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2020 DIGILAW 215 (GAU)

Mridul Sonowal @ Gujara v. State Of Assam

2020-02-17

HITESH KUMAR SARMA, SUMAN SHYAM

body2020
JUDGMENT Suman Shyam, J. - Heard Mr. Atal Tiwari, learned Amicus Curiae, appearing on behalf of the appellant. We have also heard Mr. R. J. Baruah, learned Addl. Public Prosecutor, Assam, appearing for the State. 2. This appeal is directed against the judgment and order dated 14.11.2018 passed by the learned Sessions Judge, Dibrugarh in Sessions Case No.147/2013 whereby, the sole appellant had been convicted under section 302 of the Indian Penal Code (IPC) for causing homicidal death to the deceased Achyut Sonowal and sentenced to undergo imprisonment for life and also to pay a fine of Rs.1000/- with default clause. 3. The prosecution case, in a nutshell, is that there was a quarrel between the deceased and the accused. On 06.01.2013 at about 8.00 p.m. when the deceased was waiting in front of his house, the accused had provoked him by asking whether he would like to fight and thereafter inflicted cut injuries on the abdomen of the deceased with a sharp 'mit' dao. The victim was immediately rushed to the Sasoni Police Outpost in a maruti vehicle in an injured condition wherefrom, he was brought to the Naharani Hospital and from there he was taken to the Assam Medical College & Hospital, Dibrugarh where he succumbed to his injuries. The police had later seized the dao from the place of occurrence on being handed over by the victims father Sri Bhupen Sonowal. 4. On 08.01.2013, the father of the deceased Sri Bhupen Sonowal had lodged an ejahar before the Officer-in-Charge, Sasoni Police Outpost based on which, G.D. Entry No.107 was made and the F.I.R. was forwarded to the Naharkatia Police Station. Based on the F.I.R., Naharkatia P.S. Case No.3/2013 was registered under section 326 IPC and the matter was endorsed to the I.O. for carrying out necessary investigation. Due to the death of the victim, section 302 of the IPC was subsequently added. Upon completion of investigation, the I.O. had laid charge-sheet against the accused under section 302 IPC. Since the accused had pleaded innocence and claimed to be tried, the matter was sent up for trail. 5. The prosecution side had examined as many as 12 witnesses which included three eyewitnesses. On completion of recording of the testimonies of the prosecution witnesses, the statement of the accused was recorded under section 313 of the Cr.P.C. where he had denied the circumstances put to him. 5. The prosecution side had examined as many as 12 witnesses which included three eyewitnesses. On completion of recording of the testimonies of the prosecution witnesses, the statement of the accused was recorded under section 313 of the Cr.P.C. where he had denied the circumstances put to him. The accused had examined one witness (DW-1) in support of his plea of alibi. 6. The PW-1 Bhupen Sonowal is the informant in this case and he has deposed that the deceased was his son and he had lodged the ejahar in this case. PW-1 has stated that about 7 months ago, when his son was standing in front of his house, at about 8.00 p.m. the accused had dealt a cut blow in the abdomen of the deceased in presence of his wife. After the incident, the family members took the injured to the AMC Hospita, Dibrugarh and after two days of the incident, his son Achyut Sonowal died in the hospital. Therefore, he had filed ejahar in the Merbil Police Outpost and Ext-1 is the ejahar lodged by him. During his cross-examination, PW-1 has stated that there was no gate in his house and he used C.I. sheet to close the gate. It was also deposed by the PW-1 that the occurrence took place in front of his house. The witness has, however, denied the suggestion that the deceased had sustained injuries by dashing against the sharp C.I. sheet. 