Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 942 (GAU)

Sanjib Kr Ghosh v. State of Assam

2019-08-27

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. This appeal is preferred against the judgment and order dated 28.12.2017 passed by the learned Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 30/2005 under Section 302 IPC whereby the accused has been convicted RI under Section 304 Pt-II IPC for seven years and a fine of Rs.500/- in default to undergo further RI for a period of two months. 2. I have heard Mr. R Islam, learned counsel for the appellant and Mr. D Das, learned Additional Public Prosecutor, Assam. 3. The prosecution case in brief is that an FIR was lodged on 20.06.2013 stating that the present accused person and his wife took the deceased to their house and tides her with a "Gamosa" and assaulted her repeatedly as a result of which she died. Till the filing of the FIR the deceased was in serious condition with injury on her person. The said FIR was registered as Dhekiajuli PS Case No.243/2013 under Section 302/34 IPC and in the meantime the victim died and after completion of investigation, charge-sheet was submitted against the present accused person and his wife Eti Ghosh under Section 302/34 IPC. 4. Both the accused person faced the trial and denied the charges under Section 302/34 IPC that was framed against them. The plea of defence is of total denial. Statement of the accused person was also recorded under Section 313 Cr.P.C. At the conclusion of the trial, the accused/appellant was convicted as aforesaid and other accused was acquitted from the charge. Challenging the aforesaid order of conviction, the present appeal has been preferred. 5. The learned counsel for the appellant has advanced his argument basically on the point that it is the case of no eye witness to the occurrence and based upon the extra judicial confession made by the accused to some of the witnesses which is not at all safe to convict the accused person. It is stated that the informant has categorically changed the version while giving evidence which is inconsistent to the allegation made in the FIR. It is stated that the informant has categorically changed the version while giving evidence which is inconsistent to the allegation made in the FIR. It has also been pointed out that the evidence of PW-5, who has turn hostile has stated that it was her husband i.e. the brother of the present accused person who apprehended the deceased in their house while she went to commit theft in the house and tide her in a Guava tree and also gave blow/slaps which is sufficient to absolve the present accused person. 6. Learned Public Prosecutor has submitted that the evidence on record is sufficient to implicate the present accused person and there is no reason to disbelieve the extra judicial confession made by the accused/person before the witnesses, even living apart the evidence of the PW-1/informant. On the other hand, it is submitted that the injury that was inflicted upon the victim sufficient to cause death of a person as has been opined by the Medical Officer. Accordingly, it has been contended that the learned trial court has discussed all about the aspect that has been raised in the present appeal and there is no scope to interfere into the findings of the trial court. 7. I have considered the rival submission of the learned counsel for both the parties and also gone through the evidence on record. 8. On a careful scrutiny of the evidence on record it is found that on the fateful day in the morning hours the accused went to their house to inform that the victim came to the house of PW 1 to PW-3 to steal iron pipes and the accused tide her with a tree by "gamosa" and electric wire and beaten her, as a result of which she fell down. All these three witnesses accordingly went to the house of the accused person and found the victim died with injury on her legs and her body was tied with a flexible wire and "gamosa" to a Guava tree in the compound of the house of the accused person. All these three witnesses accordingly went to the house of the accused person and found the victim died with injury on her legs and her body was tied with a flexible wire and "gamosa" to a Guava tree in the compound of the house of the accused person. It is to be noted that the evidences of PW-1/informant is different to the aspect that the accused came to their house and took the victim to their house but the fact remains that the victim was found inside the campus of the house of the accused person at the time where all these PW-1, PW-2 and PW-3 arrived in their house with injury on her person. 9. The fact that the victim was found dead in the house of the accused is also corroborated by the evidence of PW-5 and PW-6 both of them have stated that on the day of occurrence when they saw gathering in front of the house of the accused, Sanjib Ghosh they went there and saw that a girl was lying dead in half necked condition inside the campus of the house of the accused. They also saw mark of injury on the body of the deceased. According to PW-5, the accused told the police that when the woman came to the house she was apprehended and beaten up. The police seized the flexible wire by which the deceased was tied with the tree and one gamosa and a lathi. Even though all these witnesses from PW-1 to PW-6 (except PW-4) cross-examined at length but things remains that the victim was found lying dead in the house of the accused person with injury on her person. That aspect of the matter is fully proved. 