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2017 DIGILAW 963 (GAU)

Fagua Urao v. State of Assam

2017-07-20

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : Prasanta Kumar Deka, J. 1. Heard Ms. B. Sharma, the learned counsel Amicus Curiae appearing on behalf of the appellant. Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam. 2. This appeal has been preferred by the accused/appellant from jail against the judgment and order dated 13.07.2015 passed by the learned Sessions Judge Kokrajhar in Sessions Case No. 82/2013 thereby convicting the accused/appellant under Section 304 Part-II IPC and also under Section 324 IPC and sentenced him to suffer rigorous imprisonment for 10 years and fine of Rs. 10,000/-, in default, rigorous imprisonment for six months under Section 304 Part-II IPC, and also rigorous imprisonment for two years under Section 324 IPC, the period of sentences will run concurrently. 3. The case of the prosecution in brief is that on 10.04.2012 one Sri Ganesh Urao lodged an FIR before Salakati Police Out Post under Basugaon PS, Kokrajhar to the effect that on the same day at about 11 a.m., seeing the accused person assaulting physically one Chandan Urao with a dagger, when he tried to hold the dagger, the accused also hit on his chest with that dagger but the attending people finally able to hold the accused and handed over to police. Victim Chandan Urao was immediately taken to Kokrajhar Civil Hospital. Having received the FIR, police registered a case and investigated the matter and finally submitted charge-sheet under Section 341, 324 and 302 IPC against the accused person. On being committed to the learned court below, written charges under Section 302, 324 IPC were explained and read over to the accused to which the accused pleaded not guilty. On the basis of the said charge, the learned Sessions Judge, Kokrajhar in Sessions Case No. 82/2013 passed the judgment and order of conviction as aforesaid. Being aggrieved, the accused appellant has preferred this appeal. 4. Ms. B. Sharma, the learned Amicus Curiae submits that the prosecution failed to prove its story. She submitted that the PW-11, Timru Urao, though projected by the prosecution side as the eye witness, but his evidence is not convincing in order to prove the case beyond any reasonable doubt. The PW-11 though alleged to be the eye witness but from his deposition it is clear that he never raised hue and cry immediately after the incident. She submitted that the PW-11, Timru Urao, though projected by the prosecution side as the eye witness, but his evidence is not convincing in order to prove the case beyond any reasonable doubt. The PW-11 though alleged to be the eye witness but from his deposition it is clear that he never raised hue and cry immediately after the incident. The teacher and the lady who after enquiring the incident from PW-11, called the ambulance were never examined by the prosecution. PW-11 remained silent for about 15/20 days since the date of occurrence till he was taken by the Gaon Burah to the police where after his statements were recorded. There is no such cogent explanation with regard to his silence. It is also submitted that the accused person was at his home when he was caught by the villagers but the material exhibit-1(dagger) was shown by the public to the police and it was not seized from the custody of the accused/appellant person. 5. The wife of Chandan Urao (victim) was also not examined but most of the prosecution witnesses deposed that she was shouting by saying that the accused person has stabbed her husband by dagger. Ms. Sharma further submits that PW-1, Ganesh Urao, the informant, though deposed that he was injured on his chest by the accused person by the material exhibit-1, however, there is no proof in that aspect of the matter. PW-11, though deposed that he took a piece of cloth from the nearby house and covered the wound of the victim but as none from the said house was examined by the prosecution the same cannot be believed at all. The learned Amicus Curiae submits that the prosecution has failed to prove the fact of stabbing the victim by the accused/appellant beyond any reasonable doubt inasmuch as the motive of the accused person also could not be proved by the prosecution side. Accordingly, the conviction of the accused/appellant under Section 304 Part-II IPC and 324 IPC is liable to be set aside. 