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2020 DIGILAW 14 (GAU)

Dhaniram Konch v. State of Assam

2020-01-06

HITESH KUMAR SARMA, SUMAN SHYAM

body2020
JUDGMENT : Hitesh Kumar Sarma, J. 1. This appeal, under Section 374(2) of the Cr.P.C. is preferred against the judgment and order, dated 20-11-2017, passed by learned Additional Sessions Judge, Dibrugarh, in Sessions Case No. 205 of 2013, convicting the accused-appellant, under Sections 302 of the IPC and sentencing him to undergo rigorous imprisonment for life and to pay fine of Rs. 10,000/- in default, to suffer simple imprisonment for a period of one month. 2. The fact of the case, as unfolded during the trial, is as follows: The accused-appellant has two wives. The first wife resides separately from him, with her sons and daughter, about one kilometre away from his house. The accused- appellant resides with his second wife in his house. On 02-08-2012, at about 8.00 pm, the accused-appellant, along with one Achinta Baruah and Suren Baruah, called his son (from his first wife), Bikash Konch (deceased) from her house for some discussions. Accordingly, his son, Bikash accompanied them. On that night, the deceased, Bikash Konch, did not return home. On the next day, i.e. on 03-08-2012, at about 12.00 am, the mother of the deceased went to the house of the accused-appellant in search of her son and found him lying dead in pool of blood in the house of the accused-appellant. 3. On such facts, Smt. Ranjita Dihingia (PW-4), sister of the deceased, lodged the FIR vide Ext. 1 with the in-Charge of Ghoramara Police Outpost. On receipt of the FIR, Ghoramara Police Outpost entered the same in the General Diary vide GD Entry No. 55, dated 04-08-2012 and forwarded the same to Lahoal Police Station. Lahoal Police Station registered a case, being No. 121/2012, under Section 302/34 of the IPC. During investigation, the Investigating Police Officer examined the witnesses under Section 161 of the Cr.P.C. conducted the post mortem of the dead body of the deceased, caused inquest of the dead body done and after completion of investigation charge-sheet against the accused-appellant was laid under Section 302 of the IPC. 4. The learned trial Court, after exhausting all required formalities, framed a formal charge under Sections 302 of the IPC against the accused-appellant. The accused-appellant pleaded innocence while the charge was read over and explained to him. After completion of the trial, the learned trial Court convicted and sentenced the accused-appellant, as indicated above. 5. 4. The learned trial Court, after exhausting all required formalities, framed a formal charge under Sections 302 of the IPC against the accused-appellant. The accused-appellant pleaded innocence while the charge was read over and explained to him. After completion of the trial, the learned trial Court convicted and sentenced the accused-appellant, as indicated above. 5. In this case, prosecution examined as many as 8 witnesses, including the autopsy doctor and the Investigating Police Officer, who were subjected to cross-examination by the defence. At the closure of the of prosecution evidence, as required under Section 313 of the Cr.P.C. all the incriminating materials appearing in the evidence were put to the accused-appellant. In his such statement, the accused-appellant denied the accusations levelled against him. The defence examined one witness. 6. We have scanned the evidence of the prosecution witnesses as well as the defence witness. We have also perused the records of the learned trial Court as well as the impugned judgment and order. 7. We have heard Mr. B.M. Chouduhry, learned counsel, assisted by Mr. U. Choudhury, learned counsel appearing on behalf of accused-appellant. We have also heard Mr. R.J. Baruah, learned Additional Public Prosecutor, Assam. 8. PW-1, Sri Montu Saikia, is the scribe of the FIR who has no personal knowledge about the occurrence. He had written the FIR as dictated by the informant (PW-4). 9. PW-2, Sri Tikheswar Baruah, is the elder brother of the accused-appellant. He heard from the neighbours of the accused-appellant that the accused-appellant had killed, Bikash Konch. The neighbours aforesaid informed the police and police came to the place of occurrence. This witness also went to the place of occurrence and found the dead body of the deceased lying on the floor near the kitchen of the house of the accused-appellant and also noticed blood oozing out from the head of the deceased. He is also the witness to the seizure of three weapons, two of which are mit dao and Naluwa dao, exhibited in the Court, vide M. Ext. 1 and M. Ext. 2. He is the witness to the seizure, Ext. 2, and his signature is Ext. 2(1). He is also the witness to the inquest report, vide Ext. 3 and Ext. 3(1) is his signature. 