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2019 DIGILAW 1270 (GAU)

Dukhia Kujur v. State of Assam

2019-11-22

MIR ALFAZ ALI, SANJAY KUMAR MEDHI

body2019
JUDGMENT : Sanjay Kumar Medhi, J. 1. The instant appeal has been preferred against a judgment and order dated 29.11.2016, passed by the learned Sessions Judge, Chirang, Kajalgaon in Sessions (T-1) Case No. 17 (BASU)/2016 by which the appellants have been convicted under Section 302, read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- each with a default clause of simple imprisonment for 1 (one) year. 2. We have heard Mr. MH Ahmed, learned counsel for the appellants as well as Ms. B Bhuyan, learned Addl. Public Prosecutor, Assam. 3. The records of the case have also been produced, which have been carefully examined by us. 4. Before proceeding with the case, it would be convenient to narrate the basic facts in brief. 5. One Surendra Kujur had lodged a FIR on 30.07.2008 before the Bengtol Police Out- Post alleging, inter alia, that in the earlier evening of 29.07.2008, his mother-in-law, namely, Lalo Panna was beaten up severely by the accused persons while she was alone. It has been alleged that the accused persons, including the appellants herein, had come to her house and had carried her forcibly to the house of one Sri Dukhia Kujur where she was severely beaten. It is the case of the informant that on getting the information, he had come from Bongaigaon and saw his mother-in-law lying at the house of Sri Dukhia Kujur from where she was brought to her own house. It has further been alleged that his mother-in-law had disclosed the names of the persons who had beaten her. On the early morning of the next day i.e., 30.07.2008, the mother-in-law had expired. 6. The case was accordingly forwarded to the Basugaon Police Station and the same was registered as Basugaon PS Case No. 110/2008, under Sections 143/447/342/302 of the IPC. After completion of the investigation, the charge sheet was submitted. The appellants having denied the allegation, the trial had begun. The prosecution had adduced evidence through seven numbers of witnesses, including the informant who was examined as PW-2. 7. Smti. Manju Kujur, who is the daughter of the deceased, was examined as PW-1. After completion of the investigation, the charge sheet was submitted. The appellants having denied the allegation, the trial had begun. The prosecution had adduced evidence through seven numbers of witnesses, including the informant who was examined as PW-2. 7. Smti. Manju Kujur, who is the daughter of the deceased, was examined as PW-1. She deposed that on being informed about assault being committed upon her mother, she had reached the place of occurrence with her husband and found the deceased lying on the courtyard of accused Dukhia Kujur with injuries all over her body when she had talked to her and fed her with water. She further deposed that the deceased had narrated the entire incident of commission of assault upon her by Dukiya Kujur, Jigra Kujur, Sani Kujur and two Ojha by lathis alleging her to be a 'witch' (diani). The said PW-1 had brought the deceased to her house and in the early morning of the next date, she expired. She also deposed that her husband (PW-2) had lodged the ejahar in the concerned Bengtol Police Out-Post and that her statement was also recorded. 8. Though in the cross-examination a question was put to her regarding the reasons of not informing the police immediately, the said PW-1 had deposed that since the night had fallen, immediately the police was not informed. The dying declaration made to her was reiterated in the cross-examination in a suggestion put to her. 9. The informant Sri Surendra Kujur was examined as PW-2 and his version is more or less consistent with the narration made in the ejahar as well as the deposition of PW-1 who had accompanied him to the place of occurrence and had brought the deceased back to her residence. The said PW-2 reiterated that the deceased had named the accused, including the appellants, as being the assailants; a fact which was also narrated in the ejahar itself. The PW-2, however, admitted that he had not seen blood oozing injuries on the body of the deceased. 10. Sri Kamaleswar Tappo was examined as PW-3, who had narrated that the fact of assault was informed to him by one Durga Kujur (PW-4) along with whom he had gone to the place of occurrence and found the deceased lying on the floor in an injured condition in the house of Dukhia Kujur, who has been described to be the son of Ratiram. He has also deposed that the deceased had named the accused persons before him who had caused the injuries. He had also deposed that he along with PW-4 had informed the PW-2 (son-in-law) about the incident whereupon the PW-1 and PW-2 had come to the spot. He then learnt that the deceased had succumbed to her injuries on the next morning. He has further deposed that he had written the FIR as per version of PW-2 who had lodged the same before the concerned police station. In the cross-examination, however, he has admitted that he did not tell before the police regarding the dying declaration made by the deceased. 11. PW-4 is one Sri Durga Ram Kujur, who is a teacher of a private school, deposed that on the date of the incident while he was coming with his motor cycle, he could learn from some villagers that the deceased was being beaten by some persons in the house of Sri Dukhia Kujur who has been described to be the son of Sahrai Kujur. He has deposed that along with PW-3, PW-5 and PW-6, he had gone at first to the house of the deceased and on being found the same to be empty, went to the residence of Dukhia Kujur and saw the deceased lying on the floor of the house in an injured condition. He has further deposed that the deceased had categorically stated before him that she was beaten by the accused persons and two Kabiraj who were sitting inside the room. In the cross-examination, the said PW-4 had, however, admitted that he was not an eye witness to the assault. He, however, denied the suggestion that statement regarding dying declaration was not made by him to the police. 