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2017 DIGILAW 1455 (GAU)

Dimbeswar Rai v. State of Assam

2017-11-18

AJIT SINGH, UJJAL BHUYAN

body2017
JUDGMENT : AJIT SINGH, J. 1. The sole appellant Dimbeswar Roy has been convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs. 5,000 with default stipulation for committing murder of Khargeswar Roy, aged about 35 years. He has also been convicted under section 324 of the Indian Penal Code and sentenced to imprisonment for 1 year for causing injury to Chitra Roy, wife of Khargeswar Roy. 2. According to the prosecution case, appellant was the next door neighbour of Khargeswar Roy. The houses of appellant and Khargeswar Roy were adjacent. They lived in the same compound separated by a fence. There was some dispute between appellant and Khargeswar Roy regarding a portion of land. The appellant was, therefore, nurturing a grudge against Khargeswar Roy and his family for that. It was cold winter morning on 9.11.2008 when Khargeswar Roy got up in early hours and started working in his front yard. It was about 5 a.m. He was preparing some bamboo posts to erect one fencing and his wife Chitra Roy (PW-5) was sweeping the passage. Chitra Roy suddenly noticed that a man was approaching towards her. As the man had covered his face and body with a shawl she first mistook him as a woman. But when the man came closer, Chitra Roy identified him to be the appellant. Without a word, appellant then stabbed her in the stomach with a knife. She immediately fell down on the ground. Seeing this, Khargeswar Roy ran towards her for help but the appellant repeatedly stabbed him also in the chest. Khargeswar Roy also fell down on the ground. Seeing this, Chitra Roy yelled for help. 3. Hearing commotion, brother Birendra Nath Rai (PW-1) of Khargeswar Roy got up from the bed. His wife and daughter intimated him about the occurrence and he immediately rushed to the house of Khargeswar Roy. In the meantime, many people including neighbours Apurba Roy (PW-2) and Sankar Baruah (PW-3) gathered at the place of occurrence on hearing the cries of Chitra Roy. Ranjit Narayan Das (PW-4) was sleeping at that time and he also heard Chitra Roy shouting that appellant had assaulted Khargeswar Roy. Hearing this, he also rushed to the house of Khargeswar Rpy. In the meantime, many people including neighbours Apurba Roy (PW-2) and Sankar Baruah (PW-3) gathered at the place of occurrence on hearing the cries of Chitra Roy. Ranjit Narayan Das (PW-4) was sleeping at that time and he also heard Chitra Roy shouting that appellant had assaulted Khargeswar Roy. Hearing this, he also rushed to the house of Khargeswar Rpy. Likewise, Biju Gogoi (PW-6) hearing commotions and seeing people running helter-skelter, came out of his house and went to the house of Khargeswar Roy. They found both Khargeswar Roy and Chitra Roy in injured condition and some neighbours trying to save Khargeswar Roy by massaging oil over his body. Chitra Roy told Apurba Roy, Sankar Baruah and Ranjit Narayan Das that appellant had stabbed her and Khargeswar Roy. The people gathered there immediately called for ambulance and sent Chitra Roy to hospital. Unfortunately, Khargeswar Roy succumbed to his injuries whereas Chitra Roy was admitted in Guwahati Medical College and Hospital and was discharged four days later, after treatment. 4. Birendra Nath Rai lodged the First Information Report Exhibit-1 on that day itself at Baihata Police Station. Md. Jaimul Islam (PW-11) was the Officer in-charge of that pplice station and he immediately rushed to the place of occurrence. Seeing police approaching the house of Khargeswar Roy, Rajat Deka (PW-7) followed them to the house of Khargeswar Roy. Jaimul Islam drew sketch map (Exhibit-9) in the presence of Rajat Deka and Umesh Baruah (PW-8). He then sent the body of Khargeswar Roy to Guwahati Medical College and Hospital for post mortem examination. 5. In the meantime, appellant was also hospitalized for some injuries and referred to Guwahati Medical College and Hospital for better treatment. Md. Jaimul Islam took him into custody on 19.11.2008, when he was released from hospital. 6. Dr. Kanak Chandra Das (PW-9) conducted the post mortem examination on the dead body of Khargeswar Roy. He found two deep stab wounds on the left side of chest. According to the doctor, the injuries were caused by a sharp edged weapon and death was due to stab injuries, which were ante mortem and homicidal in nature. His post mortem examination report is Exhibit-3. 7. Dr. Nilotpal Gogoi (PW-10) examined Chitra Roy and found one penetrating injury in her abdomen which was simple in nature but caused by sharp weapon. Exhibit-7 is his injury report. His post mortem examination report is Exhibit-3. 