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2018 DIGILAW 1606 (GAU)

Golap Borgohain v. State of Assam

2018-11-13

HITESH KUMAR SARMA, MIR ALFAZ ALI

body2018
JUDGMENT & ORDER : Hitesh Kumar Sarma, J. This is an appeal, preferred from jail, by the accused-appellant, against the judgment and order, dated 30.06.2016, passed by the learned Additional Sessions Judge, Jorhat, in Sessions Case No. 170/2013, convicting and sentencing the accused-appellant to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- with a default clause under Section 302 IPC. 1. The fact leading to the prosecution case is that, on 10.10.2013, at about 7:00 am, while deceased Sunil Lahon was working in his tea garden, the appellant assaulted him with a dao on his neck causing his instantaneous death. PW7, wife of the deceased, lodged the FIR with the Lahdoigarh Police Outpost on the above facts. 2. On receipt of the FIR, Lahdoigarh Police Outpost entered the same in the General Diary and then forwarded the FIR to the Teok Police Station. On receipt of the FIR, the Teok Police Station registered a case, being No. 266/2013, under Section 302 of the IPC, investigated into it, collected evidence, and on completion of investigation, laid the charge-sheet against the appellant under Section 302 IPC. 3. After exhausting all the required legal formalities, the trial court, framed a formal charge against the appellant, under Section 302 IPC. The appellant pleaded innocence to the charge and claimed to be tried. Therefore, the trial commenced. 4. During the trial, prosecution examined as many as 10 (ten) witnesses including the investigating officer and the Medical Officer. 5. Heard learned amicus curiae for the appellant, Mr. Z. Hussain. Also heard Mr. N.K. Kalita, learned Additional Public Prosecutor for the state respondent No. 1. 6. We have also perused the record of the learned trial court including the evidence and the impugned judgment. 7. In the instant case, the accusation against the appellant is that, he had committed murder of the deceased by inflicting injuries on his person with a dao. Before appreciating the evidence of other witnesses, for convenience, we propose to discuss the medical evidence on record, particularly, the post-mortem examination report of the deceased as found from the evidence of the PW10/doctor. 8. PW10 is the doctor who was working as Professor and Head of the Department of Forensic Medicine at Jorhat Medical College and Hospital at the relevant time. On being entrusted by him, doctor, Dr. 8. PW10 is the doctor who was working as Professor and Head of the Department of Forensic Medicine at Jorhat Medical College and Hospital at the relevant time. On being entrusted by him, doctor, Dr. Tapan Kumar Das Demonstrator of Forensic Medicine, Jorhat, had performed the post-mortem examination of the dead body of the deceased, Sunil Lahon. PW10 has exhibited the post-mortem examination report, vide Ext.7, as well as the signature of the doctor Dr. Tapan Kumar Das, who performed the post-mortem examination, as Ext.7(1) and Ext.7(2) are the signatures of Dr. Tapan Kumar Das with which he is familiar. As per post-mortem examination report, vide Ext.7, the following injuries were found on the dead body of the deceased. (1) Chop injury of size 10 cm X 1 cm X Bone deep present on the head. Occipital part, right side extending to the parietal area scalp, pori ostreum and skull bone were found cut. (2) Chop injury of size 7 cm X 1 cm X bone deep present over the chin skin, sub coetaneous tissue, muscle, nerves and vessels along mandible bone were found cut. (3) Chop injury of size 11 cm X 3 cm X bone deep present on front of the neck. Skin subcutaneous tissues, muscles, trachea, ousaphogous nerves and vessels were found cut. The fifth cervical vertebrae were found cut and spinal cord transected. (4) Chop injury of size 13 cm X 3 cm X bone deep present on right side of the neck extending to the front and merging with the injury No. 3. The skin sub cutaneuous, tissues nerves and vessels were cut. Fifth cervical vertebrae and spinal cord transected. (5) Chop injury of size 5 cm X 1.5 cm X muscle deep present over the right shoulder superior aspect. (6) Chop injury of size 6 cm X .8 cm X muscle deep present over the left forearm dorsal lateral aspect. (7) Chop injury of size 4 cm X .7 cm X sub cutaneuous tissue deep present on the chest right side along the dorsal border of the scapula. (8) Chop injury of size 2 cm X 0.5 cm X subcutaneous tissue deep present 2 cm medial to parallel injury No. 7. (9) Chop injury of size 2 cm X .05 cm X subcutaneous tissue deep present 1 cm medial to parallel to injury No. 8. (8) Chop injury of size 2 cm X 0.5 cm X subcutaneous tissue deep present 2 cm medial to parallel injury No. 7. (9) Chop injury of size 2 cm X .05 cm X subcutaneous tissue deep present 1 cm medial to parallel to injury No. 8. (10) Chop injury of size 4 cm X .08 cm X subcutaneous tissue deep present on back of the chest, right side along the medial border of the scapula, lower part. (11) Chop injury of size 3 cm X .7 cm X subcutaneous tissue deep present lateral and parallel to the injury No. 10. 9. It has also been opined by the Autopsy Doctor that the death was instantaneous as a result of chop injuries over the neck. All the injuries were ante-mortem and were caused by heavy sharp cutting weapon and homicidal in nature. Approximate time since death is 4 to 6 hours. He proved the post mortem report Ext-7. 