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2018 DIGILAW 1532 (GAU)

SANJOY TUTI v. STATE OF ASSAM

2018-10-11

M.R.PATHAK, PRASANTA KUMAR DEKA

body2018
JUDGMENT : M.R. PATHAK, J. 1. This appeal from jail has been preferred by the accused Sri Sanjoy Tuti against the judgment of conviction and order of sentence dated 07.04.2016 passed by learned Additional Sessions Judge No.2, Nagaon, Assam in Sessions T-(1) Case No. 99 of 2014, arising out of G.R. Case No. 554/2014, corresponding to Samaguri Police Station Case No. 204 of 2014 by which the appellant/accused has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for Life with a fine of Rs. 2,000/-only, in default to undergo 3 (three) months further Simple Imprisonment. 2. The prosecution case, as it emerges from the First Information Report dated 28.07.2014 (Exhibit-2) lodged by one Machi Tuti (PW.1) before the Officer-in-Charge of Salna Police Out Post is that around 07:00 p.m. on 27.07.2014 following a domestic quarrel over money-related matter the accused Sanjay Tuti killed his brother Markas Tuti by hacking him with a dao and that the deceased is the nephew of the informant. 3. On receipt of the said FIR, Salana PP GDE No. 379 dated 27.07.2014 was made and it was forwarded to the Officer-in-Charge of Samaguri Police Station wherein Samaguri PS Case No. 204/2014 under Section 302 IPC corresponding to G.R. Case No. 554/2014 was registered against the accused/ appellant. 4. During investigation, police on visiting the place of occurrence, drawn its sketch map (Exhibit- 4, 5 and 6), conducted the inquest on the dead body and prepared the Inquest Report, sent the said dead body for post mortem examination, seized the long dao vide Seizure Memo (Exhibit-1) which was about 18 inches long with 8 inches handle, arrested the accused appellant on 28.07.2014, recorded the statements of the persons acquainted with the facts of the case under Section 161 Cr.P.C., collected the Post Mortem Report of the deceased Markas Tuti (Exhibit-3) and on completion of the investigation, finding prima facie material, police filed the Charge-Sheet vide No. 173/2014 dated 30.09.2014 under Section 302 IPC against the accused/appellant (Exhibit-7). The case being exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Kaliabor, Nagaon on 28.10.2014 committed the said PR Case No. 438/2014 [G.R. Case 554/2014] to the Court of learned Sessions Judge, Nagaon, wherein it was registered as Sessions (T-1) Case No. 92 (N) of 2014. The case being exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Kaliabor, Nagaon on 28.10.2014 committed the said PR Case No. 438/2014 [G.R. Case 554/2014] to the Court of learned Sessions Judge, Nagaon, wherein it was registered as Sessions (T-1) Case No. 92 (N) of 2014. On 21.11.2014 learned Sessions Judge transferred the said case to the learned Additional Sessions Judge No. 2, Nagaon for disposal. 5. On 21.11.2014 itself learned Additional Sessions Judge No. 2, Nagaon framed charge under Sections 302 IPC against the accused/appellant for alleged killing of Markas Tuti and the charge was read over and explained to him to which the accused/appellant pleaded not guilty and claimed to be tried. As such the trial commenced. 6. In order to bring home the charges, against the accused/appellant, the prosecution, examined 9 (nine) witnesses on its behalf. The defence only cross-examined the prosecution witnesses, but did not adduce any evidence. The statement of the accused/appellant under Section 313 Cr.P.C. was recorded after closure of evidence of prosecution witnesses, where he denied killing of his brother Markas Tuti stating that acquisition brought against him are false and he denied to adduce any evidence. 7. The learned Additional Sessions Judge No. 2, Nagaon upon appreciation of the evidence adduced by the prosecution, recorded the impugned judgment of conviction and sentence as aforesaid and hence, the present appeal. 8. We have heard Mr. S K Ghosh, learned Amicus Curiae, for the accused/appellant and Mr. M Phukan, learned Additional Public Prosecutor, Assam representing the State. 9. Mr. Ghosh, learned Amicus Curiae for the appellant stated that though the prosecution tried to establish the case by way of adducing evidence of alleged eye witness to incident, but it failed to prove the intention/motive of killing of the victim by the accused person, who is his own brother as there was no enmity between them. He also stated that the prosecution failed to establish the guilt of the accused beyond reasonable doubt and therefore, the impugned conviction and sentence, being bad in law should be set aside and quashed. 10. On the other hand Mr. Phukan, learned Additional Public Prosecutor, supporting the judgment and order of conviction and the sentence, submitted that prosecution has placed sufficient materials to prove the guilt of the accused. 