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2020 DIGILAW 166 (GAU)

Abhijit Sahu @ Mantu Sahu v. State Of Assam

2020-02-10

MIR ALFAZ ALI, S.HUKATO SWU

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Mr. B Baruah, learned Amicus Curiae appearing for the appellant and Mr. BJ Dutta, learned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 28.02.2017 passed by the learned Additional Sessions Judge, Golaghat in Sessions Case No.24/2016 (GR Case No.697/2016), whereby the appellant was convicted under section 302 IPC and sentenced to Rigorous Imprisonment for life and fine of Rs.1,000/- with default stipulation. 3. As per the prosecution case, on 14.05.2016 at about 11.30 am, the present appellant Mantu Sahu along with one Monuj Das killed the victim Indrajit Saikia in the house of the appellant. Having come to know about the occurrence, Pw-1 Pranab Jyoti Saikia lodged the FIR, Exhibit-1 on the basis of which, police registered Golaghat PS Case No.323/2016 under section 302/34 IPC. During investigation, police recorded the statement of the witnesses, prepared the inquest report, seized a piece of rope alleged to have used for killing of the deceased and send the body of the victim for post-mortem examination. 4. Pw-5 Dr. Jayanta Borgohain, who conducted the post-mortem examination found the following injuries on the body of the victim: "No external injury other than mark of ligature. Ligature mark is transverse. Completely encircling the neck below the thyroid cashilage. Face is congested. Bruise mark present along with ligature mark." 5. In the opinion of the autopsy doctor death was due to asphyxia as a result of strangulation by ligature and death was within 12 hours from the time of examination. 6. On conclusion of investigation, charge-sheet was laid against the present appellant and one Monuj Das. As the case was triable by the Court of Sessions, learned Magistrate upon taking cognizance, committed the case to the Court of Sessions. Learned Sessions Judge framed charge under sections 120(B)/302/34 IPC against both the accused, to which they pleaded not guilty. 7. During the course of trial 6 (six) witnesses were examined by the prosecution in order to bring home the charges and on appreciation of evidence, learned Sessions Judge convicted the appellants under section 302 IPC and awarded sentence as indicated above. However, the co-accused Monuj Das was acquitted and set at liberty. 8. Aggrieved, the present appellant preferred the instant appeal. 9. However, the co-accused Monuj Das was acquitted and set at liberty. 8. Aggrieved, the present appellant preferred the instant appeal. 9. Learned Amicus Curiae submits, that there was no other evidence except the oral testimony of Pw-3 and as such, it may not be safe to record the conviction on the basis of the lone oral testimony of Pw-3. Supporting the conviction and sentence, learned Addl. PP, Assam submits, that oral testimony of Pw-3 is very much consistent and there is no reason to disbelieve her evidence which is also supported by other attending circumstances including the medical evidence to establish the charge against the appellant. 10. We have considered the submissions made by the learned Amicus Curiae and learned Addl. PP, Assam and also scrutinised the evidence brought on record. 11. The first witness examined by the prosecution was informant Pranabjyoti Saikia who was not a witness to the occurrence. According to him, having received the information about the occurrence, he came to the place of occurrence and found the body of the victim lying on the floor inside the house of the accused. According to him, in the meantime before his arrival, police as well as media persons and also local people arrived there. He further stated that Pw-3, Gita Sahu, wife of the accused/appellant informed him, that appellant and Monuj Das had killed Indrajit Saikia. During crossexamination he stated, that he did not see the appellant or the co-accused Monuj Das at the place of occurrence as both of them were already arrested. 12. Pw-2 Raj Kumar Bedant Bikash Gohain was declared hostile and his previous statement before police was confirmed through the I/O. We find no incriminating materials in the oral testimony of Pw-2. 13. The Pw-3 wife of the accused/appellant appears to be the star witness in this case. She testified, that at the time of occurrence, while she was washing the clothes, she noticed her husband locking the door of their bed room and preparing to leave the house. She then asked him, as to why the door was locked and what was inside. When her husband opened the door she saw the deceased lying dead on the bed and when she asked who killed him, the appellant replied that he along with Monuj had killed him. Thereafter she informed the police over phone. She then asked him, as to why the door was locked and what was inside. When her husband opened the door she saw the deceased lying dead on the bed and when she asked who killed him, the appellant replied that he along with Monuj had killed him. Thereafter she informed the police over phone. She further stated, that later on, police came and arrested her husband and also took the body to the police station. During cross-examination, she stated that she did not see the co-accused Monuj coming to their house. It was also elicited during her cross-examination, that her husband was not available in the house on the previous night. Her statement was recorded under section 164 Cr.P.C., which has been proved as Exhibit-4. We also notice that in her previous statement recorded under section 164 Cr.P.C. also, she made almost the similar statement before the Magistrate and her previous statement recorded under section 164 Cr.P.C., appears to be consistent with her evidence in Court including extra judicial confession made by the appellant. The cross-examination of this witness remained totally ineffective to create any dent in the testimony of this witness. In fact, her evidence that while she was washing clothes, she had seen her husband preparing to go out after locking the bedroom and on her insistence when the husband opened the door the body of the victim was found on the bed and that the accused made an extra judicial confession before her remained unchallenged in the cross-examination. 