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2019 DIGILAW 593 (GAU)

Bhaity Mudi @ Miri v. State of Assam

2019-05-13

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : A.M. Bujor Barua, J. Heard Ms. Meghali Barman, learned Amicus Curiae for the appellant. Also heard Ms. S Jahan, learned Additional Public Prosecutor, Assam. 2. Office Note indicates that notice upon the respondent No.2/informant had been duly served as per the Flag X appearing in the records. Inspite of such service, none appears for the respondent No.2/informant. 3. An ejahar dated 09.02.2014 was lodged by Smti Matoo Modi before the Officer-in-Charge of Dergaon Police Station, inter alia stating that on 09.02.2014 at about 7 P.M., after she returned from the market the accused person entered her house and upon seeing her husband Dinesh Modi hurling abuses at her had killed him by striking him on his head with an axe. 4. The informant deposed herself as the PW-1 and stated that the accused person Bhaity Mudi is her younger brother and on the given day her husband was sitting inside the house consuming cannabis, while she was making roti in the kitchen after fetching water from the tube well, at that time her husband asked for a glass of water and after she had provided him with the water, her husband uttered that her younger brother Bhaity Mudi had strucked him with an axe. She deposed that as she screamed, the younger of the elder brother of her husband arrived at the place and her husband was lying on the floor in an unconscious state and blood fell on the floor. She also deposed that her younger brother came to her house at 6P.M and had his meal and the incident took place after he had his meal. She further deposed that at the time of the incident, her husband was hurling abuses on her and being unable to bear the abuses, the accused had struck him with an axe. In cross, PW-1 in response to a suggestion stated that it is not a fact that in course of her statement before the police, she did not state that her husband had stated that her younger brother had strucked him with an axe. PW-1 also confirms in her cross examination that on the day of the incident a quarrel broke up between her and her husband. 5. PW-1 also confirms in her cross examination that on the day of the incident a quarrel broke up between her and her husband. 5. PW-2, who happened to be a neighbour stated in his examination-in-chief that he saw the accused person coming out by breaking open the fence in the house of the deceased, Dinesh Modi. 6. PW-3 another neighbor in his deposition stated that he heard PW-2 saying “Who is it? Who is it. Stop, stop.” whereupon he came out of the house and saw the accused Bhaity Mudi was running away towards the kiln. In cross-examination, PW-3 stated that the deceased Dinesh Modi and accused Bhaity Mudi used to live together and they had a cordial relationship. 7. PW-5, who was one of the elder brother of the deceased in his deposition had stated that he lived in the other part of the house, where the deceased Dinesh Modi stayed and while he was having his meal he heard that the deceased screamed “Bhaity Mudi is killing me” and thereupon he went to the room of the deceased and saw that the deceased was lying on the floor. He further deposed that the accused had fled from the place before he reached. Further in cross, the PW-5 had stated that when he arrived at the place of occurrence, the deceased Dinesh Modi was not capable of speaking. 8. PW-6, Dr. Rupak Bora, who had conducted the post mortem examination, amongst others found the following injuries on the deceased: “Incised wound over frontal part of the scalp of 8 x 2 cm x bone deep. On section fracture of frontal bone & coming out of brain matter seen. Incised wound over occipital part of the scalp of 6 x 2 cm x bone deep. Incised wound over back side of neck of 6 x 2 x 0.5 cm seen.” 9. The Investigating Officer, PW-7 stated that the PW-1 had not told him that the accused had assaulted her husband with an axe. He further stated that the PW-5 also did not state before him that he had heard Dinesh Modi crying “Bhaity Mudi is killing me”. 10. The Investigating Officer, PW-7 stated that the PW-1 had not told him that the accused had assaulted her husband with an axe. He further stated that the PW-5 also did not state before him that he had heard Dinesh Modi crying “Bhaity Mudi is killing me”. 10. From the suggestions made in the cross-examination to PW-1 as well as from the depositions of the Investigating Officer, PW-7 it can be understood that the statement of the PW-1 in her examination-in-chief that her husband had uttered that her younger brother Bhaity Mudi had struck him with an axe is disbelievable. Further when we examine the statement of PW-1 under Section 161 Cr.P.C., we find that there is no such statement being made by her before the police. 