11. 10. On the other hand Mr. Phukan, learned Additional Public Prosecutor, supporting the judgment and order of conviction and the sentence, submitted that prosecution has placed sufficient materials to prove the guilt of the accused. 11. We have considered the submissions advanced by the learned counsels appearing for the parties and also perused the evidence adduced by the prosecution before the learned Trial Judge, apart from the judgment of conviction recorded by the learned Trial Court. 12. In order to appreciate the arguments, advanced by the learned counsels appearing for both the parties and to examine the correctness of the impugned Judgment and Order of conviction, it will be appropriate to briefly scrutinize the evidence on record. 13. Pw.1, Machi Tuti, informant in his evidence-in-chief stated that both the accused and the deceased are his nephews and though he did not see the incident and on hearing hue and cry around 8:00 pm on the date of the incident, he came out of his house and learnt that the accused assaulted Markas, the deceased who was taken to the hospital. He stated that on reaching hospital, he saw injury on the head of the deceased. The said PW-1 was later declared as hostile witness. 14. Pw.2, Joseph Tunti in his examination-in-chief stated that the informant is his uncle and the accused is his brother, son of the elder brother of his father. The deceased is also son of his father's elder brother and that the accused and deceased are own brothers. He stated that he went to the market in the evening around 6:30 PM and returned home around 8:00 PM and heard hue and cry. On enquiry, he came to know that a fight had taken place and on reaching the place of the incident, he found Markas lying dead with cut injury in his chest and head. Then, he along with his younger brother Phansis Tuti took said Markas to the hospital on a push cart and that said Markas died on the day of the occurrence itself. This witness was also declared hostile by the prosecution. 15. Then, he along with his younger brother Phansis Tuti took said Markas to the hospital on a push cart and that said Markas died on the day of the occurrence itself. This witness was also declared hostile by the prosecution. 15. Pw.3, Sonu Deep in his evidence stated that both the accused and the deceased are brothers and the informant PW.1 Machi Tuti informed him about the incident around 7:00 PM on the day of the incident and when he enquired, wife of the deceased told him that the accused had cut the deceased with dao and accordingly, it was informed to the police. He also stated that police came and inspected the place of occurrence and then they went to the house of the accused. He also stated that the villagers, informant and he himself accompanied the police and during the search, police found the accused in his house hiding under a bed and they took him along. The said PW.3 also stated that the accused himself showed and produced the dao by which he caused injury to the deceased and the same was recovered under a culvert which was about 100 feet away from the house of the accused and it was seized in front of him and Others which was available in the Court room. He also stated that the said dao was recovered at night and the blade was found broken and it was stained with blood. During his cross-examination, PW.3 stated that though he did not witness the incident, it is PW.1 who informed him about the same and reiterated that the wife of the deceased told him that it is the accused who killed her husband by hacking with dao, which the police recovered under the culvert. 16. Pw.4, Bhusan Tanti, though not an eye witness to the incident, he deposed that when police asked the accused about the incident, the accused of his own showed the place where he kept the dao in their presence and in presence of police and accordingly, the dao was recovered in their presence under a culvert about 100 feet away from the house of the accused. During his cross-examination, PW.4 deposed that the deceased was taken on a push cart to the hospital. 17. During his cross-examination, PW.4 deposed that the deceased was taken on a push cart to the hospital. 