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2018 DIGILAW 1068 (GAU)

NIKUDIN TIRU v. STATE OF ASSAM

2018-07-20

HITESH KUMAR SARMA, MIR ALFAZ ALI

body2018
JUDGMENT : 1. This appeal, under Section 374 of the Code of Criminal Procedure (Cr.PC), from Jail challenges the judgment and order, dated 06.05.2015, passed by the learned Additional Sessions Judge (FTC), Lakhimpur, North Lakhimpur, in Sessions Case No. 162(NL)/2013, whereby the accused-appellant Sri Nikudin Tiru stands convicted for the offence under Section 302 of the Indian Penal Code (IPC) and has been sentenced to undergo rigorous imprisonment for life with payment of fine of Rs. 5,000/-in default, to suffer rigorous imprisonment for 3 (three) months. 2. The facts may be briefly stated as follows:- On 06.03.2013, one Smt. Sumi Bhumij lodged a written FIR with the Dolohat Police Out Post alleging that while her husband was cutting bamboo, the accused-appellant struck an axe blow on the neck on her deceased husband and having severed the head from the body, surrendered before the police station. The informant stated that there is a pending civil dispute between the accused-appellant and the deceased. On receipt of the FIR through the said Police Out Post, Laluk Police Station registered Laluk P.S. Case No. 44/2013 under Section 302 of the IPC and investigated the case. On completion of the investigation, a charge-sheet was laid against the accused-appellant for offence under Section 302 of the IPC. In due course, the trial of case commenced in the court of Additional Sessions Judge, Lakhimpur, North Lakhimpur. 3. In the course of trial, charge under Section 302 of the IPC was framed against the accused-appellant to which he pleaded guilty. The plea of accused-appellant was recorded, but, instead of convicting the accused-appellant, on his such plea, the case was set for trial. 4. Prosecution examined 6 (six) witnesses including the Investigating Police Officer and the Medical Officer. At the closure of prosecution evidence all the incriminating evidence were put to the accused-appellant under Section 313 of the Cr.PC where the accused-appellant substantially admitted the accusation and the evidence tendered against him. The defence declined to lead any evidence. 5. By the impugned judgment, the accused-appellant was convicted and sentenced as aforesaid. 6. We have also gone through the records of the learned trial court, including the evidence and the impugned judgment. 7. We have heard Mr. S Islam, learned Amicus Curiae, appearing for the accused-appellant and Mr. PP Baruah, learned Public Prosecutor, Assam. 8. 5. By the impugned judgment, the accused-appellant was convicted and sentenced as aforesaid. 6. We have also gone through the records of the learned trial court, including the evidence and the impugned judgment. 7. We have heard Mr. S Islam, learned Amicus Curiae, appearing for the accused-appellant and Mr. PP Baruah, learned Public Prosecutor, Assam. 8. PW1, Sri Pradip Minz, deposed that on the date of occurrence he was about to leave for Gohpur to attend a wedding ceremony and before that he had gone to Dolahat Police Out Post where he saw the accused-appellant carrying an axe in his left hand and one human head in his right hand. The accused-appellant had surrendered before the Dolahat Police Out Post. Subsequently, police recovered the dead body. In cross-examination, however, he admitted that he does not know who committed the murder. 9. PW2, Sri Dambarudhar Borah, was serving as Police Constable at Dolahat Police Out Post and he deposed that on the date of occurrence, on 06.03.2013, while he was in the Police Out Post, he heard hue and cry outside the Police Out Post. When he came outside he saw the accused-appellant carrying a human head and an axe. He also deposed that accused-appellant confessed that he had killed Chalu Soy @ Lakhan Roy with an axe. Thereafter, Sri Arun Chandra Deka, the I/C of Dolahat Police Out Post asked the accused-appellant to put the severed head in the gunny bag and to keep the axe aside. The accused-appellant did accordingly in compliance with the said direction. The defence declined to cross-examine this PW2. 10. PW3, Sri Lakhon Deuri, deposed that on the date of occurrence he was serving as Police Constable at Dolahat Police Out Post. The deposition of this witness is similar to that of PW2 and hence not reproduced to avoid repetition. This PW3 was not subjected to cross-examination by the defence. 11. PW4, Smt Suni Bhumiz, the widow of the deceased, deposed that when her husband, the deceased, had gone to cut bamboo, the accused-appellant, at first, struck him on his legs with an axe and when her husband stooped, the accused-appellant struck on his neck. PW4 also deposed that when she saw the accused-appellant drinking the blood oozing out she fled from the scene. She also deposed that at the time of the incident she was with her husband. PW4 also deposed that when she saw the accused-appellant drinking the blood oozing out she fled from the scene. She also deposed that at the time of the incident she was with her husband. In cross-examination, she denied the suggestion that she had not stated that the accused-appellant had first cut the leg of the deceased. 