14. Pw-4 was a seizure witness of Exhibit-3, whereby a rope was seized by the police. This witness, however, stated in his cross-examination that he was not aware as to why his signature was obtained in Exhibit-3. 15. Pw-6 is the Investigating Officer. According to him, one TSI Jyotish Phukan initially made a telephone call to the Officer-In-Charge of the Golaghat Police station, stating that a person died in the house of the accused, whereupon a GD entry was made vide GDE No.571, Exhibit-6, by the Officer-In Charge and he was entrusted to investigate the matter. He further stated that on the basis of the said GDE, he reached the place of occurrence at about 12.00'o clock along with the Circle Officer and found the body of the deceased lying on the bed inside the house of Pw-3, who is the wife of the accused/appellant. He further stated that on the basis of the said GDE, he reached the place of occurrence at about 12.00'o clock along with the Circle Officer and found the body of the deceased lying on the bed inside the house of Pw-3, who is the wife of the accused/appellant. He further stated that the inquest report was prepared by the circle Officer. He also stated to have found a thin plastic rope about 21" inch in length near the body of the deceased and seized the same in presence of the witnesses. He also stated that later on, at about 3.30 pm a formal FIR was lodged, on the basis of which a case was registered and again he visited the place of occurrence when the accused was found hiding in the Goat shed within the boundary of the appellant wherefrom he apprehended the appellant and arrested him. 16. On our assessment of the evidence, we find that there was no direct evidence, and the conviction was recorded on the basis of circumstantial evidence. The uncontroverted testimony of the Pw-3, wife of the appellant was that while she was washing clothes she noticed her husband preparing to go out after keeping their bedroom locked. On being insisted by her, the appellant opened the door and she noticed that the victim was lying dead in their bed. She further stated that on being asked by her, the appellant confessed to have killed the victim along with co-accused Monuj Das and these evidence of Pw-3 as already indicated above remained unchallenged. This apart, her evidence is also found to be very much consistent and coherent through all the stages of the proceeding inasmuch as, her previous statement recorded by the Magistrate also corroborated her evidence in Court. The testimony of Pw-3 that immediately after the occurrence she informed the police over phone also finds support from the evidence of the Pw-6 and the GD entry, Exhibit-6, inasmuch as, according to Pw-6, one police officer of the local police outpost has informed the O/C about the occurrence over phone, whereupon the GDE was made and the Pw-6 proceeded to the place of occurrence. In our considered opinion, the Pw-3, who happens to be the wife of the appellant is a fully reliable and trustworthy witness, inasmuch as, there is nothing on record to view her evidence with any suspicion. 17. In our considered opinion, the Pw-3, who happens to be the wife of the appellant is a fully reliable and trustworthy witness, inasmuch as, there is nothing on record to view her evidence with any suspicion. 17. It has been clearly established from the uncontroverted evidence of Pw-3 that immediately before the occurrence the victim was inside the bedroom of the appellant and he was also with him and the appellant tried to leave the room keeping the body of the deceased in his bedroom after locking the room and thereby attempted to conceal the facts. The evidence of the doctor clearly shows that death was caused by strangulation by ligature. The alleged ligature was also seized near the body. Medical evidence that death was due to asphyxia by strangulation and the presence of ligature encircling the neck above the thorax cartilage speaks loud and clear that death was caused due to manual strangulation in all probability by the rope, seized vide Exhibit-3. Evidently there was no other person present at the relevant time. Although the appellant stated in his extra-judicial confession, that co-accused Monuj was also involved, except the confession of the appellant there was no other evidence to prove the presence of any second person. Thus, all these circumstances that the death of the deceased was caused at about 11.00 am inside the house of the appellant, where he was alone, that the appellant attempted to conceal the occurrence and he tried to leave the house keeping the body concealed inside the room, the consistent medical evidence indicating homicidal death of the deceased by manual strangulation with the help of ligature, coupled with the extrajudicial confession made by the appellant before his wife Pw-3, in our considered view completed the chain of events leading to the irresistible conclusion that it was none but the accused/appellant who has caused the death of the deceased by strangulating him with the help of a ligature. Therefore, we find no reason to differ with the learned Sessions Judge having found the accused guilty of committing offence of murder of the victim. Accordingly, we upheld the conviction and sentence of the appellant and dismiss the appeal. 18. Appreciating the assistance rendered by Mr. B Baruah, learned Amicus Curiae, we hereby provide that he will be entitled to professional fees of Rs.7500/-. Accordingly, we upheld the conviction and sentence of the appellant and dismiss the appeal. 18. Appreciating the assistance rendered by Mr. B Baruah, learned Amicus Curiae, we hereby provide that he will be entitled to professional fees of Rs.7500/-. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Mr. Baruah. 19. Send down the LCR along with a copy of this judgment.