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2018 DIGILAW 1637 (GAU)

Chancha Bahadur Bhujel v. State of Assam

2018-11-22

HITESH KUMAR SARMA, MIR ALFAZ ALI

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JUDGMENT : Hitesh Kumar Sarma, J. This is an appeal, preferred from jail, by the accused-appellant, against the judgment and order, dated 9.8.2016, passed by the learned Sessions Judge, Udalguri, in Sessions Case No. 48/2015, convicting and sentencing the accused-appellant to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-with a default clause under Section 302 IPC. The case for the prosecution is that, PW5, Prem Bahadur Tamang, lodged an FIR with the Udalguri Police Station, on 24.10.2014, alleging that at about 7:00 pm on 23.10.2014, her daughter Swapna Tamang was killed by her husband/appellant, i.e. Chancha Bahadur Bhujel, inflicting injuries on her by a sharp weapon, called ‘khukri’ 2. On receipt of the FIR, the Udalguri Police Station registered a case, being Udalguri PS Case No. 162/2014, under Section 302 IPC, investigated into it, collected evidence, caused the inquest and post-mortem of the dead body of the deceased done, prepared the sketch-map of the place of occurrence, recorded statements of the witnesses, and finally, laid charge-sheet against the accused-appellant under Section 302 IPC. 3. After exhausting all the required legal formalities, the case came up before the learned Sessions Judge, Udalguri. The learned Sessions Judge framed a formal charge against the accused-appellant under Section 302 IPC to which the accused-appellant pleaded innocence. Therefore, the trial commenced. 4. To bring home the charge, the prosecution examined as many as 10 (ten) witnesses including the Autopsy Doctor and the Investigating officer. 5. We have heard learned amicus curiae for the accused-appellant, Mr. Kaushik Goswami as well as Ms. S. Jahan, learned Additional Public Prosecutor for the state respondent. 6. We have also perused the record of the learned trial court including the impugned judgment. 7. For convenience, let us first take up the evidence of Autopsy Doctor to ascertain whether the death is homicidal, suicidal or accidental. 8. The Autopsy Doctor is examined as PW7. It has come out from his evidence that he examined the dead body of the deceased on the next day of the date of occurrence, i.e. 24.10.2014, in the Udalguri Civil Hospital, vide Ext. 2. On examination of the dead body of the deceased, he found as follows. EXTERNAL APPEARANCE:- Built average, colour gray, height 5 feet, weight 49 kg, dressed in red-green panty/peticot, red strip blouse, pink white Sadar. Clotted blood over hair, face, hands and feet. Rigor-mortis present. 2. On examination of the dead body of the deceased, he found as follows. EXTERNAL APPEARANCE:- Built average, colour gray, height 5 feet, weight 49 kg, dressed in red-green panty/peticot, red strip blouse, pink white Sadar. Clotted blood over hair, face, hands and feet. Rigor-mortis present. Blood stains over the whole body from head hair to feet. Incised horizontal cut wound on the back of the neck 5 X 2 inches from left to right. Incised horizontal cut wound on the back of the left shoulder 4 X 2 inches. CRANIUM AND SPINAL CANAL:- Scalp, skull, vertebrae-fracture C3 C4. More detailed description of injury decease:- Sharp cut injury resulting in (1) Incised horizontal cut wound on the back of the neck 5 X 2 inches and fracture of cervical bone 3 and 4. (2) Incised horizontal cut wound on the back left scapula/shoulder and fracture of scapular bone. (3) Whole body from head hair to feet clotted blood. It has been opined by the Autopsy Doctor /PW7 that the death is due to haemorrhagic shock from sharp cut injuries and time of death is 18 to 24 hours. 9. The nature of injury sustained by the deceased, as indicated above, coupled with the opinion of the Autopsy Doctor, leaves this court with no doubt that the death was homicidal and is result of sharp cut injury sustained by him. Therefore, the question needs to be decided by this court is as to who had committed the crime. 10. The evidence of PW1 is that, the deceased is his niece and that the occurrence took place on 23.10.2014 at the time of Diwali festival. He was offering puja to goddess Laxmi at about 7:00 pm on that day. He heard the villagers raising alarm to the effect that somebody was cut. He went to her niece’s house and found her lying dead with injuries on both sides of her neck and back. He also deposed that the accused left the place of occurrence leaving the ‘khukri’ there which the police seized, vide Ext. 1, in his presence as witness. He went to her niece’s house and found her lying dead with injuries on both sides of her neck and back. He also deposed that the accused left the place of occurrence leaving the ‘khukri’ there which the police seized, vide Ext. 1, in his presence as witness. In his cross-examination, while denying the evidence led by PW1 to the effect that the accused-appellant left the place of occurrence leaving the khukri there, the defence made an attempt to indicate that on the date of occurrence the accused-appellant was not available at his home, meaning thereby, that he has taken the plea of alibi suggesting specifically that he was in Mizoram in the relevant point of time. 11. PW2 is not the witness to the occurrence. He head from the elder daughter of the deceased, namely, Kamini, that her father had killed her mother. He saw the injuries on the dead body of the deceased. 12. The evidence of PW3 is that he is the witness to the seizure of the weapon of offence i.e. khukri, vide Ext. 1. He is specific in his cross-examination that the seizure was made at the place of occurrence. 