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2020 DIGILAW 291 (GAU)

Sujit Manki v. State Of Assam

2020-02-27

M.R.PATHAK, NELSON SAILO

body2020
JUDGMENT M. R. Pathak, J. - This appeal from jail is preferred by the accused appellant, namely, Sri Sujit Manki being aggrieved with the judgment dated 11.09.2014 whereby the learned Sessions Judge, Dibrugarh in Sessions Case No. 58/2012 arising out of Joypur Police Station Case No. 24/2011 corresponding to GR Case No. 1208/2011, whereby he has been convicted under Section 302 IPC for committing murder of Pradip Manki and sentenced to undergo Rigorous Imprisonment for life with fine of Rs. 2,000/-in default, to undergo Rigorous Imprisonment for 3 (three) months. 2. Heard Ms. Karabi Saikia, learned Amicus curie for the appellant and Mr. Nava Kumar Kalita, learned Additional Public Prosecutor, Assam for the State. 3. The prosecution case, as emerges from the First Information Report dated 13.06.2011 (Exhibit-6) lodged by the informant Smti. Jugita Manki (PW.1) before the Officer-in-Charge of Joypur Police Station is that around 08:00 a.m. on 11.06.2011 while informants husband Pradip Manki, resident of Deriyal Gaon, was returning home after ploughing in the paddy field, co-villager Sri Sujit Manki, who was lying in ambush with a dao, suddenly appeared in front of her husband, dealt dao blows on his head, ear and nose and caused injury. Though, he was immediately taken to Assam Medical College Hospital, Dibrugarh, the injured Pradip Manki died on the way. The informant also alleged that when she received the information that her husband Pradip Manki was wounded and she went to the place of occurrence, said Sujit Manki and his wife held her by hair, laid her on the ground and assaulted her. The informant stated that as she was busy in performing the last rites of the deceased, the filing of the ejahar got delayed. 4. The said FIR of the informant Smti. Jugita Manki (PW.1), was registered as Joypur Police Station Case No. 24/2011 under Sections 302/323/35 of the Indian Penal Code corresponding to G.R. Case No. 1208/2011 against the accused person, the appellant herein. 5. 4. The said FIR of the informant Smti. Jugita Manki (PW.1), was registered as Joypur Police Station Case No. 24/2011 under Sections 302/323/35 of the Indian Penal Code corresponding to G.R. Case No. 1208/2011 against the accused person, the appellant herein. 5. During investigation, the Investigating Officer visited the place of occurrence, drawn its sketch map (Exhibit-7), recorded the statements of the persons acquainted with the facts of the case under Section 161 Cr.P.C., recovered and seized a 1 feet iron made Naga dao with 4 inch wooden handle from the house of the accused that was produced by his wife, Bhanu Manki (PW.5), alleged to be used by the accused in committing the crime, vide Seizure List/Material Exhibit No. 09/11 in presence of three witnesses (Exhibit-1), arrested the accused person on 13.06.2011, obtained the Medico Legal Report of the informant victim concerned from Namrup State Dispensary (Exhibit-5), obtained the Inquest report done on the dead body of the deceased Pradip Manki by personnel from Borbari Police Out Post at Assam Medical College and Hospital (AMCH), Dibrugarh in presence of witnesses (Exhibit-3) as well as the dead body challan of said deceased for its postmortem examination to AMCH, Dibrugarh (Exhibit-4), obtained his postmortem examination report from AMCH, Dibrugarh (Exhibit-2) and on completion of the investigation, finding incriminating materials against the accused person, filed the Charge Sheet in said Joypur PS Case No. 24/2011 on 31.10.2011 vide No. 22/2011 (Exhibit-8) against the accused appellant, for the offences under Sections 302/323/354 of the IPC. Finding the offences triable by the Court of Sessions, learned Chief Judicial Magistrate, Dibrugarh, by its order dated 23.03.2012 committed the said G.R. Case No. 1208/2011 to the Court of learned Sessions Judge, Dibrugarh. 6. On receipt of the case record of said G.R. Case No. 1208/2011, the same was registered and numbered as Sessions Case No. 58/2012 in the Court of the learned Sessions Judge at Dibrugarh. By order dated 11.04.2012 learned Sessions Judge, Dibrugarh framed charge under Sections 323/302 IPC against the accused/appellant, which was read over and explained to him, to which the accused appellant pleaded not guilty and claimed to be tried. Accordingly, the Trial of the case began. 7. In the trial, the prosecution side examined 10 (ten) witnesses to bring home the charges against the accused and defence cross examined them. But the defence did not adduce any evidence. Accordingly, the Trial of the case began. 7. In the trial, the prosecution side examined 10 (ten) witnesses to bring home the charges against the accused and defence cross examined them. But the defence did not adduce any evidence. On conclusion of recording of evidence of the prosecution witnesses, the learned Trial Court on 28.08.2014 recorded the statement of the accused/appellant under Section 313 CrPC. After conclusion of the trial, on perusal of evidence on record, the Trial Court came to the finding that the guilt of the accused/appellant under Sections 302 IPC has been proved and for that reason he was convicted and sentenced as noted above, which gave rise to this appeal. 