1 and M. Ext. 2. He is the witness to the seizure, Ext. 2, and his signature is Ext. 2(1). He is also the witness to the inquest report, vide Ext. 3 and Ext. 3(1) is his signature. During his cross-examination, he has stated that he could not say as to whether the daos exhibited in the Court were the daos recovered and seized by police. It has also come out from his cross-examination that the deceased used to visit the house of the accused-appellant frequently during night time and used to assault him. 10. PW-3, Smt. Lakhimai Konch, is the first wife of the accused-appellant and mother of the deceased. Her evidence is to the effect that at about 8.00 pm, on 02-08-2012, the accused-appellant came to her house and called her deceased son, Bikash, to his house in order to discuss about some land matters. After initial refusal, at the request of the accused-appellant, the deceased went with the accused-appellant to his house and did not return home that night. Next day, at about 8.00 am, she went to the house of the accused-appellant and saw the accused-appellant and DW-1, his second wife (Smt. Sushila Konch) were preparing to go somewhere. The accused-appellant told her that he had cut her son, Bikash and threw him in the room. He also threatened that she would also be cut. She saw the dead body of her deceased son with cut injuries in the dining hall of the house of the accused-appellant. She raised hue and cry. Then, the accused-appellant and his second wife, DW-1 left the house hurriedly. Later on, her daughter, PW-4 lodged the FIR. In her cross-examination, she is found to have stated that the accused-appellant was accompanied by one Achinta Baruah and Suren Baruah to her house. She is found to have denied the suggestion that she did not state before the Investigating Police Officer that the accused-appellant told her that he had cut her son and threw him in the room yet it is found that no such statement was made by PW-3 to the Investigating Police Officer while making her statement under Section 161 of the Cr.P.C. and such evidence of PW-3 appears to be an improvement and afterthought. 11. PW-4, Smt. Ranjita Dehingia, is the informant. 11. PW-4, Smt. Ranjita Dehingia, is the informant. The evidence of PW-4 is to the effect that her deceased brother informed her, over phone, at about 8.00 pm, on 02-08-2012, that he would be cut by his father/accused-appellant and wanted her to inform their mother, i.e. PW-3 about this fact. The deceased called the informant from the mobile phone of one Pulin Baruah. At that point of time, as stated by her, Achinta Baruah and Pulin Baruah were also with him. Next day morning, she went to her mother's house home and got the information from her mother that in the previous evening, the accused-appellant/her father had taken the deceased with him to his house, and thereafter he did not return. She went to her father's house and found there the dead body of her brother, Bikash lying with cut injuries over his head, back, buttock and legs. Her father was not at home at that time. She admitted to have lodged the FIR, vide Ext. 1. In her cross-examination, nothing could be elicited by the defence to discredit her above evidence in the examination-in-chief to the effect that she had seen the dead body of her deceased brother in the house of the accused-appellant. 12. PW-5, Dr. Rupak Kr. Gogoi, is the autopsy doctor. He performed the post mortem examination of the deceased at 11.45 am, on 04-08-2012 and found as follows: "1. One incised wound measuring 8 x 1 cm cutting the outer table of the skull present on the left parietal area of the scalp in coronan plan. 2. One incised wound measuring 11 x 2 cm cutting the outer table of the scalp present on the left temporal area of the scalp directed downward and backward. 3. One incised wound measuring 12 x 3 cm x muscle deep present on left cheek directed forward and downward. 4. One incised wound measuring 10 x 2 cm x muscle deep present on upper part of left lateral side of the neck directed downward and backward. 5. One incised wound measuring 11 x 4 cm cutting the lower part of left humerus directed forward and downward. 6. One incised wound measuring 12 x 9 cm x muscle deep present on lateral aspect of left thigh directed forward and downward. 7. 5. One incised wound measuring 11 x 4 cm cutting the lower part of left humerus directed forward and downward. 6. One incised wound measuring 12 x 9 cm x muscle deep present on lateral aspect of left thigh directed forward and downward. 7. One incised wound measuring 3 x 1 cm x muscle deep present on upper part of front of the right thigh. 8. One incised wound measuring 3 x 1 cm x skin deep present on radial side of right forearm in upper part. Examination of Cranium and Spinal Canal: Scalp and Skull as described. Others healthy. Examination of Thorax - All thoracic organs were healthy. Examination of Abdomen - All abdominal organs were found healthy." He also opined that the cause of death was shock and haemorrhage resulting from injuries as described. All injuries were ante mortem and caused by sharp cutting weapon and homicidal in nature. 13. PW-6, Manik Baruah, who visited the house of the accused-appellant with the village Headman, saw the dead body of the deceased there. He had also noticed injuries on the head, legs etc. of the dead body of the deceased. The police seized one knife and two daos from the place of occurrence, vide Ext. 2, where he had put his signature as witness, vide Ext. 2(2). He has also exhibited the M. Ext. 1, M. Ext. 2 and M. Ext. 3, i.e. the mit dao, Mechi dao and pruning knife in the Court. In his cross-examination, he deposed that he was not aware as to how the deceased Bikash, died. 14. The evidence of PW-7, Doyal Baruah, is to the effect that the dead body of the deceased was taken out from the house of the accused-appellant by the police. He went there with some of his co-villagers. He noticed injuries over the buttock and other parts of the body. He expressed his ignorance as to who had killed the deceased. In his cross-examination, he deposed that he was not aware as to whether the accused-appellant was present at his house or not on the day when the dead body was found. 