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2019 DIGILAW 803 (GAU)

Dipak Nayak v. State of Assam

2019-06-28

ACHINTYA MALLA BUJOR BARUA, SONGKHUPCHUNG SERTO

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JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. K. Goswami, learned Amicus Curiae for the appellant. Also heard Mr. M. Phukan, learned Additional Public Prosecutor for the respondent State. 2. Order of 24.06.2019 shows that notice was accepted to be served on the respondent No.2 as per the report of the Officer-in-Charge of Dhola Police Station, but none appears for the said respondent. 3. An ejahar dated 14.12.2015 was lodged by Bana Nayak inter alia stating that on 14.12.2015 at around 5 to 6 a.m., his younger brother Dipak Nayak had killed his nephew Babul Nayak by striking him with an axe inside Babul's house. Accordingly, the accused was charged of an offence under Section 302 of the IPC for having intentionally caused the death of Babul Nayak by committing a murder. 4. Pw-1 Bana Nayak who is the informant in his deposition stated that on the day of the occurrence at around 6 am while he was preparing tea, he heard the pW-6 crying in the veranda of their house and that he saw the accused coming out of the room with an axe in his hand. He also deposed that later on the police recovered the axe from the possession of the accused. In cross, PW-1 stated that the deceased and the accused resided in the same house and there are two houses within the same courtyard. He also stated that he heard that the deceased used to take liquor and after consuming it he used to quarrel. The witness also stated that after hearing the hue and cry of the wife of the deceased, the other family members of their family came out of the house and subsequently the accused came out. 5. Pw-6 who is the wife of the deceased in her examination in chief stated that in the morning of the day of the incident she went out to have her bath and her husband was sleeping in the house. When she came back and tried to wake up her husband, she found her husband with blood and injuries on his person. She also stated that the accused Dipak Nayak was standing nearby with an axe. In cross, PW-6 stated that she did not hear any sound while she was taking her bath. She also stated that in their house, there are two rooms. She also stated that the accused Dipak Nayak was standing nearby with an axe. In cross, PW-6 stated that she did not hear any sound while she was taking her bath. She also stated that in their house, there are two rooms. To a suggestion, the witness stated that it was not a fact that the accused had not killed her husband. 6. Pw-8 Dr. Manoj Duarah, who had conducted the post mortem examination, in his deposition stated that the following injuries were found in the body of the deceased:- Injuries: 1. A lacerated wound measuring 4 cm X 2 cm X 1 cm over the right temporal region of the scalp with active bleeding. On dissection of the scalp, there was epidural haemorrhage and subdural haemorrhage in the right temporal region of scalp of sixe 10 cm, oval in shape. There was cerebral laceration seen on the right temporal area below the fractured temporal bone. 2. There was fracture of nasal bone. Other organs were normal and healthy. 7. Pw-8 gave his opinion that the death took place due to coma as a result of shock and haemorrhage caused due to cranio-cerebral injuries which was ante mortem in nature and may have been caused by a sharp weapon or by a blunt force impact. 8. Pw-9 the Investigating Officer, in his evidence stated that he weapon used in the offence being the axe was seized and was exhibited as Exbt-4, but no blood stain was found in it. The accused in his statement under Section 313 Cr.P.C. amongst others, stated that it is true that on the date of the occurrence he was in the house of Bana Nayak. Apart from it, the accused made a general denial under Section 313. 9. We do not mention the evidences being led by the other witnesses as we do not find it to be relevant for the purpose, where the prosecution case is based upon the evidence of PW-1, PW-6, PW-8 and PW-9, which according to them leads to a circumstantial evidence where the chain of events is complete to show that it is the accused Dipak Nayak alone who had committed the offence. 10. 10. Pw-1 in his evidence in chief clearly stated that upon hearing the cries of PW-6 Rakhi, who is the wife of the deceased, he went out of his room and saw that the accused was coming out of the room with an axe in his hand, which again had been confirmed in cross by stating that the other family members came out of the house and subsequently, the accused too came out. No suggestion was made by the defence before the PW-9 Investigating Officer that the witness had not stated so before him at the time of investigation. 11. Pw-6 who is the wife of the deceased stated that before she proceeded for her bath the deceased was sleeping in the room, but when she returned back, she saw the deceased in a pool of blood lying dead and the accused Dipak Nayak was standing next to him with an axe in his hand. The said evidence of PW-6 was not confronted by the defence in their cross, nor any suggestion was made to the PW-9 that the witness had not stated so to him during investigation. 12. Consequently, we are confronted with a situation where the accused was either seen coming out of the room with an axe in his had where the deceased was lying dead in a pool of blood and where the accused himself was seen with an axe in his hand standing next to the deceased who was lying dead in a pool of blood. In the aforesaid circumstances the chain of event leading to the guilt of the accused linking him with causing death to the deceased is complete without any break. 13. The accused in his statement under Section 313 Cr.P.C. had taken the stand that he was present in the house of PW-1 Bana Nayak, on the date when the occurrence took place. The house of PW-1 is within the same courtyard where the house of the deceased is also located. The stand taken by the accused under Section 313 also does not dislodge the circumstance as indicated above where the chain of event is complete. 14. The evidence of PW-9 Investigating Officer shows that the weapon in the offence was seized from the accused but it did not contain any blood stain. The stand taken by the accused under Section 313 also does not dislodge the circumstance as indicated above where the chain of event is complete. 14. The evidence of PW-9 Investigating Officer shows that the weapon in the offence was seized from the accused but it did not contain any blood stain. The aspect that it did not contain any blood stain cannot on its own be also a mitigating factor as it is also the opinion of the doctor that the injuries on the deceased could also have been caused by the blunt side of the axe. 15. As regards the aspect of causing death by hitting on the back side of the head with the blunt side of the opinion, we rely on the pronouncement of the Supreme Court in State of Madhya Pradesh -vs- Kalicharan & Ors, decided on 31.05.2019 wherein, it was held that hitting on a vital part with the blunt side of the weapon also shows the intention of the accused to cause death. The aforesaid aspect that the death was caused by the blunt side of the axe also cannot be a mitigating factor in favour of the accused. 16. In view of the above we are in agreement with the conclusion arrived at by the learned Sessions Judge, Tinsukia by the judgment dated 23.11.2016 wherein in paragraph-30 the circumstances which lead the learned Sessions Judge arriving at conclusion of there being a circumstantial evidence to show that the chain of events is complete indicating the guilt of the accused and in paragraph-31, wherein based upon such circumstantial evidence a view was taken that the Court can convict a person without establishing motive. 17. Accordingly, we uphold the judgment dated 23.11.2016 of the learned Sessions Judge, Tinsukia in Sessions Case No.20(T)/2016, convicting the accused appellant under Section 302 IPC and sentencing him to rigorous imprisonment for life and payment of fine of Rs.1,000/- in default thereof a further rigorous imprisonment for six months. 18. As provided under Section 357(A) read along with the notification dated 01.02.2019 issued by the Secretary to the Govt. of Assam, Home & Political Department, the victim is awarded a compensation amounting to Rs.5,00,000/- (Rupees Five Lakh) to be paid by the Legal Services Authority upon proper verification by the learned counsel for the appellant. The appeal stands accordingly dismissed. Send back the LCR.