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2016 DIGILAW 680 (GAU)

Sabin Roy v. State of Assam

2016-07-26

AJIT SINGH, SUMAN SHYAM

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JUDGMENT AND ORDER : Suman Shyam, J. The sole appellant Sabin Roy has been convicted under Section 302 of the Indian Penal Code for committing murder of Jaleshwar Roy and sentenced to undergo Life Imprisonment and also file of Rs. 10,000/- with default stipulation; he has been convicted for committing an offence under section 326 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for 10 (Ten) years and to pay a fine of Rs. 5000/- with default stipulation. The appellant has also been convicted for committing an offence under section 341 of the Indian Penal Code and sentenced to Simple Imprisonment for 1 (one) month. All the jail sentences are to run concurrently. 2. The prosecution case, in brief, is that on 06/04/2013 at about 9 p.m., when the informant Chandrakanta Roy was sitting in the courtyard of his paternal uncle along with his cousin Swadeshi Roy and discussing about some family matters, the appellant had come in a bike along with one Narayan and started an altercation with the informant. The appellant then took out a dagger from his waist and attacked the informant but when his younger brother Babul Roy tried to resist the appellant, he had stabbed Babul in his abdomen with the dagger and thereafter stabbed the other brother Jaleswar Roy on his chest, causing grievous injuries to both the persons. Later on, Jaleshwar Roy died in the hospital after two days of the incident. 3. Chandrakanta Roy had lodged an ejahar with the Jogigopa Police station in the district of South Salmara, Abhayapuri, reporting the said incident. On the basis of the ejahar, Jogigopa P.S. case No. 86/2013 was registered under section 341, 326 of the Indian Penal Code. Later on, after the death of the victim Jaleshwar Roy, section 302 of the Indian Penal Code was also added by the Police. Thereafter, an investigation was carried out and on completion of the investigation, charge sheet was submitted against the appellant Sabin Roy. The appellant having pleaded not guilty, the charges framed against him were put to trial. Eventually, the appellant was convicted for having committed offences under Section 341, 326, 302 of IPC and the aforementioned sentences were imposed upon him. 4. The prosecution case was based on the testimony of as many as 4 (four) eye witnesses which included one injured witness. Eventually, the appellant was convicted for having committed offences under Section 341, 326, 302 of IPC and the aforementioned sentences were imposed upon him. 4. The prosecution case was based on the testimony of as many as 4 (four) eye witnesses which included one injured witness. The informant Chandrakanta Roy (PW-1) had deposed that on the date of the incident at around 9 p.m. while he was sitting in the house of his "Jetha" (father's elder brother), the appellant Sabin Roy and another boy Narayan come to that place on a motor cycle. Thereafter, Sabin started an altercation with the informant and later on he took out a dagger from his waist and tried to kill the informant. At that stage, the younger brother of the informant, viz, Babul Roy had tried to apprehend the appellant when the appellant had stabbed him (Babul) in his abdomen with the dagger as a result of which the intestine of Babul Roy had come out. Chandrakanta Roy had further deposed that when his younger brother Jaleshwar tried to save Babul, the appellant Sabin had also stabbed him in his chest with a dagger. Later on injured Babul and Jaleshwar were taken to the Lower Assam Hospital, where Jaleshwar died after two days of the incident. 5. Aradhona Roy (PW-2), wife of Swadeshi Roy, is another eye witness to the incident which took place at her house. Aradhona had also deposed before the Court that on the date of the incident when Chandrakanta Roy, Babul Roy, Jaleshwear Roy and Khudu Roy were discussing a matter relating to the delivery of Chandra Kanta's younger brother's wife, than the appellant come to their house along with a boy Narayan on a motor cycle and thereafter started an altercation with Chandrakanta. When Babul come forward to save Chandra Kanta, the appellant had stabbed Babul in his abdomen with a dagger and when Jaleshwar come forward to save Babul, the appellant had stabbed him in his chest with the dagger and fled the scene. The said witness had also testified that Jaleshwar died in a lower Assam Hospital due to the injuries sustained by him at the hands of the appellant. 6. PW-3 Khudu Roy is the cousin of the informant and uncle of the appellant. PW-3 is also an eye witness to the incident and had corroborated the version given by the eye witnesses PW-1 and PW-2. 