15. PW-8, Sri Bhupen Kumar Sarma, is the Investigating Police Officer. He expressed his ignorance as to who had killed the deceased. In his cross-examination, he deposed that he was not aware as to whether the accused-appellant was present at his house or not on the day when the dead body was found. 15. PW-8, Sri Bhupen Kumar Sarma, is the Investigating Police Officer. It appears from his evidence that on receipt of telephonic call, at about 12 noon, on 03-08-2012, he entered the same into the General Diary, vide GD Entry No. 38, dated 03-08-2012 and thereafter went to the place of occurrence with his staff. On arrival at the place of occurrence, he found that the house of the accused-appellant was locked. Then, he called the village Headman and some other persons from the village and found a person lying inside the house of the accused-appellant. They noticed that the door in the backyard of the house was open, and accordingly, they entered into the house and found the dead body of the deceased Bikash which was identified by the village Headman. Thereafter, other formalities were done in respect of causing inquest as well as post mortem of the dead body. He also seized, vide Ext. 2, one Mit dao and one Kalam Katari from the place of occurrence, in presence of witnesses. He recorded the statement of the witnesses and finding materials, laid charge-sheet against the accused-appellant, under Section 302 of the IPC. He also denied the defence suggestion that the accused was not present in the house on the date of the occurrence and that he was in the house of his niece for two days prior to the date of occurrence. 16. The evidence of DW-1, Smt. Sushila Konch, is to the effect that on 02-08-2012, she and her husband, i.e. the accused-appellant went to the house of Niru Chetia at Sisiya Bokulani Chariali and stayed there for four days. They came to know about the occurrence from the television and on receipt of the information; they returned and surrendered in the Court. She admitted that the dead body was found in her house. In her cross-examination also she denied that the accused-appellant had murdered the deceased. 17. On scrutiny of the evidence of PW-5, the autopsy doctor, it is found that the cause of death of the deceased was shock and haemorrhage resulting from injuries described in his report, Ext. 4. She admitted that the dead body was found in her house. In her cross-examination also she denied that the accused-appellant had murdered the deceased. 17. On scrutiny of the evidence of PW-5, the autopsy doctor, it is found that the cause of death of the deceased was shock and haemorrhage resulting from injuries described in his report, Ext. 4. The injuries, as noticed in the evidence of PW-5 as well as in the Ext. 4 are all incised cut injuries. Eight serious cut injuries were found in the dead body of the deceased. The injuries, as stated by the doctor, are such that it resulted in the death of the deceased. The recovery of the blood stained weapons of offence, vide Ext. 2, and the nature of injury sustained by the injured taken together with the opinion of the autopsy doctor leaves no doubt in the mind of this Court that the death of the deceased was homicidal in nature. 18. The injuries sustained by the deceased and specifically mentioned at paragraph 12 above, read in combination with the evidence of the autopsy doctor (PW-8), clearly indicate that the injuries sustained by the deceased come within the ambit of Clause Thirdly of Section 300 of the IPC. Clause Thirdly of Section 300 of the IPC reads as follows: "Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death." 19. In the case of Virsa Singh vs. State of Punjab, AIR 1958 SC 465 , the Hon'ble Supreme Court observed that that the prosecution must prove the following facts before it can bring a case under Section 300 Thirdly of the IPC:- Firstly, it must establish, quite objectively, that a bodily injury is present. Secondly, the nature of the injury must be proved; these are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 20. The Hon'ble Supreme Court in Virsa Singh (supra) held that once the four elements, as aforesaid, are established by the prosecution (and of course, the burden is on the prosecution throughout) the offence is murder under Section 300 Thirdly of the IPC. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. 21. Now, there is no dispute at the Bar that the bodily injuries, as referred to in the evidence of PW-5, were present on the dead body of the deceased and the nature of injury have been indicated by the PW-5 in his report, vide Ext. 4, which are specifically mentioned, while referring to his evidence, above. 