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2016 DIGILAW 909 (GAU)

Hari Prasad Nunia v. State of Assam

2016-10-03

AJIT SINGH, N.CHAUDHURY

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JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Hari Prasad Nunia has been convicted under Section 302 of Indian Penal Code and sentenced to rigorous imprisonment for life and fine of Rs.5,000/- with default stipulation. 2. The victim of incident was Mina Chouhan, aged about 45 years. She was also wife of the appellant. 3. According to the prosecution case, appellant along with his wife Mina Chouhan lived together in their house at Natun Ramnagar, District Cachar. Their daughter Kabita Nunia (PW-4) and son Brojo Kumar Nunia (PW-5) also lived with them. On 19.8.2007, both appellant and Mina Chouhan left their house together for the field. And while working in the field, appellant made a murderous assault on Mina Chouhan with a spade. Mina Chouhan died on the spot due to multiple injuries caused to her. Fulmati Chouhan (PW-3) saw the appellant causing injuries to Mina Chouhan. She raised hue and cry and narrated the incident to her son Patiram Chouhan (PW-2). Ejahar exhibit 3 of the incident was made on the same day at Police Station Sonai, District Silchar by Kabita Nunia. In the ejahar, Kabita Nunia mentioned the name of appellant as an assailant of Mina Chouhan. Investigating Officer - Amalendu Chanda (PW-7) rushed to the place of occurrence and found the injured dead body of Mina Chouhan in the field. A.R.Mazumdar, Executive Magistrate prepared inquest report exhibit 1 of the dead body. At that time, the dead body was kept in the police truck. Thereafter, Amalendu Chanda seized the spade on being produced by Kabita Nunia. On 20.8.2007, Dr. B.C.Roy Medhi (PW-6) conducted the post mortem examination on the dead body. He found as many as five cut injuries on the head of Mina Chouhan. The doctor, therefore, opined that she died due to injuries caused to her which were ante mortem in nature. His post mortem examination report is exhibit 4. The doctor after examining the seized spade also opined that injuries could have been caused by its sharp side. 4. During trial, the appellant abjured his guilt and pleaded false implication. He while being examined as an accused took the plea that since it was raining Mina Chouhan ran and fell on a bamboo heap lying on the side of road and sustained injuries. 5. The trial court relying upon the evidence adduced by the prosecution, convicted and sentenced the appellant as aforesaid. He while being examined as an accused took the plea that since it was raining Mina Chouhan ran and fell on a bamboo heap lying on the side of road and sustained injuries. 5. The trial court relying upon the evidence adduced by the prosecution, convicted and sentenced the appellant as aforesaid. The trial court also disbelieved the defence plea of appellant as it was unacceptable in the light of post mortem examination report. 6. After hearing the learned counsel for the appellant and Additional Public Prosecutor, we are of the considered view that the appeal has no merit and deserves to be dismissed. As already mentioned above, Kabita Nunia and Brojo Kumar Nunia are daughter and son of the appellant. They have testified that on the date of incident, both appellant and Mina Chouhan went together to work in the field and around 1.30 p.m., they heard commotion from there. According to Kabita Nunia and Brojo Kumar Nunia, in the field they found Mina Chouhan lying dead with injuries on her body and appellant was missing. Kabita Nunia admits to have lodged the ejahar at Police Station against the appellant whereupon police came and did necessary investigation. She in the cross examination however says that she could not see who killed Mina Chouhan. According to Brojo Kumar Nunia he was informed by one Chutka Ghatowar that appellant had killed Mina Chouhan. Though Kabita Nunia and Brojo Kumar Nunia say that they did not see who killed Mina Chouhan, they have stood firm on one point that appellant and Mina Chouhan had left the house together for the field. 7. Gulap Chand Chouhan (PW-1) is a co-villager of appellant. He has testified that on hearing the hue and cry that appellant had killed Mina Chouhan, he rushed to the place of occurrence and found her lying dead in the field and appellant was standing with a spade in his hand at a distance of about 50 metres from the dead body. According to the evidence of Gulap Chand Chouhan, on hearing the hue and cry, Kabita Nunia and Brojo Kumar Nunia also came to the place of occurrence whereafter Kabita Nunia lodged the ejahar. 8. The field of witness Patiram Chouhan is adjoining to the field of appellant. He has testified that on the date of incident, he along with his mother Fulmati Chouhan had worked in the field. 8. The field of witness Patiram Chouhan is adjoining to the field of appellant. He has testified that on the date of incident, he along with his mother Fulmati Chouhan had worked in the field. But, during afternoon, he returned home for having meal and after some time, Fulmati Chouhan came running and reported that appellant had killed Mina Chouhan by giving blows with a spade. According to Patiram, he then rushed to the place of occurrence and found Mina Chouhan lying dead. He also says that he saw the appellant going away from the place of occurrence with a spade in his hand. 9. Fulmati Chouhan who was the sole eye witness of the incident however did not support the prosecution case and turned hostile. 10. Whatever it may be, from the evidence of Kabita Nunia and Brojo Kumar Nunia who was daughter and son of appellant, it is established that both appellant and Mina Chouhan left their house together to work in the field and in the field, Mina Chouhan was found dead with injuries all over her body. Gulap Chand Chouhan saw the appellant standing near the dead body of Mina Chouhan with a spade in his hand. Likewise, Patiram Chouhan on reaching the place of occurrence also saw the appellant going away with a spade in his hand. No plausible explanation has been given by the appellant as to how Mina Chouhan sustained multiple injuries in the field which resulted into her death. The appellant being the husband, it was within his knowledge as to how Mina Chouhan sustained fatal injury especially when it has been established that he and Mina Chouhan were together at the place of occurrence. The explanation given by the appellant that since it was raining and Mina Chouhan ran and fell on a bamboo heap due to which she sustained injuries is apparently fallacious. This we say so because the post mortem examination report confirmed that Mina Chouhan died due to multiple cut injuries which could be caused by the sharp side of the seized spade. Also had the appellant not killed Mina Chouhan, their daughter Kabita Nunia would not have mentioned his name in the ejahar which was lodged promptly. 11. For these reasons, we find ourselves in complete agreement with the finding of the trial court that appellant alone was the perpetrator of the crime. The appeal is dismissed.