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2019 DIGILAW 1054 (GAU)

Abodia Barju @ Ramu v. State Of Assam

2019-09-17

M.R.PATHAK, SONGKHUPCHUNG SERTO

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JUDGMENT : S. Serto, J. Heard Mr. Bikash Prasad, learned Amicus Curiae appearing for the appellant and Mr. M. Phukan, learned Addl. Public Prosecutor, appearing for the State of Assam. 2. This is a jail appeal preferred against the judgment and sentence order dated 14/9/2017 passed in Sessions Case No.74 (SC) of 2015 by the learned Sessions Judge, Sivasagar wherein and whereby the appellant was held guilty of having committed the offence punishable under section 302 IPC and sentenced to rigorous imprisonment for life with a fine of Rs.1000/- and in case of default in payment of the same to further suffer Simple Imprisonment of one month. 3. On 11/12/2014 at 2.30 AM a GD entry being No.178 was made by the incharge of Sepon Police Out post on the information received from PW 3 i.e. Udit Gogoi, VDP Secretary of Kachupathar area over telephone stating that his neighbour namely, Beertha Logan have been assaulted with a rod in front of Uma Mohan's house by Abodia Barju @ Ramu and killed her. Following the GD entry, the I.O. concerned went to the place of occurrence and on reaching the same found the death body of Beertha Logan. As such he conducted inquest over the death body and also arrested the accused Abodia Barju, and at the same time seized the crime weapon i.e. an iron rod. Thereafter, at about 5 am of the same day, the son of the victim Jaiful Logan who later on deposed before the trial Court as PW 5 lodged an FIR to the in-charge of Sepon Police Out-post stating that at about 2 PM of that day when his mother Late Beertha Logan aged about 55 years was on her way to a nearby rice mill, their neighbour Abodia Barju had killed her with a rod by hitting on her head in front of Uma Mohan's house. He also stated that the accused/appellant was apprehended by PW 3 and handed him over to the police. After receipt of the ejahar, the same was forwarded to the Officer incharge of Moranhat P.S and the Moranhat P.S registered the case as Moranhat P.S. 153/2014, under section 304 IPC against the accused appellant. 4. In the course of the investigation, post mortem was conducted over the death body at Sivasagar civil hospital by the doctor namely, Dr. After receipt of the ejahar, the same was forwarded to the Officer incharge of Moranhat P.S and the Moranhat P.S registered the case as Moranhat P.S. 153/2014, under section 304 IPC against the accused appellant. 4. In the course of the investigation, post mortem was conducted over the death body at Sivasagar civil hospital by the doctor namely, Dr. Dipak Gogoi who later on gave evidence before the trial Court as PW 1. After the investigation was completed charge-sheet was filed before the learned CJM Sivasagar on 31/11/2014 and the same was committed by the learned CJM Sivasagar to the learned Sessions Judge, Sivasagar after completing all formalities required under Cr.PC. During the trial, the prosecution produced and examined 9 PWs and exhibited 6 documents and the crime weapon (iron rod). Besides the 9 PWs, one Court witness was also examined. However, the accused appellant did not produce any defence witness. On finding that there were materials against the accused, the accused was examined under section 313 of the Cr.PC. Thereafter, the learned trial Court heard the prosecution and the defence counsel and after that was over, the learned trial Court came to the conclusion that the accused appellant had committed the offence punishable under section 302 of the IPC and accordingly sentenced him as stated above. 5. Mr. Bikash Prasad, learned Amicus Curiae submitted that from the evidence of PW 2 who is the eye witness and none other than the aunty of the accused/appellant, it is quite clear that the accused/appellant had not assaulted the victim by hitting her with an iron rod from her back side only, but the post mortem report reveals that she died of the injury suffered on the front side of her head, therefore, the death of the victim could not have been caused by the accused/appellant. The learned Amicus Curiae also submitted that there is no evidence from the statements of the PWs that would prove that the accused appellant had any history of animosity between him and the victim which could or would have driven him to commit such an act. Therefore, the conclusion drawn by the learned trial Court has no basis and deserves to be quashed and set aside. 6. Mr. M. Phukan, learned Addl. Therefore, the conclusion drawn by the learned trial Court has no basis and deserves to be quashed and set aside. 