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2019 DIGILAW 870 (GAU)

Hemo Gogoi v. State Of Assam

2019-08-02

ACHINTYA MALLA BUJOR BARUA, HITESH KUMAR SARMA

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JUDGMENT : A.M. Bujor Barua, J. Heard Mr. R. Sarma, learned Amicus Curiae along with Mr. A. Dey, learned counsel appearing for the appellants and Mr. TK Mishra, learned Additional Public Prosecutor appearing for the State of Assam. Although notice had been duly served on the informant respondent No.2, but none appears for the respondent No.2. 2. This is an appeal against the judgment and order dated 27.07.2017 of the learned Sessions Judge, Sivasagar, passed in Sessions Case No.14(S-S)/2015, whereby the accused appellant was convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/- and in default of payment of fine, to undergo further simple imprisonment for 01(one) month. Being aggrieved, the appellant preferred this appeal. 3. An ejahar dated 28.04.2014 was lodged before the Officer-in-Charge of Cherekapar Police Out Post by Durga Gogoi inter-alia stating that around 8.00 a.m. on 28.04.2014, Hemo Gogoi, son of late Haimora Gogoi, a resident of Bokshu Bokul village had killed Prasanta Gogoi, son of Sri Karneswar Gogoi, also a resident of the same village by hacking him with a dao. Following the resultant investigation, the accused Hemo Gogoi was charged of having caused death of Prasanta Gogoi thereby committing an offence under Section 302 of the IPC. 4. The informant Durga Gogoi while deposing as PW-3 had stated that in the morning when the occurrence took place, he was working in the backside of his house. After hearing some scream from the front side, he came to the place of occurrence and saw that Prasanta Gogoi was lying injured on the road. He also saw accused Hemo Gogoi running away from the place of occurrence with a dao in his hand and entered the jungle. When he came near Prasanta Gogoi, he found him dead. In cross examination, to a suggestion, PW-3 stated that it is not a fact that he had not seen the accused running away with a dao in his hand after the occurrence and that he had adduced false evidence. 5. Pw-2 Alpit Gogoi in his evidence stated that when the occurrence took place about 12 months back, he was a student of Class-III and was waiting in front of his house for going to school. He stated that the deceased was his uncle in relation, being the younger brother of his father. 5. Pw-2 Alpit Gogoi in his evidence stated that when the occurrence took place about 12 months back, he was a student of Class-III and was waiting in front of his house for going to school. He stated that the deceased was his uncle in relation, being the younger brother of his father. He stated that his brother, who was riding in the scooty of Prasanta from Prasanta s house, came to the place. When Prasanta stopped the scooty in front of their neighbour Puspa Hazarika s house in order to enable his brother to get down from the scooty, the accused Hemo Gogoi hacked Prasanta Gogoi with a dao, whereupon Prasanta Gogoi fell down along with his scooty. At that time, his aunt, being the sister of his mother, namely Parinita Gogoi tried to hold the accused and in doing so, the tip of the dao had hit the head of Parinita. In cross examination, the witness stated that he did not see the accused hacking Prasanta Gogoi with a dao. 6. Pw-4 Parinita Gogoi, who was referred to by PW-2 Alpit Gogoi in her deposition stated that Prasanta Gogoi was the elder brother of her husband. The occurrence took place around 8.15 a.m. on 24.04.2014, while they were standing on the road to see off PW-2 Alpit Gogoi, who goes to school in Prasanta Gogoi s scooty and saw the accused hacking Prasanta Gogoi with a dao from behind. When the witness offered resistance, the accused also injured her on her head. In cross examination, PW-4 to a suggestion stated that it is not a fact that she was not present when Prasanta Gogoi was inflicted with injury and that she had not seen the occurrence. 7. The other prosecution witnesses all arrived at the place of occurrence after it had taken place and we do not find their evidence to be vital for any other aspect. 