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2019 DIGILAW 963 (GAU)

Rajen Ngatey v. State of Assam

2019-08-29

M.R.PATHAK, SANJAY KUMAR MEDHI

body2019
JUDGMENT : Sanjay Kumar Medhi, J. 1. This appeal, which is preferred from Jail, is directed against the judgment and order dated 19.01.2017 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 60 (JM) of 2012. By the impugned judgment, the appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life with fine of Rs. 20,000/- (Rupees Twenty thousand) in default of payment of fine, to undergo imprisonment for another 3 (three) months. 2. A brief narration of the facts of the case is given herein-below:- An Ejahar was lodged by one Sri Dipak Ngatey alleging that at 8:00 pm on 11.04.2011 while his father Sadaram Ngatey was returning from his daughter's house, the accused appellant namely Rajen Ngatey, who was waiting in ambush, had cut the jugular vein of his father with a sharp weapon. Thereafter, when the informant, who was an eye witness to the incident, had come near his father, the accused appellant came to assault him also but somehow the informant could escape from his clutches. It has further been alleged that the accused appellant had fled away from the place of occurrence after cutting his father. The dead body of the father was lying in the police station. 3. The investigation was completed and Charge-sheet submitted. Since the offence under Section 302 IPC is exclusively triable by the Court of Sessions, the learned SDJM, Majuli vide order dated 01.06.2012 had committed the case to the Court of the learned Sessions Judge, Jorhat. 4. The prosecution examined 13 Nos. of PWs including the informant as PW-7, whereafter the accused person was also examined under Section 313 of the Cr.P.C. 5. After considering the materials on record, the learned Sessions Judge, Jorhat has passed the impugned judgment of conviction. 6. We have heard Mr. T.R. Sarma, learned counsel appearing as Amicus-Curiae. We have also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam and Mr. J. Payeng learned counsel has appeared with the leave of this Court for the informant and he assisted the learned Additional Public Prosecutor. 7. Mr. Sarma, learned Amicus-Curiae, has submitted that the impugned judgment is not sustainable in as much as the materials before the Court were not sufficient to come to the conclusion that the accused appellant was guilty of the offences alleged against him. 7. Mr. Sarma, learned Amicus-Curiae, has submitted that the impugned judgment is not sustainable in as much as the materials before the Court were not sufficient to come to the conclusion that the accused appellant was guilty of the offences alleged against him. It is submitted that there are inherent inconsistencies in the depositions and in view of the same, the impugned judgment of conviction and sentence could not have been passed. 8. To appreciate the submissions, let us examine the materials before us including the depositions, Seizure List, PM report and FSL report. We have carefully perused the other materials on record which were called for. 9. PW-1 Sri Ajit Ngatey is the nephew of the deceased Sadaram Ngatey. He deposes that on the fateful day he was working inside the house when one Smt. Dumuni Gum from another village had come to his village raising hue and cry and informed that the accused appellant had cut Sadaram on the road in front of the house of the appellant. Hearing the same, PW-1 claimed to have rushed to the place of occurrence and found his uncle with cut injury on his neck. The body was found in front of the house of the accused appellant. The matter was informed to the police and he had noticed that the accused appellant with all other members of the house had fled away. PW-1 claimed to have met Smt. Dumuni Gum, who had informed him that she had witnessed the incident. The same information was also given by one Sri Nipen Payeng as well as Dipak Ngatey and that the accused appellant had also tried to inflict injuries upon them. The night was said to be moonlit night, however, with some clouds and PW-1 is one of the signatories in the Inquest Report. The said PW-1 was cross-examined in which he had admitted that he was also detained in the police station and confined for some time. 10. PW-2 Sri Nilomoni Noroh is the VDP Secretary of the concerned village. He deposes that he did not see the incident but PW-1 had informed him over telephone regarding the incident whereafter he went to the place of occurrence and noticed the dead body of the deceased Sadaram Ngatey with cut injury on his neck, lying on the road in front of the house of the accused appellant. He deposes that he did not see the incident but PW-1 had informed him over telephone regarding the incident whereafter he went to the place of occurrence and noticed the dead body of the deceased Sadaram Ngatey with cut injury on his neck, lying on the road in front of the house of the accused appellant. The matter was informed to the police and he had also signed the Inquest Report and the Seizure List. 11. PW-3 is one Dhan Das, who deposes that on 12.04.2011, accused appellant had appeared at Bongaon Out-post with a dao which resembles a Khukri. He claims that the accused appellant said that he had come there, after cutting someone and this statement was made at the police station. The said PW-3 had signed in the Seizure List by which the dao was seized as material Ext.1. He further states that the accused appellant had confessed in the police station regarding the commission of the offence. 