6. Mr. M. Phukan, learned Addl. Public Prosecutor, while referring to the evidences given by the PWs submitted that the fact that the accused/appellant was the only one seen by the eye witness i.e PW 2 as the one who assaulted the deceased victim no other person or persons could have committed murder of the deceased victim. The learned Addl. Public Prosecutor also submitted that the fact that PW 2 only saw the accused/appellant hitting the victim once only from the back side does not mean that he did not continue to assault him thereafter. The learned Addl. Public Prosecutor further submitted that the fact that PW 3 had stated while deposing before the trial Court that he saw the accused/appellant keeping the death body of the victim Beertha Logan under the paddy stumps and he is the one who apprehended him and handed over to the police and that he also saw him (the accused/appellant) with an iron rod when he apprehended him and the fact that he identified the same in the Court room when he testified corroborated the evidence of PW 8 that the accused/appellant was there at the site of place of occurrence. Mr. Phukan also submitted that the fact that PW 8 who was one of the witnesses while inquest over the death body was conducted had also stated that he saw the death body of his mother (victim) lying at the place of occurrence and PW 3 told him that the accused/appellant had killed her only points to the fact that the charge against the accused/appellant is true. Lastly, Mr. Phukan submitted that the accused/appellant had made extra judicial confession before PW 3 by stating that he had finished off Beertha Logan. Therefore, there is nothing wrong in the judgment and sentence order passed against the accused/appellant by the trial Court. 7. We have minutely examined the evidence of all the witnesses and the exhibits that are in the record. From the evidence, we find that the complainant or the person who lodged the ejahar is the brother-in-law of the accused/appellant and the deceased victim was the mother of the complainant and mother-in-law of the accused/appellant. 7. We have minutely examined the evidence of all the witnesses and the exhibits that are in the record. From the evidence, we find that the complainant or the person who lodged the ejahar is the brother-in-law of the accused/appellant and the deceased victim was the mother of the complainant and mother-in-law of the accused/appellant. Further, we also find that though the father-in-law of the accused/appellant was still alive and have other children borned out of his marriage with his wife i.e the victim they all live separately but near to each other. Only the victim live alone in a separate house. From the statement of PW 2, it can be concluded that she saw when the accused/appellant assaulted the deceased victim which caused her death. The witness stated that while she was working in their paddy field she saw the deceased victim sitting on the gateway of Uma Mohan's residence which is near her house and the field and she also saw the accused/appellant coming and hitting her (the victim). The prosecution witness in her cross-examination confirmed that she saw the incident. The evidence of this witness is supported by a sketch map which is exhibited as Ext.5. The exhibit shows that the place of occurrence and the field where the witness was working at the time of occurrence of the crime are just adjacent to each other. Nothing that she said in her cross-examination has discredited or shaken the evidence given by her. Her evidence is simple and straight to the point and there is no sign of any concoction or embellishment and most of all, as stated above, she is the aunty of the accused/appellant himself, therefore, there is no reason why she would have concocted a story or give false evidence against her own nephew if it was not only for the sake of truth. Therefore, we find no reason to doubt her testimony. The argument that she saw the accused/appellant hitting the victim only once that too from her back side does not seem to be making any strong case for the accused/appellant because, the witness stated that after she saw the accused/appellant hitting the victim from her back side she ran away from the place. This kind of reaction is an instinctive reaction which is quite natural for a woman. This kind of reaction is an instinctive reaction which is quite natural for a woman. The fact that she saw the accused/appellant hitting the victim only once would not necessarily take us to the conclusion that the accused/appellant hit the victim only once. As evident from the post mortem report, the victim also suffered from injuries on the frontal side of the head and multiple fractures on both sides of the ribs. All these only shows that the accused/appellant continued the assault thereafter, till the victim died. Further, the evidence of PW 3 that he saw the accused/appellant with an iron rod in his hand near the death body of the victim and the accused/appellant told him that he had finished off Beertha Logan(victim) only strengthens the case of the prosecution. All these in fact shows that it is none other but only the accused/appellant who had assaulted the victim and caused her death. Further, the fact that though the accused appellant was given the chance under section 313 Cr.PC to explain the circumstances which were against him but he did not do so also shows that the prosecution's case against him that he had committed the murder is true beyond any reasonable doubt. 