22. The weapon used in the offence and seized vide Ext. 2 from near the dead body of the deceased and at the place of occurrence leaves no room for doubt in the mind of the Court that the injuries found in the dead body of the deceased were the injures intended to be inflicted by the assailant and it was not accidental or unintentional. 2 from near the dead body of the deceased and at the place of occurrence leaves no room for doubt in the mind of the Court that the injuries found in the dead body of the deceased were the injures intended to be inflicted by the assailant and it was not accidental or unintentional. The opinion of the doctor also shows that the cause of death is shock and haemorrhage resulting from injuries, aforesaid and the injuries were ante mortem, caused by sharp cutting weapon and homicidal in nature. 23. That being so, as held in Virsa Singh (supra), taking into account the injuries inflicted, resulting in the death of the deceased, the intention of the assailant has lost its relevance. 24. Now, the question is as to who caused the death of the deceased? On scrutiny of the evidence on record it is found that there is no eye witness to the occurrence and the entire prosecution case rests upon the circumstantial evidence. Therefore, before discussing the circumstances to hold the accused-appellant guilty or otherwise in respect of the offence with which he has been charged, let us examine the law on circumstantial evidence. 25. It is settled position of law that in order to prove a criminal case by circumstantial evidence, the circumstances relied upon, must be conclusive and solid and chain of circumstance must be such, that it leads to the conclusion, which is consistent only and only with the hypothesis of the guilt of the accused. Therefore, in a case resting on circumstantial evidence, firstly the circumstances relied upon has to be proved conclusively beyond doubt and secondly there must be a chain of the proved circumstances, which unerringly leads to the conclusion, that it was none but the accused, who committed the crime. 26. In Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 (SC) 1622 , the Apex Court, while dealing with the nature of proof for establishing a criminal charge which rests solely on the circumstantial evidence, laid down the following golden principles: "152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction be proved as was held by this Court in Shivaji Sahabrao Bobade and Another vs. State of Maharashtra where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved. (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 27. It appears from the evidence of PW-3 that at about 8.00 pm, on 02-08-2012, the deceased was called and taken with him by the accused-appellant to his house and the deceased did not return that night to his home and on the next morning, his dead body was found with number of injures, lying in the house of the accused-appellant. The evidence of PW-4/informant is also to the effect that while she went to the house of the accused- appellant, on 03-08-2012, she found the dead body of the deceased lying with injures in his house. PW-2, who is the elder brother of the accused-appellant also deposed that he had also seen the dead body of the deceased with injuries in the house of the accused-appellant. PW-2, who is the elder brother of the accused-appellant also deposed that he had also seen the dead body of the deceased with injuries in the house of the accused-appellant. PW-6 and PW-7 are also found categorical in stating that the dead body of the deceased was found in the house of the accused-appellant. PW-6 has specifically stated that he is not only the witness to the inquest but also the witness to the seizure of the weapon of offence from the house of the accused-appellant. From the evidence on record, it has come out that the weapons of offence seized were blood stained. The Investigating Police Officer, examined as PW-8, is also found to have stated that the dead body of the deceased was found in the house of the accused-appellant, in presence of the village Headman and other co-villagers. It has also come out from his evidence that the door of the house was locked. But, the door in the backyard was open through which they entered into the house and thereafter carried out the formalities necessary to do the inquest as well as the post mortem examination of the dead body etc. 28. From such evidence of the PWs. referred to above, it clearly transpires that: (a) on 02-08-2012, at about 8.00 pm, the deceased was called by the accused-appellant and the deceased accompanied the accused-appellant. Thereafter, he did not return to his home. (b) the dead body of the deceased was found in the house of the accused-appellant in the morning of 03-08-2012 by the prosecution witnesses, except the PW-1, the scribe of the FIR and PW-5, the autopsy doctor. (c) the undisputed evidence that the weapons of offence were seized by the Investigating Police Officer, vide Ext. 2, from the place of occurrence with blood stained thereon and proof of the seized weapon in the Court vide M. Exhibits 1, 2 and 3 leave no doubt that those sharp cutting weapons were used in causing the fatal injuries on the deceased. 29. The circumstances above are linked with each other in such a way that it constitutes a chain leaving no reasonable ground for the conclusion that it was none but the accused-appellant who caused the death of the deceased. 