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2021 DIGILAW 326 (GAU)

Dipen Nagbongshi v. State Of Assam

2021-03-26

MIR ALFAZ ALI, SUMAN SHYAM

body2021
JUDGMENT : Suman Shyam, J 1. Heard Mr. R. De, learned Amicus Curiae, appearing for the appellant. We have also heard Ms. B. Bhuyan, learned APP, Assam, appearing for the State/respondent No.1. None has appeared for the informant. 2. The instant appeal has been filed assailing the judgment and order dated 03/05/2018 passed by the learned Sessions Judge, Jorhat in connection with Sessions Case No. 50 (J-J)/2017 convicting the sole appellant under Section 302 of the IPC for committing murder of his father Hatiram and sentencing him to undergo rigorous imprisonment for life and also to pay fine of Rs. 20,000/-, in default, to undergo rigorous imprisonment for another six months for committing the offence under Section 302 of the IPC and also to suffer rigorous imprisonment for three years with fine of Rs. 5000/-with default stipulation for committing the offence under Section 201 of the IPC. 3. The prosecution case, in a nutshell, is that on 17/03/2017, Sri Jiten Nagbongshi (PW-9) had lodged an ejahar in the Madhapur Police Outpost informing that on the previous day, at around 12 noon, the accused Dipen Nagbongshi was raising a plinth to construct a new house and all of a sudden, he dealt a blow on the head of his father Hatiram with a “hoe” with which he was working, as a result of which, the later sustained grievous injuries and died. Later on, the accused had dug a pit on the plinth of the new house and buried the dead body. 4. Upon receipt of the ejahar, the In-charge of Madhapur Police Outpost had made GD entry No. 232/2017 and forwarded the ejahar to the Titabar Police Station for registering a case. Accordingly, Titabar Police Station case No. 61/2017 was registered under Section 302 of the IPC. The matter was entrusted to S.I. Birendra Bordoloi for carrying out investigation. Upon completion of investigation, the I.O. had submitted charge sheet against the accused under Section 302 of the IPC, based on which, charges were framed under Section 302/201 of the IPC. The charges were read over and explained to the accused but he had pleaded not guilty and claimed to be tried. As such, the matter went up for trial. 5. In order to establish the charges brought against the accused, the prosecution side had examined as many as 9 (nine) witnesses. The charges were read over and explained to the accused but he had pleaded not guilty and claimed to be tried. As such, the matter went up for trial. 5. In order to establish the charges brought against the accused, the prosecution side had examined as many as 9 (nine) witnesses. After conclusion of recording of evidence of the prosecution witnesses, the statement of the accused was recorded under Section 313 of the Cr.P.C, wherein he had admitted to the killing of his father. The defense side, however, did not adduce any evidence. 6. Upon appreciating the evidence brought on record, the learned trial Court was of the view that the charges brought against the accused under Section 302/201 of the IPC was established by the prosecution beyond reasonable doubt. Accordingly, the accused was convicted under Section 302/201 IPC and sentenced, as indicated above. 7. PW-1 Sri Dubaru Rajbongshi is the Uncle of the accused and he has deposed that the deceased Hatiram, who was the father of the accused, was murdered by him. PW-1 had stated that on the date of the incident, he was present in the Tea Estate. He returned home at about 1 p.m. in the afternoon and witnessed the accused doing his household work. The accused was filling earth in his house at that time. When he went near the house, he was directed not to come inside the compound as the accused was working at that time. PW-1 has also stated that after some time, the Gaon Burah of the village and other persons came to the house of the accused and then the accused had confessed before the villagers and himself that he had committed the murder of his father Hatiram Nagbongshi with the help of a hoe/spade, which was in his hand at that time. Thereafter, the accused had concealed the dead body in the house compound. 