12. In the cross-examination, PW-3 further admits that he did not see the accused at the time when he had entered into the police station with the dao and it was only the police who had shown the dao to him. 13. PW-4 is one Ranjita Bania, who deposes as that of PW-3 and she was present when the dao was seized in the police station. This witness, however, negates the suggestion given of not seeing the accused coming to the police station with the dao. 14. PW-5 is Dipak Ngatey @ Tnate, who is the son of the deceased. On the fateful day, he had accompanied his father (deceased) to his elder sister's house and both were returning together, however, there was a little distance between them. He deposes that when his father reached near the house of the accused appellant, the accused appellant had suddenly come out and cut the neck of his father with a mit dao. He claims to have seen the incident very clearly as he was only at a distance of 20 feet from his father. In fact, he further states that the accused appellant had also tried to attack him with the dao after hitting his father but he ran away and saved his life. He had identified material Ext.1, the weapon in question in the Court. In fact, he further states that the accused appellant had also tried to attack him with the dao after hitting his father but he ran away and saved his life. He had identified material Ext.1, the weapon in question in the Court. He deposes that after witnessing the accused appellant hitting his father with the mit dao/khukri, his father had fell down on the ground in severely injured condition and when he went near his father at that moment, the accused appellant came towards him and tried to attack him also. As his father died on the spot, the said PW-5 had lodged the FIR. He is also one of the signatories in the Seizure List. He, however, submits that material Ext.1 was seized from the place of occurrence. On the suggestion that material Ext.1 was handed over by the accused appellant to the police, the said PW-5 deposes that he was unaware of the same. Though another suggestion was put to the said witness that his father had gone inside the house of the accused appellant and admitted to commit rape upon his wife, the same was negated by the said witness and further stated that there was no altercation which led to the incident. It is the accused appellant, who had cut his father which was clearly witnessed by the said PW-5. 15. PW-6 Sri Bogi Ngatey, is the wife of the present appellant accused. She deposes that she had accompanied her husband to the police station with the dao/Khukri carried by him However, she had tried to introduce a new story that the deceased had come to her house in absence of her husband and committed rape upon her. At this stage, the said PW-6 was declared hostile by the prosecution. She further admitted that she did not state before the police that she was raped by the deceased. 16. PW-7 is one Smt. Dumuni Gum, who was also an eye-witness and had seen the accused appellant hitting and cutting the deceased with a dao/Khukri in front of the house of the accused appellant. She deposed that she saw the incident from a distance of the 10 to 15 feet and reiterated of clearly witnessing the accused appellant committing the offence. Thereafter, the deceased had fallen on the ground. She further identified the Material Ext.1 which is dao/Khukri used by the accused appellant in committing the crime. She deposed that she saw the incident from a distance of the 10 to 15 feet and reiterated of clearly witnessing the accused appellant committing the offence. Thereafter, the deceased had fallen on the ground. She further identified the Material Ext.1 which is dao/Khukri used by the accused appellant in committing the crime. In her cross-examination, she explained that though the incident had occurred in the evening, it was not dark and there was light. The suggestion put to her that she was the related sister of the deceased was negated by her. 17. PW-8 is Moniram Ngatey, who is the brother of the deceased. Though he does not claim to have witnessed the actual assault, he could see the accused appellant throwing the dao on the ground and fleeing away from the place of occurrence. He also deposes that some other persons had witnessed the occurrence and that he was the signatory in the Inquest Report (Ext.1) and Seizure List (Ext.3). 18. PW-9 is one Smt. Padmini Ngatey, who is the wife of the deceased. On hearing some noise coming from the house of the accused appellant, she had come to the place of occurrence and saw the accused appellant cutting her husband with a dao and also tried to attack her. The said incident was also witnessed by her son Dipak Ngatey (PW-5). 19. PW-10 is Dr. Niranjan Das, who held autopsy on the body of the deceased found six numbers of external injuries on the same. In his opinion, the cause of death of the deceased was due to cardio-respiratory failure, following severe hemorrhage of the body due to multiple sharp cut injuries on him, which are ante-mortem in nature and homicidal in origin. He has further opined that the injuries were sufficient to cause death which was caused by sharp cutting weapon. 20. PW-11 Smt. Renu Bora Handique is the Junior Scientific Officer, who had conducted the forensic test upon the two seized materials which are the khukri and the apparels of the deceased. The blood is confirmed to be that of human with group "A." 21. Nipen Payeng was cross-examined as PW-12, who deposed to have reached the place of occurrence after the incident had happened. This witness also declared hostile. 