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2016 DIGILAW 895 (GAU)

Lesu Bauri v. State of Assam

2016-09-28

AJIT SINGH, N.CHAUDHURY

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JUDGMENT & ORDER : N. Chaudhury, J. Appellant Lesu Bauri was convicted by learned Sessions Judge, Sivasagar, in Sessions Case No. 42(S-S)/2012 under Section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and also to pay a sum of Rs.5,000/-, in default to suffer rigorous imprisonment for further six months. The appellant has preferred this Jail appeal challenging his conviction and sentence. 2. The prosecution story is that one Puran Karmakar lodged an ejahar with Halowating Police Station on 30.12.2011 at 12 noon alleging that Lesu Bauri is the elder brother of his wife and this Lesu Bauri killed his wife Ripa Tanti with a naga dao at around 8.30 a.m. on the same day. Halowating Police Station Case No. 36/2011 under Section 302 of the Indian Penal Code was accordingly registered and investigation started. Having completed the investigation and after obtaining post mortem report of the dead body, Charge-sheet No. 3/12 was filed by the Investigating Officer on 09.12.2012 before the learned Chief Judicial Magistrate, Sivasagar, who committed the case to the Court of Sessions by his order dated 02.03.2012. The learned Sessions Judge, thereafter, framed charge against the accused under Section 302 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried. 3. In course of trial prosecution examined as many as 11 witnesses including Medical Officer and Investigating Officer and the learned Sessions Judge thereupon examined the accused person under Section 313 of the Code of Criminal Procedure. 4. PW 1, Puran Karmakar, being informant deposed that the accused and the deceased being husband and wife left for their work together by a ladies bicycle and so he was of the view that the accused might have killed his wife. PWs 2 and 3 are not material witnesses in the case. But PW 4, Prasanta Borah, being a constable in Halowating Police Station, deposed that the accused himself came to the Police Station at around 8.30 a.m. on the date of occurrence and confessed before the Officer-in-charge of the Police Station that he had killed his wife by hacking with dao. He handed over a dao to the Second Officer and the same was seized vide Exhibit-3 where PW 4 signed as a witness. Material Exhibit-1 is the dao. He further stated that there was no blood stain in the dao. He handed over a dao to the Second Officer and the same was seized vide Exhibit-3 where PW 4 signed as a witness. Material Exhibit-1 is the dao. He further stated that there was no blood stain in the dao. The same statement was made by PW 5, Ramdev Kurmi, another constable of the same Police Station. PW 6, Kumud Dutta, is a homeguard of the Police Station and he was also a witness to the seizure of dao on being produced by the accused. PW 8, Ganesh Rajput, is inquest witness. He had nothing to say about commission of the offence. PW 9, Dr. Brojen Saikia, who held post mortem examination over the dead body, found the following two injuries caused by sharp weapon :- “No.1.:- One incised wound on left upper neck on lateral aspect upto the back involving part of occipital region of scalp. Whole the vertebrae and spinal cord transected with part of brain damaged. Size – 7”. No.2:- One incised wound on Lumber region of abdomen involving anterior aspect and back on left side. Size is about 6”. Abdomen opened and intestine ruptured. Wound is on left side.” PW 10, Tiru Prasad Karmakar, could not furnish any information and so he is also not a material witness. PW 11, Lohit Chetia, is the Investigating Officer. He stated that G.D. Entry No.658 dated 30.12.2011 was made after the accused surrendered before him at Police Station and handed over Material Exhibit-1 dao. The dao was accordingly seized vide Exhibit-1. As the accused person confessed to have killed his wife he sent him for recording his statement under Section 164 of the Code of Criminal Procedure before the learned Magistrate but the accused did not make the statement there. He submitted Exhibit-7 charge-sheet in the case. 5. In course of examination under Section 313 of the Code of Criminal Procedure the accused was asked as to whether he had gone to Halowating Police Station on 30.12.2011 at 8.30 a.m. taking a long naga dao in his hand to which he answered in the affirmative. He was then asked as to whether the accused had stated before police that he had hacked his wife with a dao. The accused answered in the affirmative in this question as well. He was then asked as to whether the accused had stated before police that he had hacked his wife with a dao. The accused answered in the affirmative in this question as well. Even as against question No.30 put to him under Section 313 of the Code of Criminal Procedure the accused person stated that he killed his wife Ripa Tanti by dealing a dao blow and then appeared in the Police Station with the dao. Relying on all these circumstances the learned trial Court was of the view that offence of the accused person has been proved beyond reasonable doubt and that he was liable to be convicted under Section 302 of the Indian Penal Code. Accordingly he was convicted and after hearing him on sentence he was sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.5000/-, in default to suffer rigorous imprisonment for further six months. 6. We have heard Ms. R. D. Mazumdar, learned Amicus Curiae, for the appellant and Mr. Makhan Phukan, learned Additional Public Prosecutor, Assam for the State. We have also perused the trial Court records. 7. As pointed out above, the accused is the husband of the deceased. There is evidence on record to show that he and the deceased started for their places of work together but the accused has not given any explanation as to when had his wife parted from him. PW 1, Puran Karmakar, deposed that they were last seen together. The accused immediately after commission of the offence went on foot to the Halowating Police Station and handed over the dao to the Second Officer which was accordingly seized vide Exhibit-1. Although confession made by the accused before police is hit by Section 26 of the Evidence Act but the fact as to recovery of the weapon from him is relevant under Section 27 of the Evidence Act. The G.D. Entry No. 658 dated 30.12.2011 was proved by the Investigating Officer and it shows that a naga dao about 30½ inch long with wooden handle was seized from the possession of the accused person on being produced at the Police Station. The G.D. Entry No. 658 dated 30.12.2011 was proved by the Investigating Officer and it shows that a naga dao about 30½ inch long with wooden handle was seized from the possession of the accused person on being produced at the Police Station. If these two circumstances as to last seen together and production of weapon by the accused are considered together along with his statements made under Section 313 of the Code of Criminal Procedure it becomes corroborated that he had visited the Police Station and handed over the dao to the police. Thus, there are altogether three circumstances against the accused person and the same are as follows :- (i) He was last seen together with the deceased when both of them being husband and wife started for their respective places of work; (ii) Immediately after the occurrence he surrendered to police and produced the incriminating dao at the Police Station; and (iii) When he was given opportunity to explain the materials available against him in course of examination under Section 313 of the Code of Criminal Procedure he straightaway confessed to have killed his wife by hacking with the dao. The statements made under Section 313 of the Code of Criminal Procedure may not amount to evidence but it corroborates recovery of the weapon from him at the Police Station and it also supports the theory of last seen together which itself though a weak evidence becomes reliable in view of the other two circumstances. In this case, prosecution, thus, has successfully established a chain of circumstances leading to the irresistible conclusion that it is the accused alone who could have caused death of his wife. He not having given any explanation as to when had his wife parted form him, suspicion against him crystallizes into inculpatory material against him. The circumstances as referred to above are such that no other inference is possible other than the one accepted by the learned trial Court. We are convinced that the learned Sessions Judge has not committed any error in convicting the appellant under Section 302 of the Indian Penal Code in view of the aforesaid circumstances. 8. The appeal, therefore, deserves to be dismissed. It is accordingly dismissed. Send down the records.