7. PW-2 Smti. Pallabi Sonowal is one of the three eye-witnesses in this case. Deceased Achyut Sonowal was the brother-in-law of PW-2. In her deposition, PW-2 has categorically stated that on the day of the incident, the accused was coming by creating 'hulla' and told Achyut Sonowal, who resided in their house, that he is watching him. Then Achyut Sonowal (deceased) had closed the gate within time and at that time she was present there. Then she saw the accused had stabbed in the abdomen of Achyut (deceased) with a 'mit' dao and Achyut fell down. PW-2 has stated that the wife of the accused who was with him had snatched away the dao and threw it away at a nearby place. Later on, the police had seized the dao from the nearby place of occurrence. PW-2 has proved the seizure-list Ext-2 by confirming her signature Ext-2(1) therein. PW-2 has stated that the wife of the accused who was with him had snatched away the dao and threw it away at a nearby place. Later on, the police had seized the dao from the nearby place of occurrence. PW-2 has proved the seizure-list Ext-2 by confirming her signature Ext-2(1) therein. During her cross-examination, PW-2 has stated that there was a quarrel as the accused had assaulted her husband about six months back. She has also stated that she saw the occurrence under the electric light in the verandah and has denied the suggestion that there was no electricity in their house. PW-2 has also denied the suggestion put by the defence side that Achyut had got injury on his person on getting hit against the C.I. sheet corner. 8. PW-3 Smt. Noni Sonowal is the sister-in-law of the accused and is also related to the informant, who is her uncle. PW-3 has stated that on the day of the incident she had heard 'hulla' outside and came out and saw that the accused had stabbed Achyut in his abdomen and then Achyut fell down by crying that he has been cut by the accused. PW-3 has stated that she had seen Achyut holding the cut portion. Then she, along with Pallavi, took Achyut inside the house and tied the injured portion with clothes. The wife of the accused caught hold of Achyut and took him inside the house after throwing the dao. PW-3 has also stated that the victim was taken to the hospital in a vehicle belonging to a nearby person and he died in the AMC Hospital, Dibrugarh after two days. The police was informed and they came and seized the dao used in commissioning the crime which was lying in front of their house. PW-3 has identified her signature as Ext-2(3) in the seizure-list. During her cross- examination, PW-3 has stated that the incident took place in front of the gate of the house of Achyut and she had seen the occurrence with her own eyes in electric light. PW-3 has also confirmed that Achyut had fallen down in front of his gate. This witness has also denied the suggestion that Achyut had incurred injuries from the sharp edge of the C.I. sheet gate. 9. PW-4 Smti Bharati Sonowal is the wife of the deceased and the third eye-witness in this case. PW-3 has also confirmed that Achyut had fallen down in front of his gate. This witness has also denied the suggestion that Achyut had incurred injuries from the sharp edge of the C.I. sheet gate. 9. PW-4 Smti Bharati Sonowal is the wife of the deceased and the third eye-witness in this case. PW-4 has deposed that on the date of the occurrence, the accused had attacked her husband with a dao as a result of which he fell down. PW-4 has deposed that she had seen the incident with her own eyes. On the day of occurrence, she told her husband to close the gate and when her husband went to the gate the accused came and she had heard a sound. Immediately she ran near the gate and saw that the accused had attacked her husband with a dao as a result of which he had sustained cut injury in his stomach. Immediately thereafter, with the help of her mother-in-law and sister-in-law, she took him inside the house. After sometime they had arranged a vehicle and took the victim to Naharani Hospital and the victim was referred to the Duliajan Hospital. Later on, the injured victim was taken to the Assam Medical Cololege Hospital, Dibrugarh where he died after two days. During her cross- examination PW-4 has denied the suggestion made by the defence that she had not seen the occurrence in the darkness of night. 10. PW-5 Dr. Subhajyoti Deka was the on-duty Assistant Professor in the department of Forensic Medicine, Assam Medical College, Dibrugarh and on 09.01.2013 at about 12:00 p.m. he had performed post-mortem examination on the body of Achyut Sonowal. PW-5 has proved the post-mortem report Ext-3. According to the post mortem report, the following injuries were found on the dead body :- ' Injuries :- 1. Stitched wound over the abdomen of 21 cm in length, right peramediam 15 cm below the xiphoid and 11 cm above the public symphysis, partially healed, vertically placed; 2. One colostomy wound (surgically made) over the left side of the abdomen 7.5 cm from mid line and 5 cm above the iliac crest; 3. Drain tube present over the right illiacfossa of size 2 cm x .5 cm surgically made. On internal