22. PW-13 is Narayan Tamuly, Sub-inspector of Police and I.O. of the case. The blood is confirmed to be that of human with group "A." 21. Nipen Payeng was cross-examined as PW-12, who deposed to have reached the place of occurrence after the incident had happened. This witness also declared hostile. 22. PW-13 is Narayan Tamuly, Sub-inspector of Police and I.O. of the case. In his deposition he stated that he has investigated the case, recorded the statements of the witnesses, seized the articles and on completion of investigation of the case, he submitted charge-sheet before the learned Court. 23. As stated earlier, the accused/appellant was given a scope to explain under Section 313 Cr.P.C. wherein he denied his involvement in the crime. Against Question No. 16, the explanation has been extracted hereunder for ready reference:- "Question No. 16 - Do you have anything else to say? Answer - Prior to the date of incident the deceased had committed rape upon my wife. On the date of incident, I had gone to the house of my parents. When I was returning back home I heard hue and cry near my house and when I arrived at my house I noticed village people being gathered near my house shouting that I had killed the deceased. Out of fear I came out of my house along with my wife taking a dao in my hand and arrived at the police station. I did not surrender before police." 24. From reading of the deposition as narrated above, more specifically those of the informant (PW-5) and PW-9, commission of the offence by the accused appears to have been established without any reasonable doubt. Though there are certain inconsistencies with regard to the persons present at the time of commission of offence, the said inconsistencies will not affect the prosecution case as much as the narration of the event by the eye witnesses with regard to the injuries is consistent and is corroborated by the medical officer. The use of the dao/khukri material Ext.1, which is seized by the police is also consistent and is corroborated by the opinion of the doctor regarding the nature of the weapon used for the offence in question. Though there are some inconsistencies as regard to the place from where the dao has been seized, the use of the particular material Ext.1 has not been questioned in the proceedings. Though there are some inconsistencies as regard to the place from where the dao has been seized, the use of the particular material Ext.1 has not been questioned in the proceedings. Therefore, the place from where the dao has been seized may not be much relevance when use of the same has been established. 25. The learned Sessions Judge while coming to findings of guilt has taken into consideration all the relevant materials on record and we do not find that the findings arrived at are erroneous or not based on evidence. In fact, the evidence on record, more particularly, those of the eye-witnesses which were three in numbers, leave no doubt, whatsoever, regarding the involvement of the accused/appellant in the commission of the offence. 26. In view of such facts and circumstances, we did not find the present case to be a fit case for interference of this Court. At this stage, Sri J. Payeng, learned by drawing attention of the Court to the Provisions of Section 357(A) of the Cr.P.C. submits that by exercising power under the said provisions, appropriate compensation may be granted at least to the widow of the deceased. 27. We have considered the said submission and have also considered the view of learned Additional Public Prosecutor which was sought for. 28. Section 357(A) of the Cr.P.C. has been inserted in the year 2009 with the objective to prepare a scheme for providing fund for the purpose of compensation to the victim or his dependants who have suffered loss or injury as a result of the crime and who require rehabilitation. 29. It is on record that at the time of the death, the deceased was aged about 38 years and his widow who had deposed as PW-9 was aged about 35 years. Though his son at this time attained majority, in our considered view, a lump sum amount of Rs. 1,00,000/- is liable to be awarded under the aforesaid provisions of law. The said amount of Rs. 1,00,000/-is to be provided to the widow Smt. Padmini Ngatey, wife of late Sadarma Ngatey by the concerned District Legal Services Authority, Jorhat, Assam on proper identification. The said amount to be paid by an account payee cheque in the name of the aforesaid widow and disbursement may be made within a period of 45 days from the receipt of a certified copy of the judgment. 30. The said amount to be paid by an account payee cheque in the name of the aforesaid widow and disbursement may be made within a period of 45 days from the receipt of a certified copy of the judgment. 30. Registry to send a copy of the judgment to the concerned District Legal Service Authority, Jorhat for doing the needful in terms of the aforesaid direction. 31. The appeal accordingly stands dismissed. The case record be transmitted back to the learned Court below, with a copy of this judgment. 32. Before parting with the records, we appreciate the assistance rendered by the learned Amicus curiae Mr. Tilak Ranjan Sarma as well as Ms. S. Jahan, the learned Additional Public Prosecutor, Assam. The State Legal Services Authority, Assam shall pay an amount of Rs. 7,500/- to the learned Amicus Curiae as honorarium. 33. Registry to send a copy of this order also to the accused through the Superintendent of Central Jail, Jorhat.