7. Dr. Nilotpal Gogoi (PW-10) examined Chitra Roy and found one penetrating injury in her abdomen which was simple in nature but caused by sharp weapon. Exhibit-7 is his injury report. After completing the investigation, Sub-Inspector Parag Jyoti Buragohain submitted Exhibit-10 charge-sheet against the appellant under sections 302 and 326 of the Indian Penal Code. 8. During trial, the appellant abjured his guilt and while being examined as an accused under section 313 of the Code of Criminal Procedure, he stated that on the day of occurrence when he was going by the road alone, some persons intercepted and assaulted him from behind, as a result, he got some injuries and fell unconscious, so could not see as to who assaulted him. The appellant also stated that he saw Khargeswar Roy and Chitra Roy amongst those who intercepted him on the road and there was a quarrel between them. However, appellant did not adduce any evidence to support his case. The trial court relying upon the evidence adduced by Chitra Roy and also the medical evidence, convicted and sentenced him as aforesaid. 9. It is argued on behalf of the appellant that Chitra Roy is not a reliable witness and her evidence cannot be the sole basis for conviction of the appellant. No independent witness had seen the occurrence and it is the evidence of Chitra Roy that the person who made the assault had covered himself with a shawl. Besides, it was early morning of a winter day and as such there was darkness, so the identity of the assailant is very much doubtful and as such appellant is entitled for the benefit of doubt. 10. After hearing the learned counsel for the parties and perusing the record, we are of the view that the appeal deserves to be dismissed. It is the categorical evidence of Chitra Roy that she saw appellant stabbing her husband. She has also deposed that appellant first stabbed her and then stabbed Khargeswar Roy twice. She has then categorically testified that he stabbed in the chest of her husband which is supported by medical evidence. Appellant is her next door neighbour and cousin of Khargeswar Roy. As such there is no possibility that she would commit mistake in identifying the appellant. She has then categorically testified that he stabbed in the chest of her husband which is supported by medical evidence. Appellant is her next door neighbour and cousin of Khargeswar Roy. As such there is no possibility that she would commit mistake in identifying the appellant. Appellant had to come enough close to Chitra Roy to stab her in the stomach with a knife and it cannot be believed in one's wildest imaginations that the victim like her would not see the face of her assailant from such a close distance, even in the dim early morning. Besides, appellant also got injuries for which he was treated in hospital. The appellant in his statement recorded under section 313 of the Code of Criminal Procedure has admitted that he was assaulted by a group of people and he saw Khargeswar Roy and Chitra Roy amongst them. This also goes to prove that appellant was involved in the incident and as such there remains no doubt that Chitra Roy did see him as the assailant. Therefore, the defence plea that Chitra Roy failed to recognize the assailant in darkness is not acceptable. It is noteworthy that appellant did not even produce any evidence to prove that he was assaulted and injured by Khargeswar Roy and which provoked him to commit the offence in self-defence. 11. It is true that Chitra Roy deposed in a hush-hush manner concealing some material facts about the incident. She deposed that appellant stabbed her and Khargeswar Roy suddenly coming from nowhere and thereafter she fell unconscious. She also deposed that she regained consciousness in the hospital only. However, Birendra Nath Rai, Apurba Rai, Sankar Baruah and Ranjit Narayan Das have categorically deposed that Chitra Roy told them immediately after the occurrence that appellant had stabbed her and Khargeswar Roy. Their this evidence is not shaken even during their cross-examination and, hence, finds credence. Concealment of some facts by Chitra Roy would not make her entire evidence doubtful making it liable to be thrown away. ‘Falsus in uno, falsus in omnibus’ is not applicable in India and the said principle is to be considered as a rule of caution and not as a rule of law while testing the credibility of a witness. Chitra Roy's evidence that appellant stabbed her and Khargeswar Roy twice could not be thwarted by the defence. ‘Falsus in uno, falsus in omnibus’ is not applicable in India and the said principle is to be considered as a rule of caution and not as a rule of law while testing the credibility of a witness. Chitra Roy's evidence that appellant stabbed her and Khargeswar Roy twice could not be thwarted by the defence. Her injuries are supported by cogent medical evidence of Dr. Nilotpal Gogoi (PW-9) and as such her testimony attracts confidence. 12. The two attending doctors also found stab injuries on the body of Khargeswar Roy and Chitra Roy and opined that the injuries were inflicted by sharp weapon and knife is such a sharp weapon. Therefore, there is no room left for doubting the involvement of appellant in the occurrence and it is only he who is the perpetrator of crime. 13. For these reasons, we find no merit in this appeal and it is accordingly dismissed.