13. PW5 is the mother-in-law of the accused-appellant and mother of the deceased. She came to the place of occurrence on hearing about the same on the next day of the date of occurrence, and, by that time, the dead body was shifted to the hospital. In effect, her evidence does not throw any light to the facts relevance to the occurrence. 14. The evidence of PW8 has lost its relevance in view of the evidence of PW7, as PW7 and himself together performed the post-mortem examination on the dead body of the deceased and PW7 prepared and submitted the post-mortem report. PW8 did not submit any separate report as they jointly conducted the post-mortem examination on the dead body of the deceased. Therefore, as stated above, the evidence of PW8 has lost its relevance in view of the evidence of PW7, discussed above. 15. PW9 is the investigating officer, who initially entered the information in the General Diary, on receipt of information about the occurrence from the VDP Secretary, Sher Bahadur Tamang, examined as PW1, over phone. Thereafter, he visited the place of occurrence and found the dead body was lying in a pool of blood. 15. PW9 is the investigating officer, who initially entered the information in the General Diary, on receipt of information about the occurrence from the VDP Secretary, Sher Bahadur Tamang, examined as PW1, over phone. Thereafter, he visited the place of occurrence and found the dead body was lying in a pool of blood. He also saw the khukri at the place of occurrence which he seized vide Ext. 1 aforesaid. He also prepared the sketch-map, vide Ext. 3, showing the place of occurrence to be the house of the accused-appellant. In his cross-examination, the defence is not found to have been able to elicit anything which would have shaken the credibility of the investigation of the case. 16. Now, let us discuss the evidence of PW4, the most vital witness in this case, and, in the considered view of the court, the entire decision of the case would be based on her evidence supported by the only evidence of the seizure witnesses, being PW1 and PW3, in respect of seizure of the weapon of offence. It has come out from the evidence of PW4, who is the daughter of the accused-appellant as well as the deceased, that while she was taking rest on bed in her house, she heard her mother calling her. When she went to her mother, she found that her mother was lying seriously injured in a pool of blood. The deceased asked her to lift her, but she died instantaneous death at the place of occurrence itself. In her evidence, the PW4, she is found to be categorical while stating that at the time of death of the deceased, except her father and mother, three daughters of the deceased including herself were present there. She has categorically stated that she saw her father fleeing away from the place of occurrence on her reaching her mother. The seized khukri i.e. the weapon of offence was found in the place of occurrence as is evident from the evidence of the investigating officer, examined as PW9, and supported by the evidence of PW1 and PW3. There is absolutely no question raised about the veracity of the fact that the khukri belonged to the accused-appellant. The seized khukri i.e. the weapon of offence was found in the place of occurrence as is evident from the evidence of the investigating officer, examined as PW9, and supported by the evidence of PW1 and PW3. There is absolutely no question raised about the veracity of the fact that the khukri belonged to the accused-appellant. The evidence on record is also clear that immediately after the occurrence not only the accused-appellant left the place of occurrence, but also he was absconding for about 44 days, leaving his 3 minor daughters, till he appeared before the investigating officer, on his own, in the police station, on 3.12.2014. The desperate attempt made by the defence to project that the accused-appellant was in the state of Mizoram and not at his home at the relevant time of occurrence, fails to evoke confidence of this court in view of the fact that his daughter/PW4 has categorically stated that her father was available in his house on the date of occurrence, and there is no instance, even to suggest remotely, that the PW4 had any reason to lie implicating her father with the commission of the alleged offence. 17. Therefore, in spite of the fact that the PW4 did not see the accused-appellant inflicting fatal assaults on the deceased yet she had seen the accused-appellant fleeing from the scene of occurrence and the weapon of offence lying by the side of her mother. This fact, if read in combination with the fact that immediately after the occurrence, he was absconding for 44 days till he appeared before the investigating officer and also the fact that he had taken the false plea of alibi which can be linked to the aforesaid two circumstances to establish that it was none but the accused-appellant who had committed the crime. In the considered view of this court, the aforesaid three circumstances, if read together, makes it clearly appear that, there cannot be any other hypothesis except that the accused-appellant had committed the offence of murder of his wife/deceased. 18. That being so, the decision rendered by the learned trial court, appears to have been based on materials on record, and therefore, requires 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. 18. That being so, the decision rendered by the learned trial court, appears to have been based on materials on record, and therefore, requires 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.