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2016 DIGILAW 746 (GAU)

Sarwan Rabidas v. State of Assam

2016-08-09

AJIT SINGH, N.CHAUDHURY

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JUDGMENT AND ORDER (Ajit Singh, C.J.) Appellant Sarwan Rabidas has been convicted under Section 302 of Indian Penal Code and sentenced to rigorous imprisonment for life and fine of Rs.2,000/- with default stipulation. The other two co-accused persons, namely, Suresh Rabidas and Niranjan Rabidas have been acquitted of the charges. 2. The victims of the incident were Naresh Rabidas, aged about 49 years and his son Manoj Rabidas, aged about 20 years. 3. According to the prosecution case, on 2.6.2011 sometime in the morning, a quarrel took place amongst the female family members of victims on one side and of appellant on the other side over fetching of drinking water from well. At that time, the appellant threatened to kill Naresh and Manoj before completion of the day. When the appellant made such a threat, two co-accused persons, namely, Suresh Rabidas and Niranjan Rabidas were also present with him. Later, in the evening, around 7 PM, the appellant assaulted Manoj on the road of Promode Nagar Tea Garden with an axe and ran towards the Factory of the Tea Garden. And there finding Naresh, the appellant inflicted injuries to him also with the same axe. Naresh died on the spot whereas Manoj was carried to Karimganj Civil Hospital for treatment. In the meantime, Rita Rabidas (PW-1), daughter of Naresh, lodged the ejahar at Police Station Nilam Bazar District Karimganj. 4. Before lodging of the ejahar by Rita Rabidas, Pabitra Kumar Das (PW-14), the Officer In-charge of Nilam Bazar Police Station had already received information over telephone from the Garden Manager that one person had been murdered near the Factory and one boy was seriously injured on the road. Pabitra Kumar Das made G.D.Entry No.42 of that information and rushed to the place of occurrence. He made the inquest on the dead body of Naresh and sent the body for post mortem examination. 5. First Information Report of the incident was recorded on 3.6.2011. The appellant also surrendered himself at the Police Station on 3.6.2011 whereafter, he was taken into custody. The appellant then made a discovery statement, pursuant to which, one axe was seized from the bushes of the homestead of Badrul Hoque (PW-11). The seizure memo of axe is exhibit 6. Badrul Hoque (PW-11), Suresh Rabidas (PW-8) and Ratan Rabidas (PW-9) are witnesses to the seizure of axe. 6. The appellant then made a discovery statement, pursuant to which, one axe was seized from the bushes of the homestead of Badrul Hoque (PW-11). The seizure memo of axe is exhibit 6. Badrul Hoque (PW-11), Suresh Rabidas (PW-8) and Ratan Rabidas (PW-9) are witnesses to the seizure of axe. 6. Since the condition of other victim Manoj did not improve in the Karimganj Civil Hospital, he was shifted to Silchar Medical College & Hospital for better treatment. But even there, he succumbed to injuries on 6.6.2011. 7. Soon after the appellant surrendered, he expressed his willingness to make confession. A prayer was, therefore, made by the Investigating Officer to the Judicial Magistrate for recording his confession. Anup Khanal (PW-13), Judicial Magistrate 1st Class, recorded the confessional statement exhibit 8 of appellant. The appellant, in his confession, admitted causing injuries to both Manoj and Naresh with an axe. He also admitted that after causing injuries to them, he threw the axe in the bushes of the homestead of Badrul Hoque and thereafter, having surrendered to the police at Karimganj, the appellant however pleaded false implication during the trial. 8. The trial court relying upon the evidence of prosecution witnesses as well as the judicial confession of appellant convicted and sentenced him as aforesaid. 9. Anup Khanal has testified that he recorded the confession of appellant after ensuring that it was voluntary and without any pressure. According to the evidence of Anup Khanal, he had given reflection time of 24 hours to the appellant and ensured that appellant was kept separately from other inmates in the Jail. We also find that confessional statement of appellant was recorded strictly in compliance with the provisions of Section 164 of the Code of Criminal Procedure and it was voluntary. The confessional statement of appellant is as under:- “My name is Sarwan Kumar Rabidas. My wife and I reside in a Kutcha house at our village. Naresh Rabidas (deceased) and his wife also lived near our house in a separate house sharing the same courtyard. We have been living in the said house for about 14 years. Even my marriage had taken place in that house. Since before four years, Naresh Rabidas and his family used to torture us by various ways. Since after my father’s death, nobody lived with me except for my wife. We have been living in the said house for about 14 years. Even my marriage had taken place in that house. Since before four years, Naresh Rabidas and his family used to torture us by various ways. Since after my father’s death, nobody lived with me except for my wife. After I leave to go for the tea garden, my wife remains alone at home. Taking the opportunity of my absence at home, one day during last Durga Puja, Naresh Rabidas (deceased) trespassed onto my house by breaking open the door in order to commit bad act on