6. PW-3 Khudu Roy is the cousin of the informant and uncle of the appellant. PW-3 is also an eye witness to the incident and had corroborated the version given by the eye witnesses PW-1 and PW-2. Khudu Roy (PW-3) had also categorically deposed that on the date of the incident, the appellant come to the place of occurrence and started an altercation with Chandrakanta Roy .When the appellant tried to attack Chandrakanta with a dagger, Babul tried to take Chandrakanta aside but the appellant had stabbed Babul in his abdomen with a dagger. Later on, when Jaleswar come forward, the appellant had stabbed him also in his chest with the dagger and fled away. Later, Jaleshwar was taken to the hospital but he died after two days. 7. Babul Roy, who was injured on the date of the incident on being stabbed with a dagger by the appellant in his stomach but survived the assault, was examined by the prosecution PW-11. In his testimony, Babul Roy had given a detailed account of the incident, thereby confirming the fact that on the date of the incident at about 9 p.m., the appellant had come to the place where his elder brother Chandrakanta was sitting in the house of Swadeshi Roy. Thereafter, the appellant started an altercation and when Babul tried to come in between, he was stabbed by the appellant in his stomach by a dagger and later on the appellant had also stabbed Jaleshwar in his chest. The witness had deposed that Jaleshwar died due to the injuries sustained in his chest. 8. A Post Mortem Examination was conducted on the dead body of Jaleshwar Roy on 07/03/2013. According to the Post Mortem Report (Ext-4) there was a large incised wound of 20 cm x 2 cm x 6 cm in size extending from left mid clavicular line of chest up to side of the back and the wound was deep enough injuring the underlying pleura and lung tissue on side with consequent haemothorax on side. Dr, Chandita Bora, who had conducted the post mortem examination upon the dead body, was examined as PW-12. Dr. Bora had opined that the type of injury found in the dead body of Jaleshwar Roy was sufficient to cause death. 9. Dr. Dharmeshwar Hazarika, who had treated the injured Babul Roy, was examined as PW-8. As per the testimony of Dr. Dr. Bora had opined that the type of injury found in the dead body of Jaleshwar Roy was sufficient to cause death. 9. Dr. Dharmeshwar Hazarika, who had treated the injured Babul Roy, was examined as PW-8. As per the testimony of Dr. Hazarika, there was penetrating wound in right iliac fossa caused by sharp weapon and the same was grievous in nature. The doctor had further opined that the type of weapon used was sharp weapon. 10. The witnesses PWs-1, 2, 3 and 11 are all related to the deceased as well as the appellant. The aforementioned four eye witnesses have corroborated the version given by each other and have confirmed the fact that the appellant gave a dagger blow on Babul Roy and the deceased Jaleshwar Roy on the date of the incident which had led to the death of Jaleshwar. During cross examination, could be brought out so as to discredit the testimony of the said witnesses. Further, the ocular evidence of these eye-witnesses as regard the nature of injuries inflicted upon Babul and Jaleshwar had also been fully corroborated by the medical evidence. Therefore, we do not find any cogent reason to doubt or disbelieve the creditworthiness of the testimony of the eye-witnesses PW-1, PW-2, PW-3 and PW-11. 11. The incident took place at the house of Swadeshi Roy (PW-10) who is also one of the uncle of the appellant. Swadeshi Roy is not an eye-witness to the incident but he has deposed that on the date of the incident he was sleeping at home. Then Chandrakanta Roy come to his house and after a short while the appellant had also come to his house and a quarrel took place between the appellant and Chandrakanta over some land dispute. Then there was a sudden commotion and he heard the shout "being stabbed with dagger" (twice). When he (PW-10) come out of his house he saw Babul and Jaleshwar Roy lying smeared with blood and he saw that the intestine of Babul had come out. PW-4 Rahim Sutradhar, PW-7 Bijoy Roy and PW-9 Rateswar kalita were all neighbours of Swadeshi Roy, in whose house the incident had occurred. They have deposed that having heard the hue and cry on the date of occurrence, they come and saw Babul and Jaleshwar lying injured in the place of occurrence. PW-4 Rahim Sutradhar, PW-7 Bijoy Roy and PW-9 Rateswar kalita were all neighbours of Swadeshi Roy, in whose house the incident had occurred. They have deposed that having heard the hue and cry on the date of occurrence, they come and saw Babul and Jaleshwar lying injured in the place of occurrence. These witnesses had corroborated the fact that the intestine of Babul Roy had come out and that there was stab injury in the chest of Jaleshwar. 