Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 464 (GAU)

Kameswar Singh v. State of Assam

2019-04-10

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

body2019
JUDGMENT : A.M. Bujor Barua, J. 1. Heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. A. Ahmed, learned counsel appearing for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 2. An ejahar dated 26.08.2013 was lodged by Binod Kumar Shah before the In-Charge of Amulapatty police outpost, Dibrugarh stating that Kameswar Singh and Raja Singh who were staying as tenants in the house of their neighbor Manoj Thakur had hacked Manoj Thakur with sharp weapon inside his house, as a result of which, Manoj Thakur died inside his house. While running away from the place, Kameswar Singh and Raja Singh had also damaged Manuj Thakurs motor cycle. 3. The informant while deposing as PW-1 stated that on the night of 25.08.2013 at about 10.30 p.m. while he was sleeping in his house, he heard some sound coming from the house of Manoj Thakur. The people of the neighbourhood shouted which woke him up and he went out to enquire about the matter. When he went to the house of Manoj Thakur he found his dead body with injuries on his neck. The witness deposed that later on he came to know from the people nearby that Raja Singh who used to reside in the rented house of Manoj Thakur assaulted him. He further deposed that the mobile phone and the motor cycle of the deceased Manoj Thakur were damaged. In cross, the witness stated that he did not see the occurrence as to who had assaulted the deceased. 4. PW-2 Bhushan Thakur who also resided in the rented house of the deceased Manoj Thakur stated that while he was in his house a quarrel took place between the accused Kameswar Singh and his wife and then he called Manoj. When he heard some sound he came out of his house and saw Manoj who was lying with a cut injury on his neck and at that time, both the accused persons were standing near Manoj. It was deposed that there was a dao in the hands of accused Kameswar Singh and an iron rod in the hands of accused Raja Singh. The witness further deposed that the motor cycle of the deceased Manoj Thakur was also damaged. The witness deposed that after the occurrence, both the accused persons fled away. It was deposed that there was a dao in the hands of accused Kameswar Singh and an iron rod in the hands of accused Raja Singh. The witness further deposed that the motor cycle of the deceased Manoj Thakur was also damaged. The witness deposed that after the occurrence, both the accused persons fled away. In cross, the witness stated that he did not see the deceased being assaulted by the accuseds. 5. PW-4 Ram Prabesh Thakur claims himself to be the eye witness and stated that on 25.08.2013 at about 10.30 p.m. while he was in his room, the deceased Manoj came in his motor cycle to the house and parked the same in front of the house and as he entered by opening the main gate suddenly the accused Raja Singh hit him with an iron rod on his head about 3 to 4 times and then when Manoj bent down his head, the other accused Kameswar Singh who was along with Raja Singh gave a dao blow at the back side of the head at the same place where the other accused had dealt the blow with an iron rod. 6. In cross, the witness stated that he saw the accused persons when he came out of his room hearing halla. The said witness further stated in his cross that his room opens to the other side and not towards passage, which can also be seen from the sketch map exhibited as Exhibit-8. 7. PW-5 Lalbabu Sahani also stated that on the day of the occurrence at 10.30 p.m, there was a quarrel between Kameswar and his wife about one hour prior to the incident. After the quarrel subsided, all the persons who came returned back to their respective houses. Thereafter, the deceased Manoj Thakur who had gone to the market had returned and as soon as Manoj entered the lane leading to the house on his motor cycle, the accused Kameswar Singh came out with a dao and his son Raja Singh with a rod in their hands and assaulted Manoj Thakur with the dao. 8. The medical opinion shows the following:- "Injuries:- 1. 8. The medical opinion shows the following:- "Injuries:- 1. Chop wound of size 17 cm x 5 cm x cranial cavity deep present obliquely over right side of head extending from right cheek to mid line posteriorly cutting the lobule of right pinna; underneath fracture of right temporal bone, matoid and upper portion of ramus of mandible (right side); 2. Chop wound of size 6 cm x 3 cm bone deep seen over right side of the head 3 cm below injury No.1 3. Incised wound of size 3 cm x 2 cm over left parietal scalp, bone deep; 4. Incised wound of size 2.5 cm x 1 cm over posterior aspect of left parietal scalp; 5. Incised wound of size 4 cm x 1 cm x bone deep over base of little, ring and middle finger, left palm, anteriorly; Membrane and brain: Cut injury over right temporal area of membrane and defused bilateral subdural haemorrhage. Intraventricular haemorrhage of brain seen" 9. All the injuries are incised wound and there is also an opinion by the doctor that all the injuries were caused by a sharp cut weapon and nothing else. From the nature of the injuries as well as evidence of the doctor, it can be concluded that all the injuries were caused by a sharp cutting weapon. 