occurrence with fatal injuries on his body. 9. From a careful examination of the evidence adduced by the prosecution side we find that the prosecution side has been able to establish the fact that the deceased Milon Mal was found lying dead in the courtyard of the appellant on the date of occurrence with fatal injuries on his body. It had also been established on the basis of evidence on record that a little while before the incident the appellant had taken the deceased Milon Mal to his house but after the incident, the appellant was not found at his house. 10. During the examination of the appellant as an accused under Section 313 of the Code of Criminal Procedure, he has admitted his presence at the place of occurrence but had tried to plead innocence by stating that it was the complainant Mahadev Mal (PW-1) who had tried to give him a blow with a 'bhujali' which was in his (Mahadev Mal) hand. But the appellant managed to avoid the blow as a result of which Mahadev's blow hit Milon Mal and he died. The said plea of the appellant is not acceptable firstly because no such suggestion was made to Mahadev (PW-1) during his cross examination by the defence side that the deceased had died on receiving an accidental blow from him. Secondly, the nature of injuries recorded in the Post Mortem Report also shows that the victim had received penetrative stab injury in his chest obliquely placed with depth upto the thoracic cavity. Such deep and penetrating injury can happen only if a blow is struck with a sharp weapon with intention to cause such injury and the same, in our view, could not have been caused by an accidental blow as suggested had been by the appellant. Therefore, the version of the appellant does not at all inspire the confidence of this Court. Had the deceased died due to a blow from the PW-1 then instead of fleeing the place of occurrence the appellant himself would have lodged the ejahar with the police reporting the said incident, more so, when the occurrence took place at his own house. However, the materials on record goes to show that instead of reporting the matter to the police the appellant had been absconding for quite some time after the incident. However, the materials on record goes to show that instead of reporting the matter to the police the appellant had been absconding for quite some time after the incident. The said conduct of the appellant, besides being wholly inconsistent with the version put forward by him during his examination by the court, also strongly suggests his involvement in the commission of the crime. 11. During the course of argument Mr. Alam, learned amicus curiae appearing on behalf of the appellant has made an attempt to punch a hole into the prosecution case by drawing the attention of this Court to the contradictory evidence available on record as regards the weapon used in killing the deceased. Mr. Alam submits that while in one hand the prosecution witnesses have consistently referred to the weapon as a 'dao' yet, the doctor conducting the Post Mortem (PW-5) has categorically opined that the weapon used is a double edged sharp weapon which can be a dagger or a knife. The learned counsel submits that a 'dao' (machete) has sharp edge only on one side and the other side is blunt. Since there was considerable discrepancy as regards the description of the weapon used in committing the crime, hence, according to the learned amicus curiae, the same would raise sufficient doubt on the veracity of the prosecution case and the benefit of the same must go in favour of the appellant. In support of his aforesaid argument, Mr. Alam had relied upon the following cases:- (i) Solanki Chimabhai Ukabhai vs. State of Gujarat, (1983) 2 SCC 174 (ii) State of U.P. vs. Krishna Gopal, (1988) 4 SCC 302 (iii) Nasir Sikander Shaikh vs. State of Maharashtra, (2005) 10 SCC 585 12. We have given our anxious consideration to the submission made by the learned amicus curiae. It may be noted herein that a 'dao' is a metallic weapon made of iron having a wooden handle with sharp edge only on one side and is commonly found in almost every household in this part of the country. A 'dagger' is also similar weapon with a wooden handle but has sharp edges on both the sides. It may be noted herein that a 'dao' is a metallic weapon made of iron having a wooden handle with sharp edge only on one side and is commonly found in almost every household in this part of the country. A 'dagger' is also similar weapon with a wooden handle but has sharp edges on both the sides. Since a 'dao' is a weapon commonly available in the house-holds in Assam, hence, having regard to the nature of use and utility of both the varieties, it is quite possible that in common parlance a dagger is also casually referred to as a 'dao'. 13. In the present case the PW-1 Mahadev Mal had deposed that after the incident, the appellant was seen with the 'dao' in his hand. The dao has, however, not been seized and that is apparently because the appellant had taken the same with him while leaving the place of occurrence. Further, the appellant has also admitted his presence at the place of occurrence at the time of the incident. In his examination under Section 313 Cr.P.C, the appellant did not state that Mahadev Mal had brought any weapon with him. After scanning the evidence on record, we find that there is strong circumstantial evidence to link the appellant with the murder of Milon Mal beyond any reasonable doubt. Having regard to the weight of the evidence available on record, the prosecution case cannot be disbelieved merely on account of the fact that there is some discrepancy in the description of the weapon of crime. Therefore, the decisions cited by the learned counsel for the appellant would be of no assistance to him in the facts of the present case. 14. For the reasons stated above, we are of the considered opinion that the prosecution has succeeded in establishing the guilt of the appellant by adducing cogent evidence on record. Therefore, we do not find any merit in this appeal and the same is accordingly dismissed.