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2016 DIGILAW 985 (GAU)

Hiralal Guwala alias Tipu v. State of Assam

2016-11-08

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT & ORDER : N. Chaudhury, J. In this appeal under section 374 of the Code of Criminal Procedure, Hiralal Guwala alias Tipu has challenged his conviction under section 302 of the IPC in Sessions Case No. 242/2012 of the Court of learned Sessions Judge, Cachar at Silchar. He has been sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs. 2,000/-, in default, to suffer rigorous imprisonment for a period of one month. 2. The prosecution story is that one Kalyani Bhumij, as informant, lodged an ejahar with Officer In-charge of Ghungoor outpost of Silchar Police Station on 03.11.2006 informing that Smti. Jyoti Bhumij, a blind woman, had given birth to a male child about 40 days ago and was at her care and custody as per the request of public of Silcoorie Tea Estate and other panchayats. At around 7 A.M. on the date of ejahar, she had gone out to the garden to attend her duties when her daughter-in-law Nikita was at home. She heard a scream of Jyoti all on a sudden who was sitting at the veranda of the house with the new born infant at her lap. She shouted that someone had taken away her child forcibly from her lap. Nikita came out and raised alarm whereupon neighbouring people assembled. At that time, two children named Kusum Bhumij and Jhuki Mal informed that they had seen Hiralal Guwala going towards jungle with the child of Jyoti. Accordingly, the informant and others made search and found the child in dying state in jungle in front of their well. They brought the child but he died after some time. Ghungoor outpost after making G.D. Entry No. 63 forwarded the same to Silchar Police Station and accordingly Silchar P.S. Case No. 1774/2006 under section 302 of the IPC was registered. 3. After obtaining the post mortem report and recording statements of witnesses on the following day, the police submitted charge sheet No. 172 on 27.02.2007 against accused Hiralal Guwala under section 302 of the IPC. On being committed to Sessions, this case was registered as Sessions Case No. 242/2012 under section 302 of the IPC in the Court of learned Sessions Judge, Cachar at Silchar. The accused pleaded not guilty and claimed to be tried. 4. On being committed to Sessions, this case was registered as Sessions Case No. 242/2012 under section 302 of the IPC in the Court of learned Sessions Judge, Cachar at Silchar. The accused pleaded not guilty and claimed to be tried. 4. In course of trial, prosecution examined as many as 12 witnesses including the Medical Officer and Investigating Officer. PWs 2, 5, 6 and 11 are the eye witnesses in this case where PWs 7, 8 and 9 spoke of hearsay evidence. PW 3, Dr. BC Roy Medhi, held post mortem over the dead body and found the following injuries:- Injuries: (1) Abraded contusions, three in numbers, 2 cm x 1 cm; 4 cm x 2 cm and 3 cm x 0.3 cm present on mid and right frontal region of scalp. (2) Abraded contusions, 2 cm x 1 cm and 3 cm x 0.2 cm present on Vertex of scalp (skull). The part of scalp found depressed. On dissection, contusions and haemorrhage present on mid and right frontal, right parietal and occipital regions. On skull, one fissure fracture found on frontal bone. Vertebrae found hearlthy. Membrane – congested. Subdural haemorrhage present in both side of cerebral hemispheres. Brain – contusions present in frontal and right parietal lobes. Brain congested and soft in consistency. The organs of Thorax and abdomen found healthy. Plearue, Lungs and Kidneys found congested. In his opinion, death was due to, as a result of head injury sustained which was ante-mortem and caused by blunt force impact on head and is homicidal in nature. 5. PW 1, informant, supported her case stated in the FIR. She claimed to have been informed by her daughter-in-law Nikita Bhumij about the commission of offence committed by Hiralal and also made mention of Kusum, Rama and others as eye witnesses of the case. She lodged the ejahar with Ghungoor outpost of Silchar Police Station. 6. PW 2, Nikita Bhumij, said that hearing scream she came out and saw Hiralal taking away the child of Jyoti. She chased him. Hiralal then threw the child to the bamboo bush and fled. Child was alive for some time but expired thereafter. This testimony of PW 2 is corroborated by PWs 5, 6 and 11. PW 5 is Kusum Bhumij, PW 6 is Ambika Bhumij and PW 11 is Jhuki Mal alias Rama Mal. She chased him. Hiralal then threw the child to the bamboo bush and fled. Child was alive for some time but expired thereafter. This testimony of PW 2 is corroborated by PWs 5, 6 and 11. PW 5 is Kusum Bhumij, PW 6 is Ambika Bhumij and PW 11 is Jhuki Mal alias Rama Mal. All these three witnesses spoke in one voice and testified that they were playing near the house of the informant at the relevant time on the date of occurrence. They saw Hiralal carrying the child of Jyoti and threw the baby near the well and fled. They also noticed that Hiralal was also chased by Nikita (PW 2). Even after thorough cross examination of these three eye witnesses, defence could not shake their credibility. Thus, on appreciation of the depositions of PWs 2, 5, 6 and 11, it is clear that it is Hiralal who snatched the baby from the lap of Jyoti when she was sitting in the veranda of informant. Jyoti was blind and Hiralal took this opportunity. He threw the child in the bamboo grove and because of this, child got severe injury on the head for which his scalp got depressed. On dissection during post mortem examination, doctor found contusion and haemorrhage on mid and right frontal, right parietal and occipital regions. One fissure was also found on the frontal bone. According to the doctor, such injury on the head is the cause of instantaneous death of the helpless child. On the face of such overwhelming testimony of eye witnesses, the learned Sessions Judge passed the impugned judgment and order convicting the appellant under section 302 of the IPC and sentencing him as aforesaid. 7. Mr. AM Bora, learned counsel for the appellant, fairly submitted that on the face of the materials available on record it cannot be denied that Hiralal snatched the baby from the lap of Jyoti and threw him on ground resulting in his death. But there is no material to hold that this he did with intention to commit murder or that he had knowledge that death would be caused to the child because of such throwing. He wanted to rely on the testimony of Jyoti who eventually turned hostile and did not support the prosecution. But there is no material to hold that this he did with intention to commit murder or that he had knowledge that death would be caused to the child because of such throwing. He wanted to rely on the testimony of Jyoti who eventually turned hostile and did not support the prosecution. From the testimony of Investigating Officer it appears that, Jyoti is an unmarried young blind woman and gave birth to the child. Hiralal had his own reasons for wiping out the existence of the child. He claimed to be a bachelor and without any income. Mr. K Konwar, learned Additional Public Prosecutor, on the other hand, vehemently argued that the nature of the impact on the person of 40 days old baby and the action of the accused and the corresponding injury on the person of the baby is only suggestive of the fact that, accused Hiralal wanted to get rid of the child. He did not want the child to survive and taking opportunity of the blindness of Jyoti he snatched the child and threw him forcefully on the ground in bamboo grove. The child died instantaneously and so there is no scope left for having any doubt about the intention of the accused. 8. Having heard the learned counsel for the parties and on perusal of the testimony of the witnesses, particularly of PWs 2, 5, 6 and 11, we are of the opinion that the learned Sessions Judge has rightly convicted appellant under section 302 of the IPC and there is no scope for doubt as to the intention of the accused. The appeal is devoid of any merit. It is accordingly dismissed. The impugned judgment of conviction and sentence is hereby upheld. 9. Send down the lower court records.