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2018 DIGILAW 1056 (GAU)

JATIN MALLIK v. STATE OF ASSAM

2018-07-19

NELSON SAILO, UJJAL BHUYAN

body2018
JUDGMENT & ORDER : NELSON SAILO, J. 1. Heard Mr. Bhaskar Baruah, the learned Amicus Curiae for the appellant and Ms Bornali Bhuyan, the learned Additional Public Prosecutor, Assam. 2. This is an appeal directed against the Judgment & Order dated 24.06.2014, passed by the learned Additional Sessions Judge-II, Sonitpur, Tezpur in Session Case No. 47/2014 convicting the accused/appellant under Section 302 of the Indian Penal Code (IPC) and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 3,000/-with a default clause. 3. The case of the prosecution is that an FIR was lodged on 27.01.2014 by one Sh. Pulin Koch to the effect that on 26.01.2014 at around 10:00 o’clock at night following a simple quarrel, Sh. Jatin Maulik, (the appellant herein) hacked Sh. Jogendra Sharma to death. That Sh. Jogendra Sharma was a person from Bihari Community, lived for about 12 years on a plot of land under Parbatia Panchayat, which was about half of a kilometer away from his house by erecting a temporary shed. Sh. Jogendra Sharma and Sh. Jatin Maulik lived on his plot of land with his permission. 4. Upon filing of the FIR, Tezpur P.S. Case No. 107/2014 under Section 302 IPC was registered after G.D. Entry No. 1248 dated 27.01.2014 was made. The investigation was taken up by Sh. Lakhi Kalita, a Sub-Inspector of Police posted in Kacharigaon Outpost. During the investigation, the appellant was arrested and thereafter, a charge sheet was filed. Upon filing of the charge sheet, charge was framed under Section 302 IPC on 21.03.2014 against the appellant and to which, he pleaded not guilty and claim to stand for trial. 5. During the trial, the prosecution examined 15 prosecution witnesses. Upon completion of the examination of the prosecution witnesses, the appellant was examined by the Court under Section 313 of the Cr.P.C. thereafter, the learned Trial Court vide its Judgment & Order dated 24.06.2014 convicted and sentenced the appellant as mentioned in the foregoing paragraphs. 6. Appearing for the appellant, the learned Amicus Curiae Mr Bhaskar Baruah submits that the evidence against the appellant is only circumstantial since there are no eyewitnesses to the alleged crime. 6. Appearing for the appellant, the learned Amicus Curiae Mr Bhaskar Baruah submits that the evidence against the appellant is only circumstantial since there are no eyewitnesses to the alleged crime. The appellant also could give reasonable explanation in his examination under Section 313 of the Cr.P.C and therefore, under the given circumstances, the appellant has to be given the benefit of doubt and be acquitted from the charge. 7. Ms Bornali Bhuyan, the learned Additional Public Prosecutor, Assam appearing for the State on the other hand submits that the prosecution witnesses have clearly established the guilt of the appellant, inasmuch as, he was seen fleeing with a dao in his hand soon after the incident. The explanation given by the appellant on being examined under Section 313 Cr.P.C is most unbelievable and it is only an attempt by him to cover up his crime. Therefore, considering the post crime conduct of the appellant, there is no question of giving him the benefit of doubt. She further submits that as per Section 8 of the Evidence Act, 1872, any fact would be relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. She further refers to Section 27 of the same Act to contend that since the alleged weapon of crime i.e., the dao was recovered after the appellant led to its discovery, the discovery pursuant to the information received from the person accused of the offence would only be a proof of commission of the crime by him. 8. We have heard the submissions made by the learned counsels for the rival parties and have perused the materials available on record including the Lower Court Records. 9. From the evidence led by the prosecution through the prosecution witnesses, let us examine as to whether the impugned conviction and sentence of the appellant can be sustained. 9.1 PW-1, Sh. Tuntun Bora in his examination-in-chief deposed that he knew both the accused person as well as the deceased. On 26.01.2014 at around 10:45 PM at night, there was a commotion in the house of Sh. Jatin Maulik and the deceased Sh. Jogendra Sharma and that their house was on the same compound. On hearing the commotion and the sound of screaming coming from their house, he alongwith others went to their house. He saw a dao in the hands of Sh. Jatin Maulik and the deceased Sh. Jogendra Sharma and that their house was on the same compound. On hearing the commotion and the sound of screaming coming from their house, he alongwith others went to their house. He saw a dao in the hands of Sh. Jatin Maulik, as he was fleeing from the house. He then saw Sh. Jogendra Sharma lying near the bed and his neck was cut and he was about to die. They informed the police who then came to took Sh. Jogendra Sharma to the hospital in an ambulance. Later on, he came to know that Sh. Jogendra Sharma died. According to him Sh. Jogendra Sharma was a Carpenter and he was a very mild person. In his cross examination, he deposed that the house of Pulin Koch was about half a kilometer from his house and he was about 100 meters from the place of occurrence. He was watching TV when he heard the commotion and he could make out from the voices of the persons that it was the voice of Sh. Jiban Choudhury, Sh. Kusum Barua, Sh. Anil and others. He reached the place of occurrence within 2-3 minutes after he heard the commotion and he found Sh. Jiban Choudhury, Sh. Kusum Barua, Sh. Anil on the scene. 