17. Pw.5, Padma Tuti, wife of the deceased in her evidence, deposed that at the time of the incident, in the evening she was cooking at her home and after returning from market the deceased was at home itself. She stated that the accused then came with a dao in his hand and attacked her husband and on hearing his loud cry, she came outside and saw the accused Sanjay fleeing away from the place, after hacking her husband at his head and chest and seeing it she started screaming. She also stated that hearing her cry, the younger brother of the deceased, Joseph Tuti came out and later, many people gathered in the place of incident and then the deceased was taken to the hospital on a push cart. She further deposed that at the time of the incident, her mother-in-law i.e. the mother of the accused was staying with them, who received old age pension and also received a cheque of Rs. 30,000/-. She stated that the accused first looked for his mother but, she fled from the said place. She deposed that it is her husband who asked the accused not to do any obnoxious act with their mother and at that stage the accused dealt dao blow on her husband and coming out of the house, she saw the accused giving dao blow on her husband. During her cross-examination, she stated that there was no dispute between her husband and the accused and they were in good terms. She stated in her cross that on the date of the incident, the accused came to their house looking for her mother-in-law, i.e. mother of the deceased and when her husband prevented the accused from doing untoward act, the accused became angry. She also stated that probably the accused was of the belief that her mother-in-law gave money to her husband, i.e. the deceased. She reiterated that she saw the accused giving dao blow on her husband. During her cross-examination, she also stated that at the time of death of her husband, her son was about 1 or 2 years old and that she is presently residing at her paternal home. 18. She reiterated that she saw the accused giving dao blow on her husband. During her cross-examination, she also stated that at the time of death of her husband, her son was about 1 or 2 years old and that she is presently residing at her paternal home. 18. Pw.6, Urmila Konwar stated that the deceased was her son-in-law and at the time of the incident, she was at the house of the deceased. She also stated that mother of the deceased received old age pension, which was deposited in bank. She also stated that the mother of the deceased gave a cheque to him so as to bring some cash amount and the deceased did not bring the said money and deposited the same in the bank. With regard to the said money of their mother, a quarrel had taken place and in her presence, where the accused gave dao blow to her son-in-law, the deceased in his head, abdomen as well as in his private parts. She also deposed that at the time of incident, deceased's wife and mother were present. During her cross-examination, she stated that the accused use to come to the house of her son-in-law, as he use to stay with his mother, Deugi Tuti, who is her biyoni. She deposed that like other days, on the day of the incident, the accused came to the house of the deceased and secretly brought the dao with him which she did not notice initially. But, she saw it when he took out the same and gave dao blow on the head of the deceased, due to which the deceased fell down on the ground. She further deposed that the accused gave two dao blows on the person of the deceased and the same was witnessed by her daughter, Padma, wife of the deceased (PW.5), she herself and the wife of the accused, Jayanti from the verandah of the house. 19. Pw-7, Dr. Jiauddin Ahmed is the autopsy doctor, who conducted the post mortem on the person of the deceased. During his evidence, he stated that at that time he was serving at BP Civil Hospital at Nagaon and found the following injuries on the person of the deceased : (i). A deep cut injury over the lower part of the right side of chest. Size 4' x 1 x 2' (length breadth and depth). During his evidence, he stated that at that time he was serving at BP Civil Hospital at Nagaon and found the following injuries on the person of the deceased : (i). A deep cut injury over the lower part of the right side of chest. Size 4' x 1 x 2' (length breadth and depth). Margin of wounds smooth and regular. (ii) A cut injury over the forehead. Longitudinally size 2 x ' x " (length breadth and depth) Margin of wounds smooth and regular. (iii) There is a cut injury superior surface of the level size 2' x ' x 1' (LBD). Margin of the wound is smooth. Complete cut injury Ninth Cartiledge of the chest. Complete cut injury 8th and 9th rib at the middle of the right side. (iv) There is collection of blood inside peritoneal cavity of the abdomen. Other's parts are healthy. He also stated that all the injuries were ante mortem in nature and he opined that the cause of the death of the deceased was due to shock and haemorrhage from bleeding of lower part of his chest and forehead caused by sharp heavy weapon. In his cross-examination, he stated that in the post mortem report of the deceased, he did not record the name of the father of the deceased and his address. But, recorded the name of the person in writing who identified the deceased. 20. Pw.8, Krishna Nayak is a hearsay witness to the incident. He stated that everyone in the village was aware that it is the accused who killed his own brother Markas with dao and that the incident took place in the evening. 