12. PW-5 is one Sri Thomas Minz, who deposed that on getting the information, he had gone to the house of Sri Dukhia Kujur and found the deceased lying on the floor. He could also see the accused persons with two Kabiraj, namely, Dharmeswar and Ajit, who were in an angry mood with a tendency to further assault the deceased terming her as a diani (witch). The said PW-5 also deposed that the deceased had categorically named the three accused and the Kabiraj as her assailants who had assaulted her with lathi and spade suspecting her to be a witch. The said PW-5 also deposed that the deceased had categorically named the three accused and the Kabiraj as her assailants who had assaulted her with lathi and spade suspecting her to be a witch. In the cross-examination, he had denied the suggestion that the fact of dying declaration was not narrated by him before the police. 13. PW-6 is one Sri Dinesh Back, who narrated that upon information received, he had visited the residence of the deceased where the village Headman had requested him to call some other villagers to discuss the matter. 14. PW-6 Dr. Rabindra Ch. Debnath is the Medical Officer, who had conducted the post mortem. External injuries, such as, a cut mark on the left hand on dorsal which sizes 1" x 1/2", multiple bruise marks on the chest, west and the back were found on the dead body. The liver and spleen were, however, found to be ruptured and in his opinion, the death was due to haemorrhagic irreversible shock due to hepatorenal failure on impact by blunt weapon; the injuries are ante mortem in nature. In the cross-examination, he had further added that there was liver failure due to haemorrhage in the liver and injuries could be caused by blunt weapon. 15. Sri Mahidhar Taye, the Investigating Officer of the case was examined as PW-7, who narrated about the investigation made by him, which included visiting the place of occurrence, recording of statements, preparing the sketch map and submission of the charge sheet upon materials found against the accused appellants. 16. The appellants were given an opportunity under Section 313 of the CrPC; in which, they had denied their involvement in the incident. 17. The learned Sessions Judge, Chirang vide the impugned judgment and order dated 29.11.2016 held the appellants guilty of the sections mentioned above and passed the impugned sentence. 18. Sri Ahmed, learned counsel for the appellants submits that from the materials on record, the intention to cause death does not appear. By referring to the nature of the injuries which is corroborated by the medical evidence, the learned counsel has submitted that the injuries caused are not grievous in nature which would ordinarily cause death. Further, the use of weapons does not appear to be substantiated from the nature of the injuries as reflected in the medical evidence. By referring to the nature of the injuries which is corroborated by the medical evidence, the learned counsel has submitted that the injuries caused are not grievous in nature which would ordinarily cause death. Further, the use of weapons does not appear to be substantiated from the nature of the injuries as reflected in the medical evidence. The learned counsel for the appellants further submits that so far as the dying declarations are concerned, there are inconsistencies regarding such declaration made vis-a-vis the time and place as narrated by the different PWs. It is the submission of the learned counsel that such inconsistencies render the dying declaration to be unworthy of any evidentiary value. He further submits that the intention to cause death can be safely ruled out inasmuch as even after the alleged incident, all the accused appellants were found to be present in the place of occurrence without trying to flee or abscond as substantiated by the evidence of PW-4 and PW-5. Mr. Ahmed has submitted that the impugned judgment is not based on the materials on record and is, therefore, liable to be interfered with. Sri Ahmed, learned counsel for the appellants in support of his submission has relied upon the following decisions of the Hon'ble Supreme Court:- 1. Lal Mandi Vs. State of West Bengal, AIR 1995 SC 2265 ; 2. Nagappan Vs. State by Inspector of Police, Tamil Nadu, (2013) 15 SCC 252 ; and 3. Gajanan Dashrath Kharate Vs. State of Maharashtra, (2016) 4 SCC 604 . 19. Per contra, Ms. Bhuyan, learned Addl. Public Prosecutor, Assam has submitted that the evidence on record, more particularly, the depositions of PW-1, PW-2, PW-3 and PW-4 are consistent so far as the dying declaration is concerned. She has further submitted that the injuries caused upon a lady of more than 60 years which will are only confined to bruise and cut injuries but also rupture of spleen and liver and, therefore, it cannot be said that the appellants did not have the knowledge that such injuries were sufficient to cause the death of a person. She, accordingly, submits that the impugned judgment is not liable for any interference. Additionally, she submits that the incident in question, involves witch hunting which is causing a menace in the society and incidents of such nature, has to be dealt with in a firm manner. 20. She, accordingly, submits that the impugned judgment is not liable for any interference. Additionally, she submits that the incident in question, involves witch hunting which is causing a menace in the society and incidents of such nature, has to be dealt with in a firm manner. 