8. Ms. Karabi Saikia, learned Amicus Curie for the appellant submitted that the evidence on record adduced by the prosecution failed to prove the guilt of the accused beyond all reasonable doubt and that the learned Trial Court on the basis of such evidence arbitrarily came to the conclusion that it is the accused who committed murder of the victim Pradip by inflicting dao blow. As such the impugned conviction and sentence needs to be interfered by the Court and the accused appellant should be set at liberty. 9. However, Mr. Nava Kumar Kalita, learned Additional Public Prosecutor submitted that the prosecution by adducing sufficient evidence proved the guilt of the accused beyond all reasonable doubt and that the learned Trial Court by the impugned judgment have rightly convicted and sentenced the accused person of the case. Mr. Kalita submitted that the impugned judgment of conviction and sentence does not call for any interference. 10. Let us briefly go through the evidence recorded by the learned Trial Court. 11. PW.1, Smti. Jugita, informant of the case and wife of the deceased deposed before the Court that the incident took place around 7/8 a.m. She deposed that in the morning of the incident her husband went to the paddy field near their house to plough it and when he was returning home after ploughing, the accused called her and in front of the house of the accused, her husband stopover to talk with the accused and then she left for her house to serve food to her son. Then on hearing commotion when she came outside of her house, she saw that the accused was chasing her husband Pradip with a dao and assaulted him and on receiving injury, her husband Pradip fell down. She also deposed that when she tried to save her husband Pradip, the accused also assaulted her, gave blows and kicks and at that time she was pregnant. She further deposed that she took her husband to Namrup Hospital and from their he was referred to Dibrugarh and on way to Dibrugarh her husband expired and thereafter she lodged the ejahar (Exhibit-6) before the Joypur Police Station. She further deposed that when Police visited the house of the accused, his wife produced a dao (Material Exhibit-1) that was seized by the Police in presence of her and others and her thumb impression was taken on the seizer list (Exhibit-1). During her cross examination by the defence, PW.1 stated that a person residing near the Police Station wrote the ejahar on her behalf and the place of occurrence is not far from her house. She also stated that her husband was not suffering from any disease and denied the suggestion that she did not see the incident and also stated that the house of the accused person is near to the place of occurrence. 12. PW.2, Sri Jiba Krishna Murari, VDP Secretary, a seizure witness, deposed before the Court that the both the accused and the deceased were brothers and after some time of the incident, PW.1 Jugita, went to his house in a run and informed him that the accused had cut her husband to death with a dao and then he over phone informed the Joypur Police Station about the incident and then he was directed to take necessary steps for treatment of the injured. He also deposed that after arranging a vehicle, he sent the injured to Namrup for his treatment, from where he was referred to Dibrugarh, but on his way, the injured victim died. He further deposed that when he arrived at the place of occurrence, he saw cut injuries on the back and face of Pradip (injured) and found him smeared all over with blood and two days later when Police visited the house of the accused, his wife (PW.5) produced a dao that was seized by Police, by a seizer list wherein he had given his signature. During his cross examination he stated that his house is about three hundred meters away from the house of Pradip and that he did not witness the incident. 13. PW.3, Sri. Buda Orang, in his evidence deposed that the incident occurred around 7/8 in the morning and while he was on his way to the paddy field, he heard commotion in the direction of his house and he returned to see what had happened and saw the dead body of Pradip lying in the back side of their granary with injuries on his the person. He also deposed that hearing hue and cry, the boys fled away and that he didnt know who had killed Pradip. He deposed that later he came to know from public that Pradip was killed by his own elder brother, who was arrested by police. During his cross examination PW.3 stated that he did not know from whom he came to know that Pradip was killed by his elder brother but, he stated that he came to know it from public. 