9.2 PW-2, Sh. Pranjal Kalita deposed that he knew both the appellant and the deceased who was a carpenter. On 26.01.2014 at about 10:30 PM, he received a phone call from his friend Sh. Paban Bora, who told him that some ‘utpat’ (fight) had taken place in the village and he asked him to inform the police. He informed the police and he went to the place of occurrence, where he saw the appellant fleeing with a dao. He saw the deceased lying near his bed with cut mark on his neck. He was not in a good condition and he could make out that he was dying. Police came and took the deceased in an ambulance to the hospital and later on, he came to learn that he expired. In his cross examination, he deposed that Sh. Paban did not tell him about the details of the incident. He told the police that there was a quarrel in Deuri gaon. 9.3 PW-3, Sh. Police came and took the deceased in an ambulance to the hospital and later on, he came to learn that he expired. In his cross examination, he deposed that Sh. Paban did not tell him about the details of the incident. He told the police that there was a quarrel in Deuri gaon. 9.3 PW-3, Sh. Dhruba Kalita in his examination-in-chief deposed that he knew both the appellant and the deceased, who were from the same village as his friend, Pranjal Kalita (PW2). That on 26.01.2014, he was in the house of Sh. Pranjal Kalita and they were watching TV. They came to learn that a villager had inflicted cut injury to another villager and therefore, he came out of the house alongwith Sh. Pranjal Kalita and went to the place of occurrence. He saw the appellant fleeing with a dao in his hand. They went into the compound of the appellant and saw that a person was lying in his bed in a critical condition. His neck was cut and he was shivering. Police came and evacuated the injured person in an ambulance. In his cross examination, he reiterated what he had stated in his examination-in-chief. 9.4 PW-4, Sh. Bapdhan Bora in his examination-in-chief also deposed that he knew both the appellant and the deceased. The incident occurred on 26.01.2014 at about 10:45 PM, he was in his house when he heard shouts and commotion coming from the house of the deceased. On hearing the same, he went to the house of the deceased and while doing so, he saw the appellant fleeing with a dao in his hand. When he went into the house, he saw the deceased lying in his bed in a critical condition and there was cut mark in his neck and injury mark on his head. Police arrived and evacuated him to the hospital in an ambulance. The deceased later succumbed to his injuries. PW-4 in his cross examination also reiterated what he stated in his examination-in-chief. 9.5 PW-5, Sh. Jiban Choudury in his examination-in-chief deposed that he knew both the appellant and the deceased. On 26.01.2014 at about 10:45 PM, he heard a cry for help and he came out of his house. However, he did not go into the compound of the deceased but asked as to what had happened. 9.5 PW-5, Sh. Jiban Choudury in his examination-in-chief deposed that he knew both the appellant and the deceased. On 26.01.2014 at about 10:45 PM, he heard a cry for help and he came out of his house. However, he did not go into the compound of the deceased but asked as to what had happened. As there was no response, he created a commotion by shouting and soon after, he saw the appellant fleeing towards the jungle with a daoin his hand. He then went to the place where the deceased was residing and saw him lying in his bed in a critically injured condition i.e. cut injury on his neck. Soon after, the police came to the spot. In his cross examination, he stated that he was not at the place occurrence when the incident happened but he reiterated that he saw the appellant fleeing the place of occurrence and he found the deceased in a critically injured condition. 9.6 PW-6, Sh. Anil Tanti in his examination-in-chief deposed that he knew both the appellant and the deceased. On 26.01.2014 at about 10:45 PM, he was about to go to sleep when he heard the scream of the deceased. On hearing the same, he came out of his house and proceeded towards the house of the deceased. He then saw the appellant fleeing with a dao in his hand. When he went into the house of the deceased, he saw him in a critically injured condition, with a cut in his neck and injury on his head. He was lying in his bed and his head was hanging towards a box lying near the bed. Police came and evacuated him to hospital in an ambulance. In his cross examination, he reiterated what he stated in his examination-in-chief. 