12. Rameswar Deka (PW-13) was the Investigating Officer, who had deposed that on receipt of information about the incident he had arrived at the spot. It was after his arrival that the informant had taken both the injured to the hospital. Rameswar has deposed that the condition of both the accused were critical and he had also accompanied them to the hospital. The PW-13 had further deposed that on 23/04/2013 he had come to know that the appellant had surrendered before the Court of Sub-Divisional Judicial Magistrate, Abhayapuri. On remand by the court he had interrogated the appellant and had come to know from the appellant that the dagger had been thrown by him in the water body Tamranga Beel. Although PW-13 had made an attempt to recover the dagger with the help of fisherman but did not succeed in his attempt. The PW-5 Pabitra Das was a witness to the search incident and he had also corroborated the said testimony of the PW-13. 13. The Defence side had examined two witnesses. During trial although the defence side had taken the plea that the appellant did not go to the place of occurrence on the date of the incident but the said plea could not be established by leading evidence. 14. From the bulk of the evidence available on record, it is thus, evident that the incident occurred on 6/4/2013 at around 9 p.m. in the house of Swadeshi Roy (PW-10) when the appellant had started an altercation with the informant (PW-1) and thereafter, attacked him with a dagger which he was carrying in his waist. When Babul Roy tried to stop him from assaulting his brother Chandrakanta, the appellant had stabbed Babul in his stomach causing grievous injury in his abdomen. When Babul Roy tried to stop him from assaulting his brother Chandrakanta, the appellant had stabbed Babul in his stomach causing grievous injury in his abdomen. Thereafter, the appellant had also stabbed Jaleshwar Roy in his chest with the dagger as a result of which Jaleshwar had also suffered grievous injuries and he died after two days while undergoing treatment in the hospital. We are, therefore, of the view that the prosecution side has been able to prove its case beyond reasonable doubt by leading clear, cogent and creditworthy evidence. 15. Mr. Alam, learned Amicus Curiae appearing on behalf of the appellant fairly submits that in so far as the involvement of the appellant in the incident is concerned, the same has been established by the prosecution beyond reasonable doubt and therefore, he is not arguing for acquittal of the appellant. The learned counsel, however, submits that since the incident was preceded by a quarrel taking place between the appellant and the informant, hence, the present is not a case falling under section 302 of the Indian Penal Code but is one coming under the purview of section 304 Part-II of the Indian Penal Code. Mr. Alam, therefore, submits that having regard to the facts and circumstances of the case, instead of section 302, the appellant deserves to be convicted under section 304 Part-II of the IPC and sentenced to a lesser punishment. 16. We have given our anxious consideration to the submission of the learned Amicus Curiae and have also meticulously gone through the evidence available on record. From the materials on record, we find that the incident had taken place in the house of the Swadeshi Roy (PW-10) who is a relative of the appellant. That apart, the appellant is also related to the informant Chandrakanta. It is not the case of the appellant that he was invited to the house of his uncle for a discussion on any particular matter. The appellant had evidently gone to the house of Swadeshi Roy on his own volition. But notwithstanding the same, the appellant had carried a dagger in his waist. The learned Amicus Curiae could not offer any reasonable explanation as to why the appellant was carrying a deadly weapon like a dagger along with him while visiting the place of his uncle if he did not have any intention of causing murder there. 17. But notwithstanding the same, the appellant had carried a dagger in his waist. The learned Amicus Curiae could not offer any reasonable explanation as to why the appellant was carrying a deadly weapon like a dagger along with him while visiting the place of his uncle if he did not have any intention of causing murder there. 17. After scanning the evidence, we also find that there is no material to suggest that there was any grave and sudden provocation upon the appellant which had prompted him to assault the two persons. As a matter of fact, from the nature of injuries sustained by the deceased Jaleshwar as well as the other victim Babul Roy, it can be safely presumed that the assaults were made with the full knowledge and intention of committing the murder of Jaleshwar. In such view of the matter, we are of the view that the appellant is guilty of committing offences under section 302, 326, 341 of the Indian Penal Code and has been rightly convicted and sentenced by the trial court. 18. For the reasons stated above, we find that there is no merit in this appeal and the same shall accordingly stand dismissed.