10. Although PW-4 claims to be an eye witness who had seen the occurrence but when we examine his statement under Section 161 before the police, it is noticed that before the police he had not stated so and had only stated that the accused Kameswar Singh and Raja Singh had fled away after inflicting cut injuries on the deceased. Further considering the location of the room of PW-4 as well as entrance of such room, it is difficult to believe that the said witness had actually seen the occurrence. But at the same time, it can be accepted that the witness had seen the accused Kameswar Singh with a dao in his hand and Raja Singh with an iron rod which cannot wholly be disbelieved. 11. But at the same time, it can be accepted that the witness had seen the accused Kameswar Singh with a dao in his hand and Raja Singh with an iron rod which cannot wholly be disbelieved. 11. The PW-2 Bhushan Thakur who was also a tenant in the same house had stated that when he came out of his house after hearing the sound, he saw that Manoj Thakur was lying with a cut injury on his neck and both accuseds were standing near Manoj where the accused Kameswar Singh was holding a dao and accused Raja Singh with an iron rod. From the said point of view, the evidence of PW-2 and PW-4 as well as that of PW-5 who also stated that the accused Kameswar Singh was seen with a dao and accused Raja Singh was seen with an iron rod in their hands, appears to be consistent. 12. In the given circumstance, if the accused Kameswar Singh was seen with a dao in his hand and accused Raja Singh was seen with an iron rod near the body of the deceased and all the witnesses had seen it immediately after the occurrence had taken place, leads us to a conclusion that circumstantially the two accused themselves must have assaulted the deceased. The evidence reveals that the accused Kameswar Singh was holding dao and the accused Raja Singh was holding an iron rod, whereas, the medical evidence reveals that all the five injuries including the two fatal injuries on the right side of the head of the deceased comprised of incised wound. Further the medical opinion rendered is that all the injuries could have been caused by a sharp cut weapon alone. 13. It being so, the only conclusion that can be arrived at is that all the injuries were caused by accused Kameswar Singh who was holding a dao in his hand. We further take note of that the accused persons took the plea of alibi by adducing the defence witness DW-1 Avinash Turha that at the time when the occurrence took place both the accused persons came to his house and stayed there. We further take note of that the accused persons took the plea of alibi by adducing the defence witness DW-1 Avinash Turha that at the time when the occurrence took place both the accused persons came to his house and stayed there. But again in their statement under Section 313 Cr.P.C., the accused Kameswar Singh stated that as the rent was overdue to the deceased, he went out in the morning to arrange for some money as demanded by the deceased but came back in the evening empty handed. He again went out as the deceased told him not to come back empty handed and as he could not arrange for the money he did not return home. There is an inconsistency in the evidence led by DW-1 and that of accused Kameswar Singh under Section 313 to the extent that DW-1 stated that Kameswar Singh and Raja Singh had stayed back in his house whereas, the same fact was not disclosed by the accused Kameswar Singh under 313 Cr.P.C. 14. As a false plea of alibi was taken by projecting it that the accused persons stayed back in the house of DW-1 on the night of the occurrence, we are of the view that in the circumstance as disclosed by the evidence of PW-2, 4 and 5, a chain of event is also complete. But again considering the nature of the injuries found as per the medical evidence and considering the fact that it was accused Kameswar Singh who was seen with a dao in his hand and there being no such injury on the deceased which may have been caused by an iron rod, we are of the view that it is the accused Kameswar Singh who had assaulted the deceased causing the fatal injuries on his body and it would be unsafe to conclude that the accused Raja Singh had also inflicted such injuries. Accordingly, we uphold the conviction of the accused Kameswar Singh under Section 302 IPC. As regards the accused Raja Singh, although it is the contention of Ms. Jahan, learned Additional Public Prosecutor that Section 34 IPC would be applicable to also bring Raja Singh within the purview of the offence, but we have noticed that the evidence on record does not disclose anything that the accused Raja Singh also participated in the assault on the deceased. Jahan, learned Additional Public Prosecutor that Section 34 IPC would be applicable to also bring Raja Singh within the purview of the offence, but we have noticed that the evidence on record does not disclose anything that the accused Raja Singh also participated in the assault on the deceased. Participation of the co-accused in the assault causing death being a requirement of law to bring such accused within the purview of Section 34 and in the absence of such circumstance as per the materials on record, we are unable to accept the contention that the accused Raja Singh be also convicted under Section 302 by invoking the provision of Section 34. 15. Accordingly, we set aside the conviction of the accused Raja Singh by the judgment and order dated 15.06.2016 of the learned Sessions Judge, Dibrugarh in Sessions Case No.14/2014. 16. The appeal in respect of Kameswar Singh stands dismissed and the appeal in respect of Raja Singh stands allowed. LCR be sent back.