12. PW5, Dr Rajib Dutta, had conducted the post mortem examination of the deceased. Since the death is admittedly homicidal in nature not much needs to be discussed on the post mortem report. The cross-examination of PW5 too was declined. 13. PW6, Sri Arun Chandra Deka, is the Investigating Officer of this case. He deposed that on 06.03.2013, while he was posted as Attached Officer in Laluk Police Station, he was informed by ASI Satiram Gayari of Dolohat Police Out Post over phone that one person carrying a severed head and an axe has appeared in the Out Post. On reaching Dolohat Police Out Post along with Officer-in-Charge of Laluk Police Station, he noticed that severed human head, an axe and a catapult were kept there. A seizure list was accordingly prepared, vide Ext.-1, wherein Ext.-1(3) is the signature of the PW6. The axe was used in severing the head of the accused-appellant. The axe was stained with blood. On being shown by the accused-appellant, PW6 also seized the kopi dao, Ext.-4, which was stained with little blood and used by the accused-appellant. In cross-examination PW6 was only suggested that he had not investigated the case properly but the suggestion stood denied. 14. Bearing in mind the evidence tendered on record as well as the admissions made by the accused-appellant it appears that this is a case wherein prosecution had adduced both direct as well as circumstantial evidence. 15. For the sake of abundant precaution even if the evidence of PWs 1, 2 and 3 are kept aside as being circumstantial in nature, the evidence of PW4, Smt Suni Bhumiz, the widow of deceased, is not only direct but sans any substantial cross-examination and her evidence also remains umimpeached on materials aspects. She is an eye witness to the entire incident and had deposed about the incident in a clinical manner. The testimony of the PW4 coupled with the admissions made by the accused-appellant is sufficient enough to sustain an order of conviction against the appellant. 16. She is an eye witness to the entire incident and had deposed about the incident in a clinical manner. The testimony of the PW4 coupled with the admissions made by the accused-appellant is sufficient enough to sustain an order of conviction against the appellant. 16. The evidence of PW4 is further re-enforced by the testimony of PWs 1, 2 and 3, who have deposed to incriminating circumstances about the accused-appellant being found in possession of the severed head of the deceased and the axe with which the fatal injuries were caused. 17. This apart, during the examination of the accused-appellant, under Section 313 of the Cr.PC, he admitted to the specific question that he had killed the deceased with an axe. He also explained that deceased had taken poultry from him on the pretext of curing the evil spirits, but, since he could cure the evil spirit prevailing on the accused-appellant he had hacked the deceased to death. The question is whether such specific admission can be taken into account to aid the prosecution case. 18. In the case of State of Maharashtra–vs-Sukhdev Singh, reported in (1992) 3 SCC 700 , the Hon’ble Supreme Court, while dealing with admissions, made during examination under Section 313 of the Cr.PC, held that since no oath is administered to the appellant, the statements made by the appellant will not be evidence strictsensu. That is why sub-section (3) says that the appellant shall not render himself liable to punishment if he gives false answers. Then comes sub-section (4) which provides that the answers given by the appellant may be taken into consideration in such inquiry into, or trial for, any other offence which such answers may tend to show he has committed. 19. Thus, as held in, Sukhdev Singh,(supra), the answer given by the appellant in response to his examination under Section 313 can be taken into consideration in such inquiry or trial. 20. Again, in Narain Singh–vs-State of Punjab, reported in (1964)1 Cri.LJ 730, the Hon’ble Supreme Court held that if the appellant confesses to the commission of the offence charged against him the court may, relying upon that confession, proceed to convict him. 21. 20. Again, in Narain Singh–vs-State of Punjab, reported in (1964)1 Cri.LJ 730, the Hon’ble Supreme Court held that if the appellant confesses to the commission of the offence charged against him the court may, relying upon that confession, proceed to convict him. 21. In view of the law discussed above, and also in view of the evidence tendered on record, the inescapable conclusion derived is the guilt of the accused-appellant in the commission of offence of murder falling within the definition of Section 300, firstly. 22. Therefore, in our considered opinion, there appears no reason for any interference with the order of conviction recorded by the learned trial Judge. On the other hand, no interference is also called for in respect of the substantive punishment imposed upon the accused-appellant, the same being the statutorily prescribed minimum punishment for an offence under Section 302 of the IPC. 23. In the result the appeal stands dismissed. 24. Send a copy of this judgment to the Superintendent, District Jail, North Lakhimpur. 25. This Court records its appreciation for the assistance rendered by learned Amicus Curiae, Mr. S Islam. Learned Amicus Curiae be paid an amount of Rs. 7,000/-, as remuneration. 26. Send down the LCR alongwith a copy of the judgment.