6. Mr. B.B. Gogoi, learned Additional Public Prosecutor submits that the prosecution established the fact that the accused/appellant had stabbed the victim in presence of PW-11. The injury so caused to the person of the victim had been stated by the PW-11 which is supported by the post mortem report. Mr. 6. Mr. B.B. Gogoi, learned Additional Public Prosecutor submits that the prosecution established the fact that the accused/appellant had stabbed the victim in presence of PW-11. The injury so caused to the person of the victim had been stated by the PW-11 which is supported by the post mortem report. Mr. Gogoi, further submitted that as held by the learned Sessions Judge that there are minor contradictions in respect of the deposition of the prosecution witnesses, however, the said contradictions are not vital inasmuch as the evidence of PW-11, that the accused/appellant inflicted the dagger blow on the person of the victim which resulted the death of the victim remained un-shattered, accordingly, Mr. Gogoi submits that the prosecution has been able to prove the story beyond any reasonable doubt. 7. Keeping in view the submissions of the learned Amicus Curiae and the learned Additional Public Prosecutor, this Court has gone through the judgment and the findings of the court below. Let us look into the evidence on record in order to examine to what extent the prosecution has been able to prove the story. 8. PW-1, Ganesh Urao lodged the FIR. He deposed that his house is one km away from the place of occurrence. He went to the place of occurrence after hearing the public commotion and saw Chandan Urao (victim) lying on the ground with cut injuries on his abdomen. This is believable as PW-11, Timru Urao eye witness stated that after the incident at about 11 a.m., one teacher and lady while passing through the place of occurrence inquired about the incident where after they started random phone calls through their mobile phone. Then the ambulance came. So at least till the victim was lying on the place of occurrence the ambulance did not come instantly and there is every possibility of finding the victim by the PW-1 at the place of occurrence. 9. PW-7, Dr. Atowar Rahman, Medical and Health Officer of Dholmara PHC in his deposition stated that he sent an ambulance on the request of the public of village Saharpur in between 11 a.m. to 12 noon. But after checking the victim, he referred to RNB Civil Hospital, Kokrajhar. PW-1, further stated that he along with other villagers including some of the witnesses apprehended the accused/appellant and thereafter tied him to a mango tree by the side of the road. 10. But after checking the victim, he referred to RNB Civil Hospital, Kokrajhar. PW-1, further stated that he along with other villagers including some of the witnesses apprehended the accused/appellant and thereafter tied him to a mango tree by the side of the road. 10. PW-12, Sri Manoj Narzary, the I.O. deposed that at 2 pm on 10.04.2012 (date of occurrence), one Jagabandhu Adhikary a teacher of Gandhi Ashram L.P. School informed Salakati Out Post about the incident. The said school is just nearby the place of occurrence as apparent from the sketch map. He stated that the accused was apprehended by the public. The dagger was seized as shown by the public. However, he did not record as to wherefrom the dagger was recovered. 11. PW-1, stated that Chandan Urao's house was about half km away from the place of occurrence so, as deposed by some of the witnesses that Sadhani Urao, the wife of Chandan Urao informed them about the incident is not at all disbelivable because she had to come half km through the road to the place of occurrence. It is quite natural that while coming to the place of occurrence, Sadhani Urao had shouted informing the passerby about the incident. 12. Ganesh Urao, PW-1 stated that Sadhani Urao was with Chandan Urao which cannot be disbelieved inasmuch as he had to come one kilometer from his house to the place of occurrence and on the other hand Sadhani Urao is supposed to come only half km from her house to the place of occurrence. It is quite natural that Sadhani Urao would reach the place of occurrence much earlier than the PW-1, Ganesh Urao. As such the PW-1, Ganesh Urao deposed in his cross-examination that he found Sadhani Urao along with the victim. The said deposition of PW-1 with regard to the presence of Sadhani Urao along with the victim cannot be a ground to disbelieve the evidence of PW-11 so far his presence at the time of the incident in the place of occurrence is concerned. Further, none examination of Sadhani Urao cannot be faulted so far the prosecution story is concerned, inasmuch as she was not at all an eye witness. 13. PW-2 deposed that he was informed about the incident at about 3 pm while he was at Salakathi at that point of time. Further, none examination of Sadhani Urao cannot be faulted so far the prosecution story is concerned, inasmuch as she was not at all an eye witness. 