11. Similarly, PW-5 in his cross examination had stated that the deceased was not capable of speaking and further the Investigating Officer also stated in his deposition that PW-5 had not stated before him that he had heard the deceased Dinesh Modi crying that “Bhaity Mudi is killing me”. From the statement of PW-5 in cross as well as from the deposition of PW-7, the statement of dying declaration being made by the deceased before the PW-5 is also disbelievable. 12. Regarding the presence of the accused at the place of occurrence when the incident took place, PW-1 had stated that as she screamed, the younger of the elder brother of her husband arrived and when the PW-1 asked that the accused be apprehended, he fled from there by crossing over the fence of the house. She also deposed that her younger brother who is the accused came to her house around 6 PM and had meal there and the incident had taken place after he had the meal. She also deposed the at the time of the incident her husband was hurling abuses at her and on being unable to bear that the accused had struck her husband with an axe. In cross-examination, PW-1 had stated that on the given day a quarrel had broken out between her and her husband. With regard to the arrival of the younger of the elder brother of her husband, we also take look at the deposition of PW-5 who also claimed the dying declaration that firstly PW-5 live in the other part of the house, where the deceased and his wife used to live. With regard to the arrival of the younger of the elder brother of her husband, we also take look at the deposition of PW-5 who also claimed the dying declaration that firstly PW-5 live in the other part of the house, where the deceased and his wife used to live. But PW-5 specifically stated that the accused had fled from the place of occurrence before he had reached the place. If the youngest of the elder brother of the deceased had reached the place of occurrence after the accused had fled away, the evidence of PW-1 that after the arrival of the youngest of the elder brother of the husband she asked him to apprehend the accused, the accused had fled away by crossing over the fence is also found to be disbelievable. Further as regards the evidence of PW-1 that at the time of the incident her husband was hurling abuses on her and being unable to bear such abuses, the accused had struck her husband with an axe, we find that such statement on the part of PW-1 cannot be construed to be an eye witness count and nor it is revealed from where the PW-1 made such statement. 13. Further we have the evidence of PW-2 and 3 who had seen the accused person fleeing away from the house of the deceased by crossing over the fence. Upon a thorough scrutiny of the evidence of PW-1, 2, 3 and 5 it is not discernible that the accused was present at the place of occurrence immediately before the occurrence had taken place or to that effect immediately after it had taken place. Neither the concept of last seen together can be brought in between the accused and the deceased inasmuch as that all along the PW-1 being the wife was present and hence even Section 106 of the Evidence Act will not be applicable so as to extract an explanation from the accused. 14. In view of the above, we are unable to accept that the prosecution had established its case beyond all reasonable doubt that it is the accused alone, who had committed the offence of causing the three incised wound injuries on the head of the deceased with a sharp cutting weapon. 14. In view of the above, we are unable to accept that the prosecution had established its case beyond all reasonable doubt that it is the accused alone, who had committed the offence of causing the three incised wound injuries on the head of the deceased with a sharp cutting weapon. Accordingly, we are unable to uphold the conviction of the accused appellant under Section 302 of the IPC as well as the sentence of rigorous imprisonment for life as well as the fine of Rs.50000/- in default thereof, a further simple imprisonment for six months. 15. Accordingly both the convictions as well as the sentence of the accused appellant are set aside. The appellant is set at liberty forthwith, if he is not wanted in connection with any other case. 16. The compensation of Rs.50,000/- awarded by the learned Sessions Judge, Golaghat is retained and the same be paid to the victim as directed in the said judgment, if not already paid. 17. Appeal stands allowed to the extent indicated hereinabove. 18. Before parting with the record, we appreciate the valuable service rendered by Ms. Meghali Barman, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/- as legal fees be paid to her by the High Court Legal Service Committee upon production of a copy of this judgment and order. 19. Send back the LCR.