21. Pw.9, Someswar Kalita, the Investigating Officer of the case in his evidence deposed that the PW.1 informed about the incident pursuant to which GD Entry No.379 dated 27.07.2014 was made around 9:15 PM at Salana out post and PW.1 stated that the incident had occurred around 7:00 PM on that day. He stated that he saw the dead body of the deceased in the Lengten Tea Garden Hospital and came to know that the accused fled from the scene after committing the crime and was hiding in his house, who was later apprehended. He stated that he saw the dead body of the deceased in the Lengten Tea Garden Hospital and came to know that the accused fled from the scene after committing the crime and was hiding in his house, who was later apprehended. He further stated that when he enquired, the accused himself stated that he had thrown the dao below the culvert, with which he killed his own brother and as shown by him, the said dao was recovered and seized in presence of the witnesses. In his cross-examination, PW.9 stated that PW.6, Urmila Konwar did not state before him that the accused and the deceased had a fall out. He further deposed that said PW.6 did not state that her daughter Padma and the wife of the accused Jayanti witnessed the incident from veranda. He denied the suggestion that he conducted the investigation mechanically. 22. It is seen that the evidence of the eye witnesses to the incident PW.2, PW.5, Padma Tuti, wife of the deceased and PW.6, Urmila Konwar, mother-in-law of the deceased regarding giving of dao blow on deceased by the accused on the date of the incident could not be demolished by the defence in evidence and said evidence of the prosecution witnesses remained intact. 23. Moreover, the medical evidence of the Autopsy Doctor, PW.7 and his opinion that the death was caused due to shock and haemorrhage as a result of ante-mortem injuries caused upon the body of the deceased on his head and chest by sharp weapon, completely corroborates the evidence adduced by those two witnesses PWs.5 and 6 for the prosecution. It is also not the case of the accused appellant that the evidence adduced by the eye witnesses on behalf of the prosecution are not reliable and untrustworthy. 24. No doubt that PW.5 is the wife of the deceased whereas PW.6 is his mother-in-law and are related witness. But it is a settled principle of law that once the statement of a witness is found trustworthy and is duly corroborated by other evidence; there is no reason for the Court to reject the statement of such witness merely on the ground that it was a statement of a related or interested witness, but for the correct approach of the Trial Court is to do justice and ensure that the guilty did not go scot-free. 25. The consistent statement of the eyewitnesses PWs. 25. The consistent statement of the eyewitnesses PWs. 5 and 6, which were fully supported and corroborated by other witnesses i.e. the Doctor PW.7 as well as the Investigating Officer of the case PW.9, including accused leading to the discovery of the dao under the culvert, that was used in the crime, immediate lodging of the FIR, the Post Mortem Report of the deceased, all these establish the case of the prosecution and guilt of the appellant/accused beyond reasonable doubt. 26. For the reasons above we are of the view that the impugned judgment of conviction and sentence dated 07.04.2016 passed by learned Additional Sessions Judge No.2, Nagaon, Assam in Sessions T-(1) Case No. 99 of 2014 does not call for any interference. 27. Accordingly this appeal stands dismissed. 28. After considering the matter, we direct the Government of Assam to deposit an amount of Rs. 1,00,000/- with the Additional Sessions Judge No.2, Nagaon, Assam within 3 (three) months from the date of receipt of the copy of this Judgment, towards compensation under Section 357-A of the Cr.P.C payable to the wife of the deceased, namely, Smti. Padma Tuti (PW.5). On receipt of the said amount, learned Additional Sessions Judge No.2, Nagaon shall disburse the said amount to Smti. Padma Tuti, wife of the deceased Markas Tuti, on her proper identification and on obtaining necessary receipt from her. 29. We appreciate the valuable assistance rendered by both Mr. S K Ghosh, learned Amicus Curiae, appearing on behalf of the appellant/accused and Mr. M. Phukan, learned Additional Public Prosecutor, Assam representing the State. The State Legal Services Authority, Assam, Guwahati shall pay Rs. 7,500/- to the learned Amicus Curiae Mr. S. K. Ghosh towards his professional fee, on raising a bill. 30. Registry shall return the records of Sessions Case No. Sessions T-(1) Case No. 99 of 2014 to the Court of learned Additional Sessions Judge No.2, Nagaon, Assam, with a copy of this Judgment. Registry shall also furnish a copy of this Judgment to the appellant-accused Sri Sanjay Tuti through the Superintendent of Central Jail, Nagaon.