8. Pw-1 Dr. Nirmalya Choudhury, who had conducted the postmortem examination on the deceased had stated that the following injuries were found on the deceased:- INJURY (i) One deep cut mark, size 20 cm x 8 cm x 4 cm over left side of fact including mandible which was cut at the left level of distal 3/4 th part caused by sharp cutting weapon and bleeding present. (ii) One deep cut mark over left side of the neck at the level of 4 th cervical vertebrae which was also cut. It is included external jugular artery and vein. Size 8 to 10 cm x 6 to 8 cm x 2.4 cm. It was fresh and caused by sharp cutting weapon. (iii) A cut mark over belly, below the chest which was 4 cm x 2 cm x 1 cm. It was also caused by sharp edge weapon but not much deeper which did not involve viscera and ribs or bones. Size 2 cm x 2cm. 9. Although PW-2, who is a child witness and was present at the place of occurrence when it took place is an eye witness to the occurrence having stated that the accused Hemo Gogoi had hacked the deceased Prasanta Gogoi with a dao, but Mr. Sarma, learned Amicus Curiae draws our attention to his statement in cross examination, where he stated that he had not seen the accused hacking Prasanta Gogoi with a dao. But on the other hand, PW-2 confirms the presence of PW-4 in the place of occurrence along with him and secondly, also confirms that he being a student of Class-III was waiting in front of his house for going to school and that he goes to school in the scooty of the deceased Prasanta Gogoi. PW-4 Parinita Gogoi, whose presence had been confirmed by PW-2 in her deposition also stated that around 8.15 a.m. on 24.04.2014 while they were waiting on the road to see off PW-2 Alpit Gogoi to school, who goes in the scooty of Prasanta Gogoi, she saw the accused hacking Prasanta Gogoi with a dao from behind. Although the witness further stated that while she offered resistance, the accused also injured her on her head, but we do not go to the said aspect in the absence of any injury report of PW-4. Although the witness further stated that while she offered resistance, the accused also injured her on her head, but we do not go to the said aspect in the absence of any injury report of PW-4. But the part of the evidence that PW-4 was present at the place of occurrence has been corroborated by PW-2 and her statement that she saw that the accused had hacked the deceased Prasanta Gogoi with a dao from behind had not been confronted by the defence in any manner, other than a mere suggestion in cross examination that it is not a fact that she was not present when the deceased Prasanta Gogoi was inflicted with the injuries and that she had not seen the occurrence. 10. We have examined the evidence of the Investigating Officer PW-15 and we find that there is no suggestion to the Investigating Officer in cross examination that PW-2 and PW-4 had not stated as such before the police. In the circumstance, we are to accept the evidencein-chief of PW-2 and PW-4. As PW-4 had deposed by claiming to be an eye witness, who was present at the place of occurrence and had seen the accused hacking the deceased with a dao from behind and the presence of PW-4 in the place of occurrence having been corroborated by PW-2, in the absence of any confrontation to such evidence, we are to accept the eye witness version of PW-4 and arrive at a conclusion that it is the accused alone, who had inflicted the injuries on the deceased, which had caused his death. 11. We have also taken note of the injuries on the deceased and find that out of the three injuries, two of the injuries were deep cuts around the head portion, one being on the face and other being on the left side of the neck. Both the parts of the body being vital parts and the injury having been caused by a sharp cutting weapon, we are of the view that from the nature of the injuries caused, an intention on the part of the accused appellant to cause death of the deceased can be ascertained. Both the parts of the body being vital parts and the injury having been caused by a sharp cutting weapon, we are of the view that from the nature of the injuries caused, an intention on the part of the accused appellant to cause death of the deceased can be ascertained. As the intention to cause death can be established from the evidence on record, we are of the view that the act of the accused appellant in causing the injuries to the deceased comes within the purview of Section 300 IPC. The evidence on record does not reveal of any mitigating circumstance, so as to bring the act of the accused appellant within any of the four exceptions to Section 300 IPC. 12. In the absence of any mitigating circumstance, we have to hold that the act of the accused appellant amounts to a culpable homicide amounting to murder. Accordingly, we do not find any infirmity in the judgment of the learned Sessions Judge, Sivasagar dated 27.07.2017 in Sessions Case No.14(S-S)/2015 convicting the accused appellant of an offence under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/-, in default of payment of fine, further to undergo simple imprisonment of 01(one) month. Accordingly, the judgment and sentence passed by the learned Sessions Judge in Sessions Case No.14(S-S)/2015 is uphold. 13. The stands dismissed. 14. Send back the LCR along with a copy of this judgment immediately. 15. Before parting with the record, we appreciate the valuable service rendered by Mr. R. Sarma, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/- as legal fees be paid to him by the High Court Legal Service Committee upon production of a copy of this judgment and order.