my wife Swasti Rabidas. When my wife screamed, the neighbouring people turned up and (the deceased) Naresh failed to commit bad act on my wife. I had a ‘bichar’ (extra-judicial trial) arranged by the Gram Panchayat of my village but, Naresh did not abide by the decision arrived at the ‘bichar’. Since I don’t have money, I did not lodge any complaint with the police station or in the court. Week after that, when I was on duty in the tea garden, he again tried to enter my house in the night by breaking open the door but as my wife screamed, he fled away fearing that people might come there. About 17 to 18 days before that, when I was in the market and my wife was alone at home, Naresh Rabidas and his son Manoj Rabidas along with their inmates assaulted her and destroyed the walls and doors of the house by breaking those. Later on, hearing about the incident from my wife, I lodged a complaint with the Panchayat. On the day of the incident i.e. on Thursday, a ‘bichar’ was held in the Panchayat over the allegation raised by me. In that ‘bichar’ Naresh Rabidas (deceased) and his son Manoj Rabidas did not agree to obey the ‘bichar’. Instead, he threatened me with life, in front of the Panchayat. Then I went home in a run, brought an axe from home and hurt Manoj Rabidas on his back near the village market. Thereafter, I went towards the factory of the tea garden and there I met Naresh Rabidas. Naresh had a dao in his hand. On seeing me, Naresh, armed with the dao, came in a run towards me. I, too, ran towards him and hurt him in his face with the axe that was in my hand. Thereafter, I went towards the factory of the tea garden and there I met Naresh Rabidas. Naresh had a dao in his hand. On seeing me, Naresh, armed with the dao, came in a run towards me. I, too, ran towards him and hurt him in his face with the axe that was in my hand. Thereafter, I ran away from that place and threw the axe in the jungle of the homestead of Barai Mia in the Nayagrambasti and surrendered to the police at Karimganj Police Station. I also detailed the incident to the Police. I don’t want to speak anything else.” 10. The above quoted confessional statement of appellant that he caused injuries to Manoj on his back and Naresh on his face is substantially corroborated by the medical evidence. Post mortem examination report exhibit 7 of Manoj proved by Dr. Bushan Chandra Roy Medhi (PW-12) confirms that he died due to massive cut injuries on the upper most part of back of chest wall on mid vertebral line. Likewise, one deep lacerated injury extending from right eye ball to upper aspects of the face was found on the dead body of Naresh by Dr. Shibnath Paul (PW-10). His post mortem examination report in this regard is exhibit 5. Both the doctors have testified that injuries on Manoj and Naresh were ante mortem in nature. There cannot also be any doubt that injuries on the back of Manoj and on the face of Naresh were caused by an axe. 11. Jayanti Rabidas (PW-4) was worker in the Tea Garden. She has testified that on the date of incident at about 6.30 PM, while returning from market, she saw the appellant causing injury to Naresh in front of the Factory. On seeing this, she raised an alarm and reported the matter to the Manager of Factory. According to the evidence of Jayanti, the Manager then came to the place of occurrence and saw Naresh there. Pabitra Kumar Das (PW-14) has admitted in his evidence that the Manager of the Factory did telephonically inform him about the dead body lying at the Factory. According to the evidence of Jayanti, the Manager then came to the place of occurrence and saw Naresh there. Pabitra Kumar Das (PW-14) has admitted in his evidence that the Manager of the Factory did telephonically inform him about the dead body lying at the Factory. Witnesses – Dilkumar Rabidas (PW-3), Srijan Tati (PW-5) and Jawahar Prasad Kairi (PW-6) who are workers in the Tea Garden, have also testified in one voice that they saw the appellant chasing angrily with an axe in his hand and soon thereafter, they heard that he had killed Naresh. The evidence of these witnesses thus corroborates the confessional statement of appellant. 12. Mina Kumari Rabidas (PW-2) is wife of Naresh and mother of Manoj. According to her evidence, on the date of incident at about 6 PM, she met Manoj, while he was returning after appearing Class-X examination, who told her that appellant had assaulted him on his back with an axe. Mina Kumari has further testified that she immediately embraced Manoj and then took him to the hospital, where she was informed that even her husband had been assaulted. Badrul Hoque (PW-11) is an independent witness. And although he was declared hostile by the prosecution, he in his evidence confirmed that pursuant to the disclosure statement of appellant, one axe was recovered from the bushes of his homestead. The confessional statement of the appellant about the recovery of axe from the bushes of homestead of Badrul Hoque, thus, further stands corroborated by the evidence of Badrul Hoque. 13. On scanning the evidence brought on record, we have no iota of doubt that the confessional statement of appellant was voluntary and truthful. It also stands corroborated by the medical evidence and the evidence of prosecution witnesses. No ground for interference with the impugned judgment is, therefore, made out. 14. The appeal has no merit and is accordingly dismissed.