examination, contusion present on the right temporal region of 6cm x 6 cm. One colostomy wound (surgically made) over the left side of the abdomen 7.5 cm from mid line and 5 cm above the iliac crest; 3. Drain tube present over the right illiacfossa of size 2 cm x .5 cm surgically made. On internal examination, contusion present on the right temporal region of 6cm x 6 cm. Brain puss filled, spleen, kidney puss filled, peritoneum filled with liquid approximately 2 litres foul smell. Lung filled with multiple puss pocket over the both side.' 11. PW-5 had opined that death was due to shock as a result of septicaemia consequent to injuries sustained as described. All injuries were antemortem. According to PW-5, injury No.1 was sufficient to cause death of a person in ordinary course of nature. 12. PW-6 Birinchi Saikia had deposed that on being requested by Sri Subhash Gogoi (PW-7), he came to the AMC Hospital, Dibrugarh to donate blood to the victim. 13. PW-7 Subhash Gogoi is a resident of the neighbourhood of the deceased. The said witness did not support the prosecution case as a result of which, he was declared as a hostile witness. During his cross-examination by the prosecution side, this witness had denied the suggestion that he had suppressed relevant facts only to save the accused. The testimony of this witness is not of much importance in the facts and circumstances of this case. 14. PW-8, Sri Rohini Abhayapuria, who is a distant relative of the accused, had deposed that he had seen the dead body of the deceased and went to the crematorium while the last rites of Achyut Sonowal was being performed. Therefore, the testimony of this witness is also not of much importance in this case. 15. Sri Mintu Saikia PW-9 is an important witness in this case but during his deposition before the court, this witness had also not supported the prosecution case as a result of which, he was declared as a hostile witness. However, the statement of this witness recorded under section 161 of the Cr.P.C. was put to him by the prosecution side during his cross-examination and the witness had denied having made such statement. His statement was, however, brought on record and proved by the I.O. who was examined as PW-12. 16. However, the statement of this witness recorded under section 161 of the Cr.P.C. was put to him by the prosecution side during his cross-examination and the witness had denied having made such statement. His statement was, however, brought on record and proved by the I.O. who was examined as PW-12. 16. PW-10 Smti Moneswari Sonowal is the mother of the victim and she has categorically deposed before the Court that on the day of occurrence her daughter-in-law Bharati Sonowal and her 'Jaa' (sister-in-law) Smt. Puneswari Sonowal were present at home. At that time, her son Achyut Sonowal came to the house. When a hue and cry was raised by her 'Jaa' that her son was being assaulted then she came out of the house and saw that Achyut was lying on the ground. PW-10 has stated that her son Achyut Sonowal had told her that he was assaulted by the accused Mridul with a dao on his belly. Then she arranged for a vehicle from the nearby people and took the victim to Naharani Hospital wherefrom he was sent to the Assam Medical College Hospital at Dibrugarh. PW-10 has stated that her son Achyut Sonowal had died in the AMC Hospital. From the testimony of PW-10 it is apparent that she had brought on record the dying declaration made by the deceased whereby theinjured victim had stated that it is the accused Mridul Sonowal who had assaulted him with a dao. During cross-examination of PW-10, her testimony could not be shaken by the defence side. 17. From the discussions made above it will be apparent that the PWs-2, 3 and 4 are the eye- witnesses in this case and the testimony of these witnesses corroborated the version given by one another. The fact that it is none other than the accused Mridul Sonowal who had assaulted the victim Achyut Sonowal with a dao on his belly also stands established from the testimony of PW-10 who has brought on record the dying declaration made by her injured son immediately after being assaulted by the accused. 