20. The rival contentions of the learned counsel for the parties have been duly considered and the records produced have been meticulously examined. Though the learned counsel for the appellants has questioned the dying declaration, considering the evidence of PW-1, PW-2, PW-3 and PW-4 in this regard which are consistent, we are unable to accept the said submission that the dying declaration is unworthy of any evidentiary value. We have noted that the said four witnesses have been consistent in their deposition that before the death, the deceased narrated the incident of assault upon her and had named all the accused persons. The fact that such dying declarations were made at different places and at different times would not weaken the case of the prosecution and rather, the same would increase the trustworthiness of such declarations, as the same appeared to be natural and normal. Since the involvement of the appellants has been established, it is required to be examined as to whether there was any intention to cause death of the deceased. The evidence on record, more particularly that of PW-5, would demonstrate that even after the assault, the appellants did not flee from the place of occurrence. Further, use of weapons as alleged, is not fully corroborated by the nature of the injuries which is able to be caused by fists, blows and kicks. The portion of the body where the external injuries are noted, namely, chest, west and the back would suggest that the extreme intention to cause death cannot be conclusively established. The cut mark on the left hand on dorsal is also not severe in nature. 21. In the case of Lal Mandi (supra), the Hon'ble Supreme Court has laid down the law that in an appeal against conviction, if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. For ready reference, paragraph No. 5 of the said judgment is quoted hereinbelow:- "5. To say the least, the approach of the High Court is totally fallacious. For ready reference, paragraph No. 5 of the said judgment is quoted hereinbelow:- "5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence. The High Court failed to do so and its view is patently erroneous. Though this Court does not generally reappraise the evidence which has been considered by two courts below in an appeal by special leave but since the consideration of the evidence by the High Court was not proper, we have ourselves analysed the evidence on the record with the assistance of learned counsel for the parties." 22. Though this Court does not generally reappraise the evidence which has been considered by two courts below in an appeal by special leave but since the consideration of the evidence by the High Court was not proper, we have ourselves analysed the evidence on the record with the assistance of learned counsel for the parties." 22. In the case of Nagappan (supra), the Hon'ble Supreme Court has laid down importance of corroboration of ocular evidence vis--vis the medical evidence on record. The aforesaid citation has been relied on to buttress the argument that the medical evidence on record does not corroborate with the allegations of use of weapons in causing the assaults. 23. In the case of Gajanan Dashrath Kharate (supra), the emphasis on lodging a timely FIR has been laid down. In paragraph 11 thereof, the Hon'ble Supreme Court has held as under:- "11. On behalf of the appellant, it was submitted that delay in registration of first information report creates serious doubts about the prosecution case and the prosecution has not satisfactorily explained the delay. PW-1-Nagorao Kharate lodged the complaint at Boregaon Manju Police Station on 08.04.2002 at about 5.00 p.m. In his evidence, PW-1-Nagorao Kharate stated that Boregaon Manju Police Station is about eight miles from their village and that they had to go to Boregaon Manju Police Station via Akola. PW-1 further stated that he went to Akola at 3.00 p.m. and from Akola he went to Boregaon Manju Police Station at about 5.00 p.m., as no vehicle was available at that time. PW-1 further stated that it takes two to three hours by walk to reach Boregaon Manju Police Station from his village. Delay in setting the law into motion by lodging of complaint and registration of first information report is normally viewed by courts with suspicion because there is possibility of concoction and embellishment of the occurrence. So it becomes necessary for the prosecution to satisfactorily explain the delay. The object of insisting upon a prompt lodging of the report is to obtain early information not only regarding the assailants but also about the part played by the accused, the nature of the incident and the names of witnesses. In the case at hand, prosecution has satisfactorily explained the delay in lodging the complaint. The object of insisting upon a prompt lodging of the report is to obtain early information not only regarding the assailants but also about the part played by the accused, the nature of the incident and the names of witnesses. In the case at hand, prosecution has satisfactorily explained the delay in lodging the complaint. When the prosecution has explained the delay in lodging the complaint, prosecution case cannot be doubted on the small delay between the time of occurrence and in registration of first information report." 24. Taking everything into consideration, we are of the opinion that conviction under Section 302 of the IPC is not maintainable and rather, a conviction under Section 325 of the IPC would be proper. Accordingly, we convert the conviction from one under Section 302 of the IPC to Section 325 of the IPC. Consequently, we alter the sentence from rigorous imprisonment to life to rigorous imprisonment for a term of 4 (four) years without altering the sentence with regard to the fine. It is submitted that by this time, the appellants are in custody for a period of 3 years 90 days. There is needless to say that while reckoning the period of 4 (four) years of sentence, the period undergone shall be adjusted. 25. The appeal is accordingly allowed to the extent as indicated above. 26. Send down the LCR forthwith.