13. PW-2 deposed that he was informed about the incident at about 3 pm while he was at Salakathi at that point of time. He returned back, police came at about 4 pm where after he wrote the ejahar. This fact is supported by the PW-12. The I.O. received the information at about 2 pm and subsequent to that he visited the place of occurrence after which the FIR was written at about 4 pm by the PW-2. 14. PW-3 in his deposition stated that while he was returning with his buffaloes from other place he found that Sadhani Urao was shouting informing/drawing attention of the other people about the incident. He saw the victim lying on the road and blood was coming out from his abdomen. Thereafter the ambulance came. 15. PW-11, Timru Urao deposed that his house is situated about 1-1/2 km away from the house of the accused/appellant and the village of the accused person is separate. He knew the victim Chandan Urao, whose residence was at Saharpur Gandhi Ashram. Ganesh Urao is from the village of the accused/appellant. He deposed that two years back he visited in the morning at about 9 am to the village Gandhi Ashram. He visited the place of one Giga Urao to return back some money. While coming back from Giga's place after giving the money, he met Chandan Urao. Then the accused/appellant, Fagua Urao covering his body with a chadar was coming towards him and Chandan Urao. Having reached nearby, the accused/appellant took out a dagger and gave a blow to Chandan Urao in the stomach with the dagger, thereafter he chased with the dagger the PW-11. He had to run away. The accused/appellant left away, where after the PW-11 came running back towards Chandan Urao who fell on the ground. Blood oozed out from the stomach of Chandan Urao. PW-11 rushed to the nearby residence and brought a cloth and covered his injury to stop the bleeding. Then a teacher and a lady, who are from the Gandhi Ashram School came and asked him about the incident. The PW-11 told about the incident and the said teacher and the lady started dialing over their mobile phone randomly. PW-11 rushed to the nearby residence and brought a cloth and covered his injury to stop the bleeding. Then a teacher and a lady, who are from the Gandhi Ashram School came and asked him about the incident. The PW-11 told about the incident and the said teacher and the lady started dialing over their mobile phone randomly. Thereafter, an ambulance from the hospital came and Chandan Urao was taken to the hospital. The said PW-11, also accompanied Chandan Urao along with Ram Urao and Mirza Urao. He found Chandan Urao to be alive where after he returned back to his house. After two days he heard that Chandan Urao died and he visited to see the dead body of the victim at his residence. He proved the material exhibit-1 which is the dagger used by the accused/appellant. 16. In his cross-examination, he correctly described the location of the house within the vicinity of the place of occurrence. He also affirmed that there is a school nearby the place of occurrence which was open at the time of incident. The stab wound was near the umbilical point on the stomach. The Gaon Burah took him to PS after 15-20 days. It is also deposed that on the very same day after he was brought to the PS by the Gaon Burah, he deposed before the Court. 17. PW-10, Dr. Haridas Sarkar (Medical Officer) proved the post mortem report and as per the report there was an Incised stab wound 3" above umbilicus just midline, single edged cutting and wedge shaped margin clear. Penetrating wound found in the stomach. Size of wound 2-1/2 " x 1-1/2 ". As per the opinion, cause of death was due to shock and internal hemorrhage followed by incised stabbed injury of abdomen which is anti mortem in nature. Thus, the incident and the act of stabbing was proved by the prosecution. The statement of PW-11 under Section 164 Cr.P.C., 1973 also states that the accused/appellant caused the dagger wound on the person of the victim in his presence. 18. With respect to proof of the motive by the prosecution, as submitted by Ms. Sharma, of the accused appellant in dealing the dagger blow, this Court holds that prosecution need not prove the motive. 18. With respect to proof of the motive by the prosecution, as submitted by Ms. Sharma, of the accused appellant in dealing the dagger blow, this Court holds that prosecution need not prove the motive. In State of Haryana v. Sher Singh reported in AIR 1981 SC 1021 , Hon'ble Apex Court held as follows: "6......................."the prosecution is not bound to prove the motive of any offence in a criminal case, inasmuch as the motive is known only to the perpetrator of the crime and may not be known to others. If the motive is proved by prosecution, the Court has to consider it and see whether it is adequate." 19. In the present case in hand, the prosecution has not tried to prove the motive of the accused/appellant in causing such injury, so the burden lies on the defence to show if there was any motive on the part of the accused/appellant behind the said injury caused to the victim. But from the statement made under Section 313 Cr.P.C., 1973 the case of the accused/appellant is total denial and he declined to cite any witnesses. Accordingly, the submission of Ms. Sharma cannot be considered. 20. Further the submission of none proving of the injury by accused on PW-1, Ganesh Urao has some force. The learned Sessions Judge convicted the accused/appellant for two years rigorous imprisonment against the charge under Section 324 IPC. But on record, there is no proof as to any such hurt caused by the dagger by the accused/appellant on the chest of the PW-1, Ganesh Urao. There is no evidence by the Medical Officer nor any certificate to that effect. It is the oral evidence of the witnesses that the PW-1 was injured on his chest with a dagger by the accused/appellant. Whether the said injury was caused by the dagger could not be ascertained without any Medical report. Accordingly, the finding and conviction of the learned Sessions Judge under Section 324 IPC cannot be upheld, rather the same is set aside. 21. The submission that the PW-11, the eye witness was silent for 15/20 days and there after only he stated before the police that he saw the accused/appellant caused the dagger blow on the stomach of the victim is disbelivable, cannot be accepted. The fact that the said PW-11 had witnessed the incident remained un-shattered while facing the cross-examination. 21. The submission that the PW-11, the eye witness was silent for 15/20 days and there after only he stated before the police that he saw the accused/appellant caused the dagger blow on the stomach of the victim is disbelivable, cannot be accepted. The fact that the said PW-11 had witnessed the incident remained un-shattered while facing the cross-examination. From the evidence of PW-11 and the other evidence of the witnesses it can be concluded that the occurrence of the incident was informed to the police on the day itself. If there was any underhand plan to implicate the accused/appellant falsely, then at least some time lag would have been there while informing the police. Moreover, in order to disbelieve the deposition of PW-11, the defence side failed to bring any material piece of evidence before the court like animosity between PW-11 and the accused/appellant. The evidence of PW-11 supports the act of natural behaviors of a normal human being having seen such a ghastly incident. Merely because he did not raise any hue and cry immediately after the incident, cannot be a factor to disbelieve his version. 22. This Court, accordingly do not find any infirmities in the evidence of PW-11 and reasons given by the learned Sessions Judge is sufficient enough to prove the prosecution case. 23. From the materials on record it is seen that only a single dagger blow was given to the victim, Chandan Urao which shows that an intention to kill on the part of the accused/appellant was missing but it was well within the knowledge of the accused/appellant that death would be a likely result inasmuch as it is the said dagger blow which caused the death of Chandan Urao as per the post mortem report. Thus, the learned Sessions judge has rightly held that the offence committed by the accused/appellant falls under Section 304 Part-II IPC. But aforesaid, this Court do not find any convincing materials for convicting the accused/appellant under Section 324 IPC for causing voluntarily hurt on PW-1, Ganesh Urao. Accordingly, the same is set aside. 24. The appeal is partly allowed by setting aside the conviction under Section 324 IPC for two years on the appellant but the conviction and sentence under Section 304 Part-II IPC to suffer rigorous imprisonment for ten years and fine of Rs. 10,000/- in default, rigorous imprisonment for six months is upheld. 25. Accordingly, the same is set aside. 24. The appeal is partly allowed by setting aside the conviction under Section 324 IPC for two years on the appellant but the conviction and sentence under Section 304 Part-II IPC to suffer rigorous imprisonment for ten years and fine of Rs. 10,000/- in default, rigorous imprisonment for six months is upheld. 25. Court appreciates the assistance rendered by the learned Amicus Curiae in disposing of the appeal and accordingly an amount of Rs. 7500/-(Rupees seven thousand five hundred) only be paid to her as the professional fees from the Legal Services Authority. 26. This appeal is accordingly disposed of. 27. Send back the LCR.