18. Mr. Tiwari has drawn our attention to the evidence of PW-9 and submits that despite being a key witness, he did not support the prosecution case. 18. Mr. Tiwari has drawn our attention to the evidence of PW-9 and submits that despite being a key witness, he did not support the prosecution case. We, therefore, deem it appropriate to point out herein that the PW-9 though declared as a hostile witness, was confronted with the statements which he had earlier made before the police. His statement made before the Police was put to him during his cross-examination. But the witness had denied having stated so before the Police. The statement of the witness made before the Police is quoted herein below :- 'On the day of occurrence, at around 8:00 pm, I received the phone call saying Achyut Sonowal had been assaulted by accused Mridul Sonowal with a mit dao and so, he needs to be taken to the hospital and asked me to bring my car. So, I got my Maruti car and took Achyut Sonowal to Sasoni Police Station. It was around 9:00 pm when I reached at the police station. At that time, Achyut was in his senses and was able to talk. When the Officer-in-charge asked Achyut as to who had assaulted him, he told that Mridul had assaulted him in his stomach with his dao. Then, I took him to Naharoni Hospital and the doctor of the said hospital referred him to AMCH, Dibrugarh where he succumbed to his injuries in the medical.' 19. During his deposition, the I.O., Sri Dinanath Bora, who had recorded the statement of PW-9, had brought on record, the statement of the said witness recorded under section 161 Cr.P.C. as follows :- ' On the day of occurrence, at around 8:00 pm, I received the phone call saying Achyut Sonowal had been assaulted by accused Mridul Sonowal with a mit dao and so, he needs to be taken to the hospital and asked me to bring my car. So, I got my Maruti car and took Achyut Sonowal to Sasoni Police Station. It was around 9:00 pm when I reached at the police station. At that time, Achyut was in his senses and was able to talk. When the Officer-in-charge asked Achyut as to who had assaulted him, he told that Mridul had assaulted him in his stomach with his dao. It was around 9:00 pm when I reached at the police station. At that time, Achyut was in his senses and was able to talk. When the Officer-in-charge asked Achyut as to who had assaulted him, he told that Mridul had assaulted him in his stomach with his dao. Then, I took him to Naharoni Hospital and the doctor of the said hospital referred him to AMCH, Dibrugarh where he succumbed to his injuries in the medical.' Therefore, in the above manner, the prosecution side had not only brought the statement made by the PW-9 before the police on record but the I.O. had also proved the same in accordance with law. If that be so, regardless of the fact that the PW-9 had been declared as a hostile witness, the fact that he had made the above statement before the police remains on record and would be a reliable piece of evidence. In other words, from the testimony of PW-12 it can be gathered that PW-9 had stated before the police that the accused Mridul Sonowal had hit the victim with a mit dao. The aforesaid version is consistent with the testimony of PW-10 who had also brought on record the dying declaration of the deceased implicating the accused in this case. 20. This brings us to the last issue in this case pertaining to the plea of alibi raised by the accused. We find that the defence side had examined one witness viz., Alarus Munda as DW-1 so as to prove the plea of alibi taken by the accused. However, from a careful examination of the testimony of DW-1 we find that although the witness had stated that on the date of occurrence the accused went along with him to 'Shaw Mill', yet, during his cross-examination DW-1 has stated that he did not know the date of death of Achyut nor did he know as to on which date, he was taken to the hospital. DW-1 has also stated that he did not know why the accused was arrested by the police. Therefore, even though DW-1 had stated that on the day of occurrence he was with the accused, yet, we find that the said witness did not know the date on which the incident had taken place. Therefore, his evidence would be of no probative value for the purpose of establishing the plea of alibi. Therefore, even though DW-1 had stated that on the day of occurrence he was with the accused, yet, we find that the said witness did not know the date on which the incident had taken place. Therefore, his evidence would be of no probative value for the purpose of establishing the plea of alibi. Since the defence side has not adduced any other evidence, hence, in our opinion, the plea of alibi raised by the appellant fails and is hereby rejected. 