14. PW.4, Sri Langphu Manki, deposed before the Court that the deceased Pradip was the younger brother of the accused and that in the morning of the incident while he was on way for his daily wage work, he saw the accused in front of his house altercating with Pradip, but did not notice whether they were carrying anything on their hands. He also deposed that seeing both of them altercating with each other, he left for his work and in the afternoon when he returned home he came to know that the accused had cut Pradip to death. During his cross examination by the defence, the PW.4 stated that he did not witness the incident himself and he does not know the reason for their altercation. He also stated he does not know whether Pradip took liquor on the day of the incident or not but sometimes he used to quarrel with others on consuming liquor, for which some people did not like him. He also stated that he is not aware if some other person had killed Pradip. 15. PW.5, Smti. Bhanu Manki, wife of the accused and a seizure witness deposed that accused is her husband whereas the deceased was her brother-in-law and that she does not know how he died. He also stated that he is not aware if some other person had killed Pradip. 15. PW.5, Smti. Bhanu Manki, wife of the accused and a seizure witness deposed that accused is her husband whereas the deceased was her brother-in-law and that she does not know how he died. At that stage, the said PW.5 was declared hostile by the prosecution. During her cross examination by the prosecution, PW.5 denied that she had given any statement before Police that on the day of the incident, in the morning there was an altercation between the accused, i.e., her husband and her brother-in-law in front of their gate and in course of said altercation, her husband inflicted dao blow and fled away from the place of occurrence and that her husband chased him with a dao in his hand. During her said cross examination by the prosecution, PW.5 stated that on reaching home, her husband told her that he had killed Pradip with the dao after that he had fled away from the back side of their house and later she found a dao in the backyard of their house and kept the same in their house after washing it and Police took the said dao from her possession obtaining her thumb impression in the seizure list. PW.5, denied that she had given false evidence since the accused is her husband. The defence denied to cross examination said PW.5. 16. PW.6, Sri Buturu Orang, also a seizure witness, deposed before the Court that deceased Pradip was the younger brother of the accused and that when he came home and was washing his hands and feet near the tube well in the morning around 08:00 am, he saw accused chasing Pradip with a dao and to save himself Pradip entered into their courtyard and on reaching the backyard of their compound, the accused inflicted dao blow on Pradip, because of which he fell down there itself and that after inflicting the injures accused left the place and few minutes thereafter, wife of the deceased and neighbors arrived therein and took Pradip from that place. He also deposed that he saw blood stain all over the body of the injured Pradip. He also deposed that he saw blood stain all over the body of the injured Pradip. During his cross examination PW.6 stated that house of the accused is about 25 nol from his house and adjacent to his house, there are other houses and at the time of occurrence his wife Ramia Orang and his brother Buda Orang (PW.3) were present in his house who also witnessed the incident. In his cross examination said PW.6 also stated that he did not see the accused inflicting the injury upon the deceased Pradip, but he saw the accused and Dilip while running away from the place of occurrence and saw the dao in the hand of the accused. He stated that he does not know the cause of occurrence and that the accused and the deceased being brothers used to reside separately. 17. PW.7, Sri Bubul Manki, a hearse witness, deposed that on the day of the incident around 08:00 am when he return from paddy filed, Jugita (PW.1), Pradips wife told him that her husband got injury and he will have to take him to hospital and accordingly he accompanied Pradip along with family members to Namrup Dispensary and the attending Doctor immediately referred him to Assam Medical College Hospital, Dibrugarh, where he was declared dead by Doctor and that he had seen one injury on the back side of Pradip. The defence declined the cross examination of the PW.7. 18. PW.8, Dr. The defence declined the cross examination of the PW.7. 