9.7 PW-7, Sh. Pallabi Bora in her examination-in-chief also made a similar narration like PW-6. She also deposed that she saw the appellant coming out from the house of the deceased and fleeing with a dao in his hand. PW-7 also reiterated what she had deposed in her examination-in-chief. 9.8 PW-8, Sh. Kusum Bora like PW-7 had also a similar narration in her examination-in-chief. She deposed that she saw the appellant fleeing the house of the deceased but she did not mentioned about having seen a dao in the hands of the appellant while he was fleeing. PW-7 also reiterated what she had deposed in her examination-in-chief. 9.8 PW-8, Sh. Kusum Bora like PW-7 had also a similar narration in her examination-in-chief. She deposed that she saw the appellant fleeing the house of the deceased but she did not mentioned about having seen a dao in the hands of the appellant while he was fleeing. She also affirmed what she had deposed in her examination-in-chief when she was cross examined. 9.9 PW-9 and PW-10 also had similar narration with that of the deposition of PW-7 and 8. 9.10 PW-11, Sh. Anusuya Sharma in her examination-in-chief deposed that on 27.01.2014 at 11:00 AM, she was called to K.C. hospital wherein, she conducted inquest on the dead body of Sh. Jogendra Sharma. On being identified by Constable Nripendra Khatliari, he signed the inquest report and to ascertain the cause of the death, the dead body was sent for post mortem examination. In his cross examination, he stated that he found cut injury mark on the right forehead and chest but he had not explained the kind of injury he saw on the chest of the deceased. 9.11 PW-12, Dr. Tilak Bhattacharjee in his examination-in-chief deposed that on 27.01.2014, he was on duty at Kanaklata Civil hospital and he performed the post mortem on the death body of Sh. Jogender Sharma upon examining the dead body, he found the following injury:- “(1) Sharp Injury, right side of the forehead in sajital plane obliquely extending behind the hairline, slicing the frontal bone (right side) of 7 cm x 1.5. cm. (2) Sharp cut injury on left side of the face longitudinally of 7 cm x 1.5 cm cutting ramus of left mandible, extending to neck. (3) Sharp cut injury on left side of the neck, extending from left mastoid to central part of the neck below the thyroid cartilage obliquely of 10 cm x 2 cm cutting neck muscle and great vessel of neck (left), also cutting the edge of the left pinna. (4) Cut injury on right index finger on distal phalaynx, lateral side of 1 cm x ¼ cm x ¼ cm. (5) lacerated injury over dorsum of the right hand of 3 cm x ¼ cm x ¼ cm. (6) Abrasion of right side of the chest wall below nipple near midline of 5 cm x 1 cm size. (4) Cut injury on right index finger on distal phalaynx, lateral side of 1 cm x ¼ cm x ¼ cm. (5) lacerated injury over dorsum of the right hand of 3 cm x ¼ cm x ¼ cm. (6) Abrasion of right side of the chest wall below nipple near midline of 5 cm x 1 cm size. All the injuries were anti-mortem in nature.” In his opinion the cause of death was due to Haemorrhagic shock as a result of injuries sustained. 9.12 PW-13, Sh. Pulin Koch in his examination-in-chief deposed that he knew both the appellant and the deceased and that they were staying in the plot of land belonging to his father at Deuri gaon. At around 10:30 PM on 26.01.2014, he got the information that Sh. Jogendra Sharma had been murdered by the appellant and thereafter, he went to the spot and saw Sh. Jogendra Sharma lying dead. Later, he went to the police station and lodged an FIR. In his cross examination, he stated that when he reached the place of the occurrence, the police were already there and that he has no personal knowledge about the occurrence. 9.13 PW-14, Sh. Kushal Malik in his examination-in-chief deposed that he knew the appellant and that he was his younger brother. The deceased was a Mistri/Carpenter and he recognized the dao that was produced in Court to be the one seized by the police. In his cross examination, he stated that he cannot say to whom the dao belonged to and from where the police got it. Seizure of the same was done in police station. 9.14 PW-15, Lakhi Kalita in his examination-in-chief deposed that on 26.01.2014, he was posted at Kacharigaon Out Post, wherein he got a telephonic information from one Sh. Pranjal Kalita that one person had been cut/slain in Deurigaon. On receiving such information, he made G.D. Entry No. 485 on 26.01.2014 at 11:00 PM. Thereafter, he alongwith other personnel proceeded to the place of occurrence and found a person lying with cut mark on his neck. He was told that his name was Sh. Jogendra Sharma and he immediately called for assistance and requisitioned a vehicle to take the injured to the hospital. Thereafter, he alongwith other personnel proceeded to the place of occurrence and found a person lying with cut mark on his neck. He was told that his name was Sh. Jogendra Sharma and he immediately called for assistance and requisitioned a vehicle to take the injured to the hospital. After sending the injured to Kanaklata Civil