21. To sum up we find that the prosecution side has succeeded in establishing the charge brought against the accused under section 302 of the IPC by leading sufficient and cogent evidence which included the testimony of three eye-witnesses viz., PWs-2, 3 and 4. After examining their testimonies, we are unable to agree with the submission of Mr. Tiwari that these three witnesses cannot be treated as eye-witnesses. Therefore, we find ourselves in agreement with the view expressed by the learned trial court that the prosecution has succeeded in establishing the murder charge brought against the accused beyond all reasonable doubt. 22. Mr. Tiwari, learned Amicus Curiae, has pointed out certain contradictions in the testimony of PWs-3 and 10 to the effect that while the PW-3 has deposed that she had seen the occurrence with her own eyes under the electric light, PW-10, the mother of the victim had deposed that there is no electricity in their house and they use kerosene lamp at home. Mr. Tiwari has also pointed out that the PW-10 has not mentioned the name of Pallabi Sonowal as one of the persons being present at home and as such PW-2, cannot claim herself to be an eye-witness nor can the PW-2 claim to have seen the occurrence with her own eye. The aforesaid submission of Mr. Tiwari, in our view, cannot be countenanced for the following reasons. Firstly, the minor discrepancies in the testimony of this witnesses even if taken on face value, there cannot be any doubt about the fact that the deceased in this case had suffered a homicidal death and the incident took place in front of the gate of the house of deceased. Firstly, the minor discrepancies in the testimony of this witnesses even if taken on face value, there cannot be any doubt about the fact that the deceased in this case had suffered a homicidal death and the incident took place in front of the gate of the house of deceased. It has also come out from the testimony of the witnesses including the PWs-1 and 2 that the wife of the accused rushed to the place of occurrence and threw away the dao from the hands of her husband and took him inside the house. The aforesaid version of the PW-1 finds due corroboration from the testimony of PW-3. From a careful scrutiny of the evidence adduced by PWs-1, 2, 3 and 10, we do not find any contradiction insofar as the occurrence is concerned. The variations, if any, in the version rendered by PWs-3 and 10, in so far as presence of electricity connection in their house, in our opinion, would not have any material bearing in this case since, it has clearly come out from the evidence brought on record that it was possible to identify the assailant in whatever surrounding light was available on the night of the incident. 23. We now turn to the alternative argument advanced by Mr. Tiwari that even assuming that the accused had assaulted the deceased, even then this would be a case where there was want of intention to kill and therefore, the conviction be converted to one under section 304 Part-II of the IPC. The evidence brought on record indicates about some quarrel between the deceased and the accused but we find that such quarrel took place long before the assault was made by the accused. There is no other evidence available on record for this Court to infer that the assault was immediately preceded by any provocation meted out by the deceased or any other person from his family. Therefore, it cannot be held that the accused had acted without pre-meditation or under any provocation so as to inflict fatal injury on the body of the deceased. Moreover, the nature of injury inflicted by the accused in the abdominal region of the victim leaves no room for doubt that the accused not only had the knowledge but had also intended to kill the deceased. Moreover, the nature of injury inflicted by the accused in the abdominal region of the victim leaves no room for doubt that the accused not only had the knowledge but had also intended to kill the deceased. After going through the judgment of the learned trial court we find this aspect of the matter has also been correctly dealt with by the learned court below and rightly rejected. 24. For the reasons stated herein above, we hold that there is no merit in this appeal. The appeal is accordingly dismissed. Send back the LCR. Before parting with the record, we wish to put on record our appreciation for the services rendered by Mr. Atal Tiwari as Amicus Curiae and direct the Registry to make arrangement for just remuneration to be paid to Mr. Tiwari.