29. The circumstances above are linked with each other in such a way that it constitutes a chain leaving no reasonable ground for the conclusion that it was none but the accused-appellant who caused the death of the deceased. That apart, to add to this circumstantial evidence, the defence also failed to prove as to how the deceased sustained the injuries resulting in his death. 30. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. From the evidence on record, it has already come out that the deceased came out of his house with the accused-appellant in the previous evening and his dead body was found in the next morning in his house with the injuries noted in Ext. 4. As the dead body was found in the house of the accused-appellant, it must be within the knowledge of the accused-appellant as to how the deceased sustained injuries resulting in his death. But no explanation is found forthcoming from the accused-appellant in the cross-examination of the prosecution witnesses and even in the defence evidence, led by him through DW-1. Therefore, this fact appears to be an additional circumstance against the accused-appellant. 31. The prosecution appears to have discharged its initial burden to establish the case against the accused-appellant by way of circumstantial evidence, referred to above. 32. The defence evidence adduced through DW-1, i.e. the second wife of the accused- appellant, is to the effect that on 02-08-2012, she and her husband/accused-appellant went to the house of one Niru Chetia at Sisiya Bokulani Chariali and came back on 04-08-2012 after coming to know about the death of the deceased through a Television report. But the evidence of PW-3 and PW-4 make it succinctly clear that the accused-appellant and DW-1 were very much present at their house while they visited their house on 03-08-2012 in the morning hours. PW-3 has specifically stated that at the time she visited his house, the accused-appellant and his wife, DW-1, were preparing to leave the house. Such evidence, read in combination with the fact that Niru Chetia, in whose house the accused-appellant and DW-1 claimed to have stayed on the date of the occurrence, has not been examined to prove the plea of alibi by the accused-appellant. 33. Such evidence, read in combination with the fact that Niru Chetia, in whose house the accused-appellant and DW-1 claimed to have stayed on the date of the occurrence, has not been examined to prove the plea of alibi by the accused-appellant. 33. Taking the above facts together it appears that the defence has failed to prove the plea of alibi; therefore, relying on the decision of the Hon'ble Supreme Court in the case of Jitender Kumar vs. State of Haryana, (2012) 6 SCC 2014, an adverse inference is drawn against the accused-appellant and in favour of the prosecution. 34. The learned counsel for the accused-appellant, Mr. Choudhury, has submitted that the FIR was lodged on 04-08-2012 whereas the dead body was found in the morning of 03-08-2012 and as such the delay in lodging the FIR is fatal. The informant/PW-4 lodged the FIR next day of the detection of the dead body of the deceased. In the given facts and circumstances of the case, the delay in lodging the FIR is not such that it would have adverse bearing on the prosecution story. The further submission made by Mr. Choudhury is that there were two persons, namely, Achinta Baruah and Suren Baruah, who accompanied the accused-appellant to the house of PW-3 (first wife of the accused- appellant) at about 8.00 pm, on 02-08-2012 and called out the deceased to accompany them and, in fact, the deceased also accompanied them, have not been examined, which accordingly to him, is fatal for the prosecution, as they could have thrown some light as to where the deceased left with them. The fact remains that the accused-appellant had, in fact, called him for some discussion. It has also come out from the evidence of PW-3 that the deceased was called by his father/accused-appellant to discuss about some land matters. This fact, taken together with the fact that the dead body of the deceased was found in the house of the accused-appellant, unequivocally make it out that even if the aforesaid Achinta Baruah and Suren Baruah were examined, it would not have any impact on the findings and decision of this case. Therefore, this argument has no force. 35. In view of above discussions, particularly, the circumstantial evidence, as indicated above, leaves this Court with no doubt that it was none but the accused-appellant, who committed the murder of the deceased. Therefore, this argument has no force. 35. In view of above discussions, particularly, the circumstantial evidence, as indicated above, leaves this Court with no doubt that it was none but the accused-appellant, who committed the murder of the deceased. Therefore, the order of conviction recorded by the learned Court below and the substantive sentence imposed upon the accused-appellant being the minimum prescribed one, no interference is called for by this Court in exercise of its appellate jurisdiction. 36. Accordingly, the judgment of the learned Court below is affirmed. 37. Send down the LCR along with a copy of this judgment and order.