Hospital, he recorded the statements of the witnesses including Pranjal Kalita, Dhurba Kalita, Tuntun Bora, Babdhan Bora, Jiban Choudhury, Anil Tanti, Smt. Kusum Bora, Smt Bhabani Bora, Smt Anita Tanti, Smt Pallabi Kusum Bora, he prepared a sketch map of the place of occurrence and searched for the accused. The witnesses informing him that the accused had fled with a daobut as he could not find the accused, he returned back to the Police Out Post. The accused after sometime appeared in the police station and confessed that he had slain Sh. Jogendra Sharma and that he had kept the dao with which he committed the crime outside the police outpost. Thereafter, he updated the GD Entry Book by recording that the appellant Sh. Jatin Maulik presented himself at the Police Outpost with a dao. He then arrested the accused person/appellant and seized the dao after preparing a seizure list. 9.15 PW-15 exhibited the G.D. entries, his signature and the seizure list. He also deposed that on completion of the investigation, he filed a charge sheet against the appellant under Section 302 IPC. In his cross examination, he reiterated what he had stated during his examination-in-chief. 10. The appellant in his examination under Section 313 of the Cr.P.C. denied having killed Sh. Jogender Sharma. His explanation was that he too, heard loud voices while he was sleeping and he went to the place of occurrence to find out the cause. He saw Sh. Jogender Sharma with blood on the body and he did not know who killed him. Many people had gathered and he thought that he should inform the police since no one was taking the initiative. As the Police Station was nearer through the field and since he was reared to go through the field, he took the dao alongwith him which he found in the compound. On reaching the Police Station, he informed the police that someone had killed Sh. Jogender Sharma and there was a blood on his body. Later, Sh. Tuntun Bora and Sh. On reaching the Police Station, he informed the police that someone had killed Sh. Jogender Sharma and there was a blood on his body. Later, Sh. Tuntun Bora and Sh. Bapdhan Bora came to the Police Station and informed the police that since they saw him with a dao, they suspected him to be the one who had injured Sh. Jogendra Sharma and they suspected me. 11. From the deposition of the prosecution witnesses, what can be noticed is that PW-1 to PW-10 in their examination-in-chief have all deposed that they saw the appellant flee from the house of Sh. Jogendra Sharma the deceased, on the night of 26.01.2014 at around 10:45 PM with a dao in his hand. Their versions are neither falsified nor shaken during the cross examination. The post mortem examination report and the examination of the Doctor, who conducted the post mortem, also corroborates with the evidence led by PW Nos. 1 to 10. With regard to the explanation given by the appellant in his examination under section 313 of the Cr.P.C, it may be noted that it is a well settled law that the principle behind recording of statement under section 313 of the Cr.P.C is that the accused must be given an opportunity to explain the materials against him. It is a rule of fair play and natural justice. His statements cannot be made a basis for his conviction but at the same time, it can be used for appreciating the evidence led by the prosecution. The provision is mainly to benefit the accused and as a corollary, to benefit the court in reaching the final conclusion. In the instant case, the contention of the appellant in his examination under Section 313 of the CrPC that he took the initiative to inform the police by running across the field with a dao in his hand to buttress his innocence is more than far-fetched and most unbelievable. There was no reason for him to run away with a dao in his hand to the police station instead of attending to the grievously injured Sh. Jogender Sharma if he had not committed the crime as claimed by him. Therefore, the explanation given by the appellant during his examination under Section 313 of the Cr.P.C offers no ground to vitiate the evidence led by the prosecution. Jogender Sharma if he had not committed the crime as claimed by him. Therefore, the explanation given by the appellant during his examination under Section 313 of the Cr.P.C offers no ground to vitiate the evidence led by the prosecution. Lastly, the discovery of the weapon used for the crime as pointed out by the learned Additional Public Prosecutor in the given circumstance also adds up to the case of the prosecution to implicate the appellant to the crime as well. 12. After having carefully considered the case in its entirety, we do not find any merit in the appeal and therefore, we are not inclined to interfere with the view taken by the learned Trial Court in convicting and sentencing the appellant. 13. Accordingly, the appeal stands dismissed. 14. Registry to send back the lower court records immediately. 15. In appreciation of the valuable assistance rendered by Mr. Bhaskar Baruah, learned Amicus Curiae, the Assam State Legal Services Authority shall pay him fee as per the Schedule.