8. PW-2 Sri Mahendra Saikia is a resident of the same locality and is known to the accused and the deceased. He has deposed that on the date of the incident he received a phone call from one boy who had informed him that the accused had murdered his father and concealed the dead body in his house compound. This witness has also stated that the accused did not allow any person to enter into his house compound. He has deposed that on the date of the incident he received a phone call from one boy who had informed him that the accused had murdered his father and concealed the dead body in his house compound. This witness has also stated that the accused did not allow any person to enter into his house compound. PW-2 has also deposed that when he went to the house of the accused and questioned him, he had confessed of having murdered his father. According to the PW-2, the accused had confessed before him that he had committed murder of his father by “hoe/spade” and that he had kept the dead body concealed in the house compound, which the accused had shown to him. Accordingly, the Pw-2 had informed the Police. Thereafter, the Police arrived at the place and the accused was apprehended by the villagers. On the next day in the morning, the Executive Magistrate had held inquest over the dead body after it was exhumed from beneath the earth. 9. PW-3 Sri Bijit Gogoi is another resident of the same village and he has also deposed in similar lines by saying that when he proceeded to the house of the accused on the date of the incident, the accused did not allow him to enter into his house compound. 10. PW-4 Sri Tonkeswar Kurmi has stated that after being killed, the deceased was put beneath the earth. He, however, did not have any personal knowledge about the incident. 11. PW-6 Smt. Rameswari Nagbongshi is the step mother of the accused and in all probability, was one of the eye witnesses in this case. However, in her deposition before the court, she did not support the prosecution case, as a result of which, the witness was declared as hostile. During her cross examination by the prosecution, this witness has admitted that the Police had examined her and she had stated before the Police that "at the time of the incident, she was sleeping in her house; she heard shouts coming out of the house; thereafter, she came out of the house and witnessed the accused assaulting her husband with a spade in his hand, for which her husband sustained injury on his head and ultimately succumbed to his injuries". In her cross examination by the accused, the PW-6 had stated that her husband used to frequently assault her prior to the incident. 12. PW-7 Sri Birendra Bordoloi was the in-charge of Madhapur Police Station, who has received the ejahar on 16/03/2017. PW-7 has deposed that he had conducted the investigation and submitted charge-sheet. PW-7 had also proved the statement of PW-6 made before him to the effect that "at the time of the incident, she was sleeping at her house and she heard shouts coming out of the house; thereafter, she came out of her house and witnessed the accused assaulting her husband with a spade on his head, for which her husband sustained injury on his head and ultimately he succumbed to his injuries". PW-7 has also stated that the villagers had informed him that the accused had killed his father. The I.O. has, however, admitted that he did not send the accused for recording his confessional statement. 13. PW-8 Ms. Anita Nagbongshi is the younger sister of the accused. This witness has also stated that she saw the accused working in the house on the date of the incident when she returned at around 12 p.m. According to PW-8, the accused had told her that he has killed his father and buried him beneath the earth. Thereafter, she informed the matter to her Aunty and when her aunty came, she started crying. 14. PW-9 Sri Jiten Nagbongshi is the informant in this case and the brother of the accused. He has deposed that on the date of the incident, upon receiving telephonic information that his brother has killed his father and buried him, he rushed back home. On reaching home at about 7 p.m., he was shocked to know that the accused had killed his father. He was told that the dead body had been buried under the ground. When he asked his brother (accused) he told that he had committed a mistake. By that time police had arrived. 15. The post mortem examination on the dead body of the victim was conducted on 17/03/2017. On that date, Dr. Swaraj Phukan was the doctor on duty in the department of Forensic Medicine, Jorhat Medical College and Hospital. When he asked his brother (accused) he told that he had committed a mistake. By that time police had arrived. 15. The post mortem examination on the dead body of the victim was conducted on 17/03/2017. On that date, Dr. Swaraj Phukan was the doctor on duty in the department of Forensic Medicine, Jorhat Medical College and Hospital. According to the post mortem report (Ext.-4), the following injuries were found in the dead body :- “INJURIES: i. Laceration of size 2 cm x 1 cm is present over the right ear over the pinna. ii. Laceration of size 3 cm x 1 cm is present over the occipital region of scalp on right side, 6 cm medial to the right mastoid process x soft tissue. Depth & contusion of right tempero-parieto occipital region of scalp. Ante-mortem blood clots adherent to the wound margin which resist washing under tap water.” The doctor had opined that the cause of death was due to coma as a result of injuries sustained in the head as described and all the injuries were ante-mortem and homicidal in nature, caused by blunt force impact. 