18. PW.8, Dr. Manuj Kumar Singha, the autopsy doctor who performed the post mortem examination on the person of the deceased Pradip found the following injuries on Pradip during his post mortem examination - i) One cut injury present on right side of the forehead of size 6 x 1 cm into bone deep; ii) One cut injury present over the temporal area of the scalp of size 4 x 1 cm into bone deep; iii) One cut injury present over from cheek (right side) to right lateral side of the next, size 14 x 3 cm, right side mandible also cut; iv) One cut injury present left side temporal area of the scalp, size 4 x 1 cm into bone deep; v) One cut injury present backside from right lateral side of the neck to 3 cm left from mid line size 11 x 2.5 cm into muscle deep; vi) One cut injury present over the right soldier of size 6.5 cm x 2 cm into bone deep; vii) One cut injury present left side just below the left scapula of size 10 x 2 cm into bone deep; Both lungs healthy and pale. Heart healthy. Abdominal organs congested. Brain congested. Membrane bilateral subdural hemorrhage present. Liver, spleen, kidneys all healthy and pale. Bladder healthy and empty. Genital organs healthy. Said autopsy doctor found that the abdominal organs and brain of the deceased congested, Membrane bilateral subdural, Hemorrhage present on the person of the deceased and he opined that death of the deceased was due to combined effect of both coma, hemorrhage and shock as a result of the injuries as described and that all the injuries were ante mortem in nature, caused by sharp cutting weapon and homicidal in nature and that the time of death is about 2 to 6 hours. PW.8 also opined that the head injury inflicted on the deceased was sufficient to cause death of a person in the ordinary course of nature. He stated that Exhibit-2 is the post mortem examination report and he identified his signature on it. He also stated that Exhibit-3 is the inquest report of the deceased identified his signature in it and that Exhibit-4 is the dead body challan. Defence declined to cross examine said PW.8, the autopsy doctor. 19. PW.9, Dr. He stated that Exhibit-2 is the post mortem examination report and he identified his signature on it. He also stated that Exhibit-3 is the inquest report of the deceased identified his signature in it and that Exhibit-4 is the dead body challan. Defence declined to cross examine said PW.8, the autopsy doctor. 19. PW.9, Dr. Dipak Das, a doctor and Medical and Health Officer of Joypur deposed that on 13.06.2011 at 7:00 pm while he was at Joypur State Dispensary he had examined Miss. Jugita Manki (PW.1) wife of the deceased who was escorted by a woman home guard and found the following injuries on her person- i) Healed injury marked on nail bed of ring and little finger of right hand ii) Swelling of middle finger of right hand and the age of injury is about 60 hours with blunt weapon having simple injury. He stated that Exhibit-5 is the medical report of said Jugita Manki and identified his signature in it. Defence declined to cross examine said PW.9, the doctor who attended the informant. 20. PW.10, Sri Jugal Krisha Senapati, ASI of Assam Police, the investigating officer of the case, deposed that after filing the ejahar (Annexure-6), by Smti. Jugita Manki (PW.1), he rushed to the place of occurrence with the informant on being entrusted with the case, prepared a Sketch Map of the place of occurrence (Exhibit-7) with his signature in it, seized a Naga Dao from possession Bhanu Manki (PW.5), wife of the accused Sujit Manki, in presence of witnesses, forwarded Jugita Manki for her medical treatment. He stated that as the deceased Pradip died on way to the Assam Medical College and Hospital, Dibrugarh, it is the Borbari Outpost who conducted the inquest report upon the deceased. He further deposed that he arrested the accused Sujit Manki and after due interrogation sent him to judicial custody. Obtaining the medical report of the deceased as well as the victim and finding incriminating materials during the investigation, the then officer-in-charge of Joypur Police Station submitted the charge sheet in the case against the accused under Section 302/323/354 IPC. He further deposed that he arrested the accused Sujit Manki and after due interrogation sent him to judicial custody. Obtaining the medical report of the deceased as well as the victim and finding incriminating materials during the investigation, the then officer-in-charge of Joypur Police Station submitted the charge sheet in the case against the accused under Section 302/323/354 IPC. Said PW.10, Investigating Officer of the case further deposed that he had examined Bhanu Manki (PW.5) wife of the accused (who was declared hostile by the prosecution) who stated before him that on the day of occurrence in the morning there was an altercation between her husband and her brother-in-law (Pradip) in front of their gate and in the course of such altercation her husband inflicted injury on the person of Dilip and left the place of occurrence and her husband, accused Sujit chased the said victim with a dao in his hand and when he reached home thereafter, the accused told her that he has killed Pradip with a dao and after that he fled way by the back of their house and later on she found the dao in the backyard of their house and after washing, she kept the same in her house, which was taken away by police from her possession later on. During his cross examination by the defence, PW.1 denied the suggestion that the PW.5 did not say before him as he deposed and he stated that the seized dao was not sent for forensic examination. He also stated that no cause was mentioned in the FIR for committing the offence and that the informant did not tell him about the same. 21. The accused in his Section 313 CrPC statement denied all the acquisitions made by the prosecution against him and though asked by the learned Trial Judge, the accused refused to give any defence evidence. It is seen that during recording of his statement under section 313 CrPC on being told that PW.1 Smti. Jugita his sister-in-law and wife of the deceased deposed that at the time of the incident around 7/8 am while she was in her house and after sometime while her husband returned home after ploughing in the paddy field, the accused called her and at that moment her husband stopover to talk with him (Question No.1), the accused to that query, answered affirmatively. 