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2016 DIGILAW 874 (GAU)

Hemanta Das v. State of Assam

2016-09-20

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT AND ORDER : Ajit Singh, J. Appellant Hemanta Das has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.1000/- with default stipulation. 2. The victim of the incident was Sudhir Mal, aged about 55 years. 3. According to the prosecution case, on 29.4.2007 around 4 p.m., Sudhir Mal was going to the house of Ekadashi Mal (PW-2) from the house of informant Babul Mal (PW-1). On his way, when he reached near the local Lower Primary School, the appellant armed with a dao attacked him on the road. The appellant caused one injury on the right side of his back and another on his neck, as a result of which, he died on the spot. Both Babul Mal and Ekadashi Mal are sons of Sudhir Mal. Babul Mal made the ejahar exhibit 1 at Police Station Dholai wherein he categorically stated that he saw the appellant committing the crime. Earlier to making of ejahar, Babul Mal had also verbally informed the police that appellant had killed Sudhir Mal by causing injuries with a dao. This oral information was recorded in the General Diary as Entry No.583 dated 29.4.2007 in the same Police Station. The Entry is exhibit 7. 4. Investigating Officer - Putul Bharali (PW-7) immediately rushed to the place of occurrence and found the dead body of Sudhir Mal lying on the right side on the road. Thereafter, he prepared inquest report exhibit 2 over the dead body. He then sent the dead body for post mortem examination. He also arrested the appellant from his house and seized one dao from his possession. The seizure of dao is exhibit 4. 5. Dr. Manoj Kumar Sinha conducted the post mortem examination on the dead body of Sudhir Mal. He found one cut injury 4x2 cm below the angle of mandible at the lateral side of the neck. He also found one cut injury on the clavicle. The doctor opined that Sudhir Mal died due to cut injuries which were ante mortem and caused by a sharp cutting weapon. The post mortem examination report was proved by Dr. Gunojit Das (PW-5) who worked with Dr. Manoj Kumar Sinha and was acquainted with his handwriting and signature. The post mortem examination report is exhibit 3. 6. The doctor opined that Sudhir Mal died due to cut injuries which were ante mortem and caused by a sharp cutting weapon. The post mortem examination report was proved by Dr. Gunojit Das (PW-5) who worked with Dr. Manoj Kumar Sinha and was acquainted with his handwriting and signature. The post mortem examination report is exhibit 3. 6. During trial, the appellant denied the charge of committing the murder of Sudhir Mal and pleaded false implication. He, however, did not examine any witness in defence. 7. The trial court relying upon the evidence of eye witnesses-Babul Mal (PW-1), Ekadashi Mal (PW-2), Nandalal Mal (PW-3) and Rasomoy Mal (PW-4) convicted and sentenced the appellant as aforesaid. 8. It is argued on behalf of the appellant that the trial court committed an illegality in believing the evidence of aforesaid witnesses because they are related to deceased Sudhir Mal and hence were interested against him. Learned Additional Public Prosecutor, on the other hand, defended the conviction and sentence of the appellant. 9. Since Babul Mal and Ekadashi Mal are sons of Sudhir Mal, we examined their evidence more carefully. Babul Mal has testified that he lodged the ejahar exhibit 1 of the incident. In the ejahar, the name of appellant is categorically mentioned as the assailant of Sudhir Mal. According to his evidence, he saw the appellant causing injuries on the back and neck of Sudhir Mal with a dao because he was on the road. It is to be noted that Sudhir Mal after visiting the house of this witness was going towards the house of Ekadashi Mal. The appellant attacked him on the road. Babul Mal naturally had the occasion to be on the road to see off Sudhir Mal and therefore saw the appellant causing injuries to Sudhir Mal. Babul Mal has emphatically denied the suggestion of appellant that he could not witness the incident. Nothing has been brought out in the cross examination to discredit his evidence. The evidence of Babul Mal also stands substantially corroborated by the evidence of Investigating Officer-Putul Bharali. He has testified that Babul Mal promptly informed him on the date of incident around 6 p.m. that appellant had killed his father (Sudhir Mal) with a dao and the information was recorded in the General Diary as Entry No.583 dated 29.4.2007. The evidence of Babul Mal also stands substantially corroborated by the evidence of Investigating Officer-Putul Bharali. He has testified that Babul Mal promptly informed him on the date of incident around 6 p.m. that appellant had killed his father (Sudhir Mal) with a dao and the information was recorded in the General Diary as Entry No.583 dated 29.4.2007. In this Entry, the name of appellant is clearly mentioned as the assailant of Sudhir Mal. Investigating Officer-Putul Bharali has also admitted about making of written ejahar by Babul Mal. The evidence of Babul Mal against the appellant is further fortified by the medical evidence. The post mortem examination report exhibit 3 confirmed two injuries on the body of Sudhir Mal as per the evidence of Babul Mal. After carefully scanning the evidence of Babul Mal, we are of the firm view that he is reliable and truthful witness and the trial court has rightly believed his testimony against the appellant. 10. Ekadashi Mal has testified that on hearing the commotion, he came out from the house and saw the appellant causing injuries to Sudhir Mal with a dao. And the trial court has believed his evidence. But on examining the evidence of this witness, we find that during investigation he did claim to have seen the incident. On the contrary, he stated that he was informed by Babul Mal about Sudhir Mal being killed by the appellant. We are, therefore, unable to believe that Ekadashi Mal really saw the incident. He being the son of Sudhir Mal, with a purpose to ensure conviction of the appellant, has improved his version in the court as an eye witness which he is not. His evidence thus cannot be relied upon. 11. Similar is the evidence of Nandalal Mal (PW-3) and Rasomoy Mal (PW-4). Both of them testified that they saw the appellant causing injuries to Sudhir Mal with a dao. But, in their police case diary statement, they said that they reached the spot on hearing the outcry of Babul Mal and saw Sudhir Mal lying on the road smeared with blood. It is thus clear that even these witnesses did not see the appellant committing the crime and therefore their evidence cannot be relied upon. 12. But, in their police case diary statement, they said that they reached the spot on hearing the outcry of Babul Mal and saw Sudhir Mal lying on the road smeared with blood. It is thus clear that even these witnesses did not see the appellant committing the crime and therefore their evidence cannot be relied upon. 12. In the fact situation of the case, even if we disbelieve the evidence of Ekadashi Mal (PW-2), Nandalal Mal (PW-3) and Rasomoy Mal (PW-4), still there is strong reliable evidence of Babul Mal against the appellant. As seen above, Babul Mal has stood firm in his evidence that he saw the appellant causing injuries to Sudhir Mal with a dao. And his evidence stands corroborated by the medical evidence as well as the evidence of Investigating Officer- Putul Bharali. Having regard to the evidence of Babul Mal, we are of the considered view that appellant alone was the perpetrator of crime. We accordingly dismiss the appeal. The appeal is dismissed.