16. As noticed above, the homicidal death of the deceased is well established from the post-mortem report (Ext-3). From the evidence on record, it is also established that the incident took place in the house of the deceased. The deceased and the accused were both present at home on the day of the incident. From the testimony of PWs-1 and 2 it has come out that the dead body was buried in the compound and was later exhumed in presence of a Magistrate. PWs 1 and 2 have also deposed in one voice that on the day of the occurrence, when they went to the house of the accused, he had prevented them from entering the house compound on the ground that he was carrying out some work. It was around the same time that the dead body was buried by the accused in his house compound. 17. The I.O. had seized the "koor" (hoe) Material Ext-1 which was used by the accused to assault his father vide seizure list Ext-1. 18. PWs 2 and 8 have proved the extrajudicial confession made by the accused. In his statement recorded under section 313 of the Cr.P.C, the accused has also admitted to killing of his father. 19. 17. The I.O. had seized the "koor" (hoe) Material Ext-1 which was used by the accused to assault his father vide seizure list Ext-1. 18. PWs 2 and 8 have proved the extrajudicial confession made by the accused. In his statement recorded under section 313 of the Cr.P.C, the accused has also admitted to killing of his father. 19. From a careful analysis of the evidence adduced by the prosecution witnesses, we are left with no manner of doubt that on the date of the incident, it was none other than the accused/appellant who had assaulted his father (deceased) with blunt weapon causing grievous injury resulting into death of the deceased. After killing his father, the accused had also tried to conceal the dead body by burying the same in the compound of his house. 20. As an alternative argument Mr. De has submitted that the incident took place due to a quarrel between the father and son and, therefore, there was no intention to kill. As such, this case would be covered under Exception – 4 of Section 300 of the IPC, thereby, meriting lesser punishment to the appellant. 21. We, however, find that there is no evidence to suggest that any quarrel had broken out between the accused and the deceased immediately before the incident. Rather, it appears that the accused was annoyed with his deceased father for quite some time. In response to the question No. 11, the accused had also stated in his statement recorded under section 313 Cr.P.C that he had assaulted his father as he always created nuisance after consuming liquor and that he tried to sell the land over which he was constructing his house. Therefore, the motive to kill is also apparent. The accused had killed his father with a view to protect his interest in the immovable property of the family which his father wanted to sell. 22. It is also established from the evidence brought on record that after killing his father, the accused had tried to conceal the dead body by burying it. If the accused was at all repentant about the killing, then in that event, instead of concealing the dead body in secrecy, he would have informed other members of the family, which he did not do. If the accused was at all repentant about the killing, then in that event, instead of concealing the dead body in secrecy, he would have informed other members of the family, which he did not do. The above conduct of the accused clearly points at pre-meditation on his part and suggests that the assault made on his father, on the vital parts of the body, was not only in accordance with a well thought out plan but was also with the intent to kill. We are, therefore, unable to accept the alternative submission made by the learned amicus curiae to the effect that the accused in this case deserves a lesser punishment. 23. For the reasons stated herein before, we do not find any merit in the appeal. The appeal is, therefore, dismissed. 24. The conviction of the appellant awarded by the learned trial Court is hereby affirmed. 25. Before parting with the record, we would like to place on record our appreciation for the services rendered by Mr. R. De, learned Amicus Curiae and direct the Registry to make available to him, just remuneration, as per the notified rate. Send back the LCR. Having regard to the facts and circumstances of the case, we also direct the jurisdictional DLSA to take steps for payment of victim compensation under Section 357-A of the Cr.P.C. to the wife of the victim, if the same has not already been done.