High Court
Case Details
CRL.A(J) 2/2009 BEFORE HON’BLE MR JUSTICE B.P. KATAKEY HON’BLE MR JUSTICE M.R. PATHAK JUDGMENT & ORDER (Oral) Katakey, J. This appeal by the convict, who is in custody, is against the ju dgment and conviction dated 28th November, 2008 passed by the learned Sessions J udge, Nalbari in Sessions Case No.27/2008, convicting the appellant for the char ge framed under Section 302 IPC and sentencing him to undergo rigorous imprisonm ent for life and to pay a fine of Rs.5,000/- (Rupees Five Thousand), in default to undergo rigorous imprisonment for a period of 6(six) months.
Facts
[2] Criminal investigation was set in motion on lodging of an FIR (E xhibit-3) by Nishi Kanta Rai (PW-2), the father-in-law of the deceased, alleging that on 21st November, 2007 at about 5:00 AM, his son (accused) killed his wife Rita Rani Ray by inflicting Dao blows on her neck and after committing the crim e the accused attempted to commit suicide by consuming poisonous substance. The said FIR was registered as Ghagrapar Police Station Case No.66/2007, under Sect ion 302 IPC. The police during investigation seized the Dao and also recorded t he statements, under Section 161 Cr.P.C., of the persons acquainted with the fac ts of the case. The police also conducted the inquest and sent the dead body fo r post mortem examination. On completion of investigation, charge-sheet was fil ed on 31st December, 2007. The case being exclusively triable by the Court of s essions, it was committed to the Court of sessions on 28th March, 2008. The ch arge under Section 302 IPC was, thereafter, framed against the accused/ appellan t on 25th April, 2008, which when read over and explained to the accused/appella nt, he pleaded not guilty and claimed to be tried. Hence, the trial commenced. [3] