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2020 DIGILAW 141 (GAU)

Dwipen Bawri v. State of Assam

2020-02-05

HITESH KUMAR SARMA, SUMAN SHYAM

body2020
JUDGMENT : Suman Shyam, J. 1. Heard Mr. B. Bhagawati, learned Amicus Curiae, appearing for the appellant. We have also heard Mr. R.J. Baruah, learned Additional Public Prosecutor, Assam, appearing for the respondent No. 1. None has appeared for the respondent No. 2 despite service of notice. 2. The sole appellant in this case has been convicted under Section 302 of the Indian Penal Code (IPC) for causing homicidal death of his wife Rupali Bhumiz and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 7000/-. The appellant has also been sentenced to undergo rigorous imprisonment for a period of 7 (seven) years for committing an offence under Section 326 of the IPC and to pay fine of Rs. 3000/-. 3. The prosecution case, in a nutshell, is that on 20/08/2016 at around 2-30 a.m. the appellant Dwipen Bawri had killed his wife Rupali Bhumiz by a sharp weapon (dao) inside his house and he had also inflicted cut injury upon his brother-in-law, viz. Shri China Bhumiz with sharp weapon, as a result of which, he had to avail treatment at the Golaghat Civil Hospital. 4. On 20/08/2016, Sri Bogai Bawri, who is the father of the appellant, had lodged an ejahar with the Giladhari Police Station, based on which, Giladhari Police Station case No. 106/2016 was registered under Section 302/326 of the IPC. Upon completion of investigation by the Police, the I.O. had submitted charge sheet against the appellant under Section 302/326 of the IPC. The appellant had pleaded not guilty. As such, the matter was sent up for trial. 5. The prosecution side had examined 8 (eight) witnesses so as to bring home the charge against the accused. The statement of the accused was recorded under section 313 of Cr.P.C., and he denied the allegation brought against him but the appellant had declined to adduce evidence in his defence. On an analysis of the evidence available on record, the learned trial Court had found the appellant to be guilty of committing offence punishable under Section 302/326 of the IPC and accordingly convicted him. Aggrieved by the conviction and the sentences imposed upon the appellant by the learned trial Court, the present appeal has been filed. 6. P.W.-1 Bogai Bawri is the father of the accused. Aggrieved by the conviction and the sentences imposed upon the appellant by the learned trial Court, the present appeal has been filed. 6. P.W.-1 Bogai Bawri is the father of the accused. He is also the informant in this case and has deposed before the Court that the accused lived separately from him in a house situated at a nearby distance. On the date of occurrence, his grand-daughter i.e. the daughter of the accused had come and informed him that the accused person had killed her mother. On receiving the information, P.W.-1 had immediately informed Shri Atul Majhi i.e. the Secretary of the VDP and Sri Arup Bhumij, who is the Secretary of the Tea Garden. Then he had visited the house of the accused person along with the Secretaries. P.W.-1 has also stated that inside the house, he saw the dead body of the wife of the accused person with her head was almost severed. P.W.-1 has deposed that he saw one "Noga dao" by which, the accused had killed his wife and the said "dao" was used for chopping meat. According to the P.W.-1, on the date of occurrence, the brother-in-law of accused, viz. Palash Bhumiz @ China Bhumiz was present in the house and he was also assaulted by the accused person with sharp weapon causing serious injuries to him. P.W.-1 has proved the ejahar Ext. 1 and has identified his thumb impression therein. During his cross examination, P.W.-1 has stated that when he visited the house of the accused, he did not find China Bhumiz as he had fled away with his cut injuries out of fear for life. 7. P.W.-2 Sri Budhen Bauri is a cousin of the accused and also an important witness in this case. P.W.-2 has deposed that the incident took place in the night hours and on the next day, early in the morning, hearing hullah he had visited the house of the accused person where he saw the dead body of his wife with blood all around. The P.W.-2 has deposed that on enquiry, the accused person told him that he had killed his wife and he had also inflicted cut injury on his brother-in-law, viz. Palash Bhumiz. During his cross examination, the defence side did not assail the aforesaid testimony of the P.W.-2. 8. The P.W.-2 has deposed that on enquiry, the accused person told him that he had killed his wife and he had also inflicted cut injury on his brother-in-law, viz. Palash Bhumiz. During his cross examination, the defence side did not assail the aforesaid testimony of the P.W.-2. 8. P.W.-3 Sri Kancha Bawri is the elder brother of the accused and he has deposed to the effect that he had learnt about the incident from his father, who is the informant. Thereafter, he went to the house of the accused person and saw the dead body of Asha Bawri with cut injuries lying in the house. P.W.-3 has deposed that the Police arrived and took away the dead body and an inquest report Ext. 3 was also prepared, wherein he had put his signature as Ext. 3(1). According to the P.W.-3, the Police had recovered one "dao" with wooden handle and one bamboo stick with one end pointed edge from the possession of accused Dwipen Bawri and that he had put his signature in the seizure list Ext. 2. P.W.-3 has also stated that material Ext. 1 is the dao and the material Ext. 2 is the bamboo stick with one end pointed edge. 9. P.W.-4 Sri Palash Bhumiz @ China Bhumiz is the brother-in-law of the accused and the younger brother of the deceased. According to P.W.-4, the incident occurred in the year 2016 at around 2/2-30 a.m. and while he was sleeping, he felt blood flowing from his body. After he come to senses, he could feel that he had sustained cut injuries on his neck which was caused by the accused person with a dao. Than he had called his sister but she did not respond. Thereafter, he had left the house of the accused person out of fear and later on, his family members took him to the Golaghat Civil Hospital. P.W.-4 has deposed that he had sustained cut injury in the back side of his neck. Later on, he came to know that his sister Rupali Bhumiz had died on being killed by the accused. P.W.-4 has denied the suggestion made by the defence counsel that on the date of the incident, the accused person was not present in his house. 10. P.W.-5 Sri Atul Majhi is a person who lives in the same locality and is also the Secretary of VDP of his area. P.W.-4 has denied the suggestion made by the defence counsel that on the date of the incident, the accused person was not present in his house. 10. P.W.-5 Sri Atul Majhi is a person who lives in the same locality and is also the Secretary of VDP of his area. P.W.-5 has deposed that immediately after the occurrence past mid-night, Sri Bogai Bawri came to his house and told that a quarrel had taken place between the accused person and his wife, where-after she was killed. On receiving the information, he along with Arup Bhumiz i.e. the President of VDP as well as few others went to the place of occurrence and found the door of the house of the accused was closed. P.W.-5 has also stated that when they asked the accused person to open the door, he did not do so. Through a hole, he could see that his wife Rupali Bhumiz was lying dead with injury and at that time, the accused person was present at home. The testimony of the P.W.-5 could not be shaken during his cross examination. 11. P.W.-6 Dr. Dipak Dutta is the doctor who had conducted post mortem examination on the dead body. According to P.W.-6, the following injuries were found on the dead body:- "A deep, oblique placed, long incised neck injury found on the right side of neck of around (5 x 3 x 2) C. The left end of the injury started below the ear at the upper third of neck and deepened gradually with severance of the right carotid artery. The right sided end of the injury was at the mid third of neck with a tail Abrasion. Abrasion over right side of face over the angle of mandible of around (2 x 1) Cm. Abdomen : Stomach and its contents : Healthy and contained undigested food particles. Small intestine : Healthy and contained semi digested food particles. Large intestine : Healthy and contained faecal matters. Thorax: Vessels: Right carotid artery was severed. All the finds are ante mortem in nature. Post mortem interval was less than 36 hours. The injury was caused by sharp object (neck) caused by blunt object (over face). PW-6 had opined that the death of the deceased was caused due to shock and haemorrhage as a result of severance of the carotid artery sustained by the deceased. 12. All the finds are ante mortem in nature. Post mortem interval was less than 36 hours. The injury was caused by sharp object (neck) caused by blunt object (over face). PW-6 had opined that the death of the deceased was caused due to shock and haemorrhage as a result of severance of the carotid artery sustained by the deceased. 12. From the testimony of the P.W.-6, it is apparent that the deceased had died a homicidal death due to severance of her neck by a sharp weapon causing deep incised injury. 13. P.W.-7 Dr. R.K. Prasad was the on duty doctor at the Golaghat Civil Hospital, who had treated Sri Palash Bhumiz @ China Bhumiz. He has deposed that on 20/08/2016, at about 5-30 a.m. he had examined Palash Bhumiz and found cut injury with well defined margin size (8 x 2 x 2) Cm on the right side of the neck extending to the back. The doctor has remarked that nature of injury was grievous and was probably caused by heavy sharp cutting weapon. 14. The President of the VDP Shri Arup Bhumiz had appeared and deposed as the Court Witness No. 1 (CW-1). In his testimony, the CW-1 has deposed that on the date of occurrence, the informant Bogai Bawri and his brother in law China Bhumiz had come to his house in an injured condition and informed that the accused had inflicted cut injury in the neck of China Bhumiz by means of dao and might have killed his wife by hacking her with a dao. CW-1 has also stated that when he came to the place of occurrence, he found the accused sitting inside the house and the body of Rupali Bhumiz was lying with cut injuries on her neck. At that time, the Police had arrived. Then he called the accused and he came out of his house with a dao used in the incident which was seized by the Police. Thereafter, the Police had sent the dead body for post-mortem. 15. From a careful analysis of the testimony of P.Ws.-4, 5 and CW-1, we find that the accused person was at home on the date of the occurrence. The testimony of P.Ws.-4, 5 and CW-1 read with P.Ws.-1 and 3 also establishes the fact that at the time when the incident took place, the accused person was present along with his deceased wife. The testimony of P.Ws.-4, 5 and CW-1 read with P.Ws.-1 and 3 also establishes the fact that at the time when the incident took place, the accused person was present along with his deceased wife. It has come out from the evidence available on record that the incident took place on the night of "Raksha Bandhan" day and it transpires that P.W.-4 had gone to visit his elder sister i.e. the deceased on the occasion of "Raksha Bandhan". 16. From a careful scrutiny of the post mortem report Ext. 4 as well as the evidence of P.W.-6, it is clear that the deceased had died a homicidal death due to deep cut injuries suffered by her in her neck. We have also perused the injury report of P.W.-4 i.e. Ext. 5 where-from it is clear that P.W.-4 China Bhumiz had suffered cut injuries in his neck. The aforesaid injury report lends credence to the testimony of the P.W.-4 who is the injured witness in this case and we do not find any justifiable ground to disbelieve the version of the said witness, from whose testimony, it is apparent that the accused was present at his house along with the deceased at the night of the incident. The defence side has also not disputed even for once that the accused was present at home when the incident had occurred. 17. From the testimony of P.W.-4, we find that the witness was fast asleep when the incident actually happened and upon awaking up from sleep, he could realized the injury inflicted on his neck by the accused. Thereafter, the P.W.-4 had run away from his house and later on availed, medical treatment in the Golaghat Civil Hospital. Therefore, it is clear that the circumstances under which the deceased was killed was within the special knowledge of the appellant/accused. As such, there was a duty cast upon the accused under Section 106 of the Evidence Act to explain those circumstances which duty he has clearly failed to discharge in this case. 18. P.W.-2 has categorically stated that the accused had confessed to the killing of his wife before the said witness. But the testimony of P.W.-2 has remained un-assailed. As such, there was a duty cast upon the accused under Section 106 of the Evidence Act to explain those circumstances which duty he has clearly failed to discharge in this case. 18. P.W.-2 has categorically stated that the accused had confessed to the killing of his wife before the said witness. But the testimony of P.W.-2 has remained un-assailed. The fact that the dao was recovered from the accused and he was found present inside the house along with the dead body of his wife with no other person present in the house at the time of occurrence except his brother-in-law China Bhumiz, who has himself sustained injuries and the failure of the accused to explain the circumstances under which the deceased had died, viewed in the perspective of the testimony of P.W.-2 bringing on record the extra judicial confession, in our considered opinion, would be sufficient to hold that the prosecution has succeeded in establishing the charge brought against the accused/appellant beyond all reasonable doubt. As such, we do not find any justifiable ground to interfere with the impugned order. 19. At this stage, Mr. Bhagabati has referred to the testimony of P.W.-4 and has made an attempt of point out certain contradictions with reference to the evidence adduced by the CW-1 pertaining to the fact that although the injured witness (PW-4) China Bhumiz has deposed that he had gone home straight from the house of the accused but according to CW-1 he had also come to the house of the village President and informed him about the injuries. Therefore, submits Mr. Bhagabati, the testimony of P.W.-4 is not reliable. However, upon a meticulous examination of the bulk of evidence available on record, we find that those are not contradictions but at best some minor discrepancies which can easily be ignored by this Court. Having regard to the weight of evidence available on record, there can hardly be any doubt about the fact that it is the appellant/accused who had killed his wife Rupali Bhumiz by inflicting grievous injuries upon her with a sharp weapon and it is him who had injured his brother-in-law i.e. the P.W.-4 by hacking him in the neck. Therefore, we are of the view that there is no scope for this Court to interfere with the conviction of the accused. 20. Therefore, we are of the view that there is no scope for this Court to interfere with the conviction of the accused. 20. From a careful examination of the impugned judgment and order dated 07/12/2018, we find that then learned Trial Court had taken note of the mitigating circumstances before imposing the sentence upon the appellant. Having regard to the facts and circumstances of the case, we are of the view that the sentence imposed upon the appellant is just and reasonable. 21. For the reasons stated herein above, we hold that there is no merit in the appeal and the same is accordingly dismissed. Send back the LCR.