8. Pw 5 testified that he is the one who lodged the ejahar on coming to know through his neighbour that his mother had been killed by the accused/appellant. PW 7 and PW 9 stated that they saw the accused appellant with iron rod with which the crime was committed and the same was seized by the police at his instance (accused/appellant). They also proved the fact that they signed on the seizure list by identifying the exhibit and their signatures thereon. In fact PW 9 is the I.O and he had testified that the iron rod was seized by him at the instance or as shown by the accused/appellant. The I.O i.e. PW 9 exhibited the seizure Memo and also exhibited his signature thereon. 9. The Doctor who conducted the post mortem was examined as PW 1 and his finding on the death body of the victim are as follows:- 1. External appearance: Dead body of a female person. Rigor mortise was present. 1. Injury: (i) 3cm X 7cm laceration on forehead. (ii) 10 cm laceration on scalp over occipital bone and right temporal bone. (iii) 5 cm laceration on right ear. External appearance: Dead body of a female person. Rigor mortise was present. 1. Injury: (i) 3cm X 7cm laceration on forehead. (ii) 10 cm laceration on scalp over occipital bone and right temporal bone. (iii) 5 cm laceration on right ear. There was oozing of blood from nostrils and mouth. 2. Cranium and spinal canal:- Scalp, skull and vertebrae-Laceration on scalp as described in column No.1. Fracture and frontal bone. Membrane-lacerated. Extradural haemorrhage was present. Brain and spinal cord -lacerated brain. Liver, spleen, kidney were healthy. Bladder- empty. Organs of generation- healthy. 3. Thorax: Walls, ribs and cartilage - fracture of multiple ribs. Pleurae Larynx and Trachea - healthy. Vessels - healthy. Injury - As described in column No.1. 4. Abdomen :- Walls, peritoneum, mouth, Pharynx, oesophagushealthy Stomach and its contents contained semi-solid food. Small intestine and large intestine and its contents- healthy Stomach and its contents - empty Small intestine and large intestine and its contents- healthy 5. Disease or deformity - Nil 6. Fracture (i) Fracture of frontal bone, (ii) Fracture of mandible (iii) Fracture of multiple ribs on both sides. 7. More detailed description: Dead body of a female person. Rigor mortise was present. There were laceration on forehead, scalp and right ear. There were fractures on frontal bone, mandible and multiple ribs on both sides. There was extradural haemorrhage and the brain matter was lacerated. 9. Opinion: In my opinion, the cause of death of the deceased was due to coma, as a result of head injury. Ext.1 is the postmortem examination report and Ext.1(1) is my signature. Ext.1(2) is the counter signature of the then Joint Director, Health Services, Sivasagar. These injuries are sufficient to cause death of a person in the ordinary course of nature. And these injuries may be caused by using like iron rod." 10. From the testimony of the Doctor 2 things are distinctly clear, one is, that the victim suffered injury on the back of her head and that goes to support the evidence of PW 2 that the victim was first hit on the back side by the accused/appellant and secondly that the injuries were caused with an iron rod. From the evidence discussed above, we have no doubt in our mind whatsoever that it is the accused/appellant who alone committed the murder of the victim deceased. From the evidence discussed above, we have no doubt in our mind whatsoever that it is the accused/appellant who alone committed the murder of the victim deceased. Therefore, we agree with the finding and conclusions of the learned trial Court and the sentence passed by him. As such, we find no reason to interfere with the impugned judgment. Accordingly, the appeal fails and it is dismissed. 11. Before we part with the judgment, we record our appreciation of the learned Amicus Curiae for the assistance rendered by him. The High Court Legal Services Committee shall pay the learned Amicus Curiae his legal fees i.e. Rs. 7500/- on production of a copy of this order. 12. Send a copy of this order to the Superintendent of District Jail, Sivasagar for his information and information of the appellant. 13. XXX XXX XXX 14. Return the LCRs.