10. In this case, it appears that the PWs 1, 2, 3, and 8, are the eyewitnesses to the occurrence. PW8 is the minor daughter of the deceased of about 5 1/2 years of age who was with her deceased father at the relevant time of occurrence and had seen the appellant inflicting injuries on the person of her father causing is instant death. On the other hand, the evidence of PW1 is very specific to the effect that at the time of occurrence, while he was going to his own tea garden, he heard shouting with the words “marile marile” (assaulted me, assaulted me) and then he looked back and saw the appellant assaulting the deceased Sunil Lahon with a dao. This PW1 was accompanied by PW2, Ajit Orang, at that time. It has also came out from his evidence that the PW8/minor daughter of the deceased was also standing at the place of occurrence, thus, subscribing to the evidence of PW8 that he saw the appellant when she was present at the place of occurrence. PW2 has categorically deposed in his evidence that he had seen the appellant assaulting the deceased Sunil Lahon with a dao and stated that due to such assault deceased Sunil Lahon fell down and died instantly. He also saw the appellant running away from the place of occurrence. PW2 has categorically deposed in his evidence that he had seen the appellant assaulting the deceased Sunil Lahon with a dao and stated that due to such assault deceased Sunil Lahon fell down and died instantly. He also saw the appellant running away from the place of occurrence. The evidence of PW2 and PW1 corroborates each other in respect of the fact that it was the appellant who had inflicted dao blows on the deceased causing injuries to his person resulting in his instantaneous death. PW3 is also an eyewitness. He has his own tea garden situated about 10 meters away from the tea garden of the deceased. He was working in his own garden and then he saw the appellant assaulting the deceased Sunil Lahon with a dao, for which, he instantly fell down. Out of fear, he did not go to the place of occurrence. So it appears that PWs 1, 2, 3 and 8 are the eyewitnesses to the occurrence and in their cross-examination, the defence could not dislodge their evidence in respect of commission of the alleged offence by the appellant. The positive and corroborative evidence of the PW1, PW2, PW3, and PW4, as above, has not been subjected to cross-examination by the defence. 11. During the course of argument, the learned Amicus curiae has raised an issue that PW8 said in her evidence that the appellant used a knife, whereas the PWs 1, 2, and 3 said that the appellant used a dao. In the considered view of this court, this is a discrepancy and not a contradiction touching the root of the case. The PW8 is a minor less than 5 years of age on the date of occurrence, and therefore, some discrepancy in her evidence may occur. But, the evidence of PWs 1, 2, and 3, corroborating each other, is very much consistent to the effect that it was the appellant who had inflicted dao blows on the deceased causing his instantaneous death. 12. PW4 is the witness to the seizure of the dao, vide Ext.1. He has exhibited the seized dao, in the court, vide Material Ext.1. In his cross-examination, although he has stated that he has no knowledge about the occurrence, yet he deposed that the Material Ext.1 was seized from the house of the appellant. 12. PW4 is the witness to the seizure of the dao, vide Ext.1. He has exhibited the seized dao, in the court, vide Material Ext.1. In his cross-examination, although he has stated that he has no knowledge about the occurrence, yet he deposed that the Material Ext.1 was seized from the house of the appellant. But, in the same breathe, he deposed that the police told him that the dao was seized from the house of the appellant which he did not see. 13. PW5 is the wife of the appellant. She deposed that the Material Ext.1, dao, was seized by the police from her house i.e. the house of the appellant. In her cross-examination also, she deposed that the dao was seized from her house. The evidence of PW4 is belied by the evidence of PW5. PW5 being the wife of the appellant, her evidence that the Material Ext.1 was seized from the house of the appellant, i.e. her house, is given credence. 14. The evidence of the PW4 also makes it appear that he had put his signature in the seizure list and also identified the seized article, vide Material Ext.1. Therefore, if his evidence is read, in combination with the evidence of PW5, there is no reason to disbelieve that the dao (Material Ext.1) was seized from the house of the appellant. 15. The evidence of PW6 is not very much relevant as he was the witness to the inquest only and there is no dispute that the deceased died due to the injuries sustained by him. His evidence is of formal nature. 16. PW7/wife of the deceased, is the informant, and evidently, she did not witness the occurrence. She heard about the occurrence from her daughter/PW8. Thereafter, she lodged the FIR. 17. PW9 is the investigating officer. It appears from his evidence that he deposed about the investigation carried out by him in respect of the case. No materials could be elicited by the defence, by way of cross-examination, to discredit his evidence. Therefore, in view of the evidence of the PW10 as regards the cause of death of the deceased and the consistent and corroborative evidence of the eyewitnesses, PWs 1, 2, and 3, read together with the evidence of the minor witness/PW8, there is no hesitation to hold that it was none but the appellant who had committed the murder of the deceased. The decision of the learned trial court, to convict the appellant for commission of offence under Section 302 IPC for committing murder of the deceased is based on evidence on record, indicated above. 18. That being so, the impugned judgment passed by the learned trial court needs no interference by this court in exercise of its appellate jurisdiction. 19. Accordingly, the appeal is dismissed. 20. This court records its appreciation for the assistance rendered by learned Amicus Curiae. The learned Amicus-curiae be paid an amount of Rs. 7,500/- as remuneration. 21. Send down the LCR with a copy of this judgment.