22. 22. We have seen that PW.1, Smti. Jugita Manki deposed that she saw the accused chasing her husband Pradip and assaulting him with a dao and on sustaining injury her husband Pradip fell down and that when she tried to save her husband Pradip, the accused also assaulted her, gave blows and kicks. This evidence of PW.1 could not be demolished by the defence and remained unrebutted. Said evidence of PW.1 is also corroborated by the post mortem examination report of the deceased, Exhibit-2 and the numbers of injuries sustained by the deceased as proved by the PW.8, the autopsy doctor. 23. We have also noticed that though PW.5, Bhanu Manki, wife of the accused though declared hostile by the prosecution, but she deposed that on reaching home, her husband, i.e., the accused told her that he had killed Pradip with the dao and after that he fled away by the rare side of their house and her said statement has been corroborated by the PW.10, Sri Jugal Krisha Senapati, the Investigating Officer of the case. 24. Further, the evidence of PW.6, Sri Buturu Orang that while he was washing his hands and feet near the tube well in the morning around 08:00 am, he saw accused chasing Pradip with a dao and Pradip while trying to save himself entered into their courtyard and on reaching the backyard of their compound, the accused inflicted dao blow on Pradip because of which he fell down there itself and that after inflicting the injures accused left the place. Though said PW.6, Buturu Orang in his cross examination by the defence stated that he did not see the accused while inflicting injury upon the deceased Pradip, but even in his said cross examination, he reiterated that he saw the accused while running away from the place of occurrence and that he saw the dao in the hand of the accused. Above shows that the evidence of said PW.6, Buturu Orang remained intact and the defence could not destroy it. It is also seen that said evidence of PW.6, Buturu Orang was brought to the notice of the accused in his Section 313 CrPC statement and the accused simply denied it, without any explanation. 25. Above shows that the evidence of said PW.6, Buturu Orang remained intact and the defence could not destroy it. It is also seen that said evidence of PW.6, Buturu Orang was brought to the notice of the accused in his Section 313 CrPC statement and the accused simply denied it, without any explanation. 25. Considering the entire evidence on record including the Exhibits exhibited by the prosecution, we are of the view that the prosecution has proved the guilt of the accused appellant Sujit Manki beyond all reasonable doubt. 26. From the evidence of PW.4, Sri Langphu Manki, we have noticed that prior to the incident, there was an altercation between the accused and the deceased. But from the disclosure of the evidence that accused appellant chased the victim with dao and found that there were seven numbers of cut injuries on the person of the deceased, all caused by sharp cutting weapon, out of which five were on vital parts of his body i.e., in his forehead, temporal area, neck and cheek, which were proved by PW.8, the autopsy doctor, we considered not to alter the charge inflicted upon the accused appellant Sujit Manki. 27. For the reasons above, we are of the opinion that the impugned judgment and conviction dated 11.09.2014 passed by learned Sessions Judge, Dibrugarh in Sessions Case No. 58/2012, convicting the accused appellant under Section 302 IPC, does not call for any interference. Accordingly, the appeal stands dismissed. 28. We appreciate the assistance rendered by both, the learned amicus curiae as well as the Additional Public Prosecutor for the State in adjudicating the matter. The State Legal Service Authority, Assam, Guwahati shall pay a sum of Rs. 7,500/- as remuneration to Ms. Karabi Saikia, learned amicus curiae of the case. 29. We have noted that in the impugned judgment dated 11.09.2014, the learned Trial Judge had already awarded victim compensation under Section 357(A) CrPC , to the family of the victim. 30. Registry shall return the LCR to the Court of learned Sessions Judge, Dibrugarh, with a copy of this order. Registry shall also furnish a copy of this order to the accused appellant Sri Sujit Manki through the Superintendent/Jailor of the Central Jail, Dibrugarh.