10. So far as the extra judicial confession is concerned it appears that this PW-2 and PW-3 (even we skip evidence of PW-1) neighbour of the accused person they were informed by the accused person himself about the assault made by him to the victim when she came for stealing purpose in the house. Such a confessional statement made voluntarily by the accused to a neighbour cannot be brushed aside to be not admissible, where there is no occasion on the part of this witness who falsely implicated the accused for the incident. Such a confessional statement made voluntarily by the accused to a neighbour cannot be brushed aside to be not admissible, where there is no occasion on the part of this witness who falsely implicated the accused for the incident. The test to be made regarding acceptance of extra judicial confession is to appreciate as to whom such confessional statement has been made and at what point of time and under what circumstances. The accused went to the house of the witnesses and appraised them that he has committed the mistake against the deceased as she went to their house to steal iron pipe. Similarly, the other witnesses, PW-6 has also stated that he found the deceased lying dead inside the house of the accused person with injury on her person. People gather there also reported that the accused has killed the deceased by assaulting with a lathi. Although, he is not an eye witness to the occurrence but he has supported the crucial aspect that the dead body of the deceased was found inside the house of the accused person with injury on her person. The learned trial court has also take note on all these aspects while arriving at the decision. The evidence of PW-5 and PW-7 of course is of no use to prosecution as all of them turned hostile and they have no knowledge of occurrence except the proposition that the dead body of the accused was found inside the campus of the house of the accused. 11. On the next, the evidence of PW-4 would reveal that the victim sustained one fracture with dislocation of cervical vertebrae 2nd Spinal cord is lacerated at that level and some injury on both leg mainly on calf region, sixe is approximately 15 x 7 1/2 cm. Bruise also seen on left side of forehead, size is about 5cm x 5 cm. No ligature mark seen over around the neck. According to the Medical Officer death was due to fracture with dislocation as a result of the injury sustained. The above fracture is sufficient to cause the death of a person. PW-5 is the Circle Officer who made the inquest report (Exhibit-3) and he also found certain mark of injury on the leg of the deceased but his evidence is silent so far as the injury on other parts of the body. 12. The above fracture is sufficient to cause the death of a person. PW-5 is the Circle Officer who made the inquest report (Exhibit-3) and he also found certain mark of injury on the leg of the deceased but his evidence is silent so far as the injury on other parts of the body. 12. The learned trial court has relied upon the extra judicial confession and other incriminating circumstances against the accused person as discussed above along with the seizure of article at the place of occurrence and the opinion of the Medical Officer that such type of injury to the victim was inflicted because of unauthorised entry to their house and suspicion that the woman have entered into their house to steal iron pipe. The learned trial court also held that it is not a case of murder in view of the entire facts and circumstances, the conduct of the accused person also considered that he may not have the intention to kill the deceased person only because of such unauthorised entry of their house such an injury was inflicted upon the deceased and as a result of which she died. 13. Even if, we can accept the fact that one have to protect the property from any miscreants but while doing so one should not exceed the extent to inflict serious injury to a person. In the instant case, the accused at best could have informed the police that the woman has entered into their house with evil intention to commit theft but instead he has dealt with her in an undue manner. The victim died due to inflicted injury otherwise the deceased could have survived if proper treatment is provided in time. Such conduct of the appellant cannot be considered of civilized person. There is however, no infirmity in the judgment of the learned trial court while arriving at the guilt of the accused person under Section 304 Pt-II instead of 302 IPC. 14. Such conduct of the appellant cannot be considered of civilized person. There is however, no infirmity in the judgment of the learned trial court while arriving at the guilt of the accused person under Section 304 Pt-II instead of 302 IPC. 14. In the given facts and circumstances, I found no infirmity and illegality in the order passed by the trial court accordingly the conviction is rendered by the court is hereby sustained but however, considering all entirety of the matter that the accused may not have the intention to commit murder of the deceased and has committed such assault due to unauthorised entry of the woman, while maintaining the conviction sentence is reduced to 3 years with fine as imposed by the trial court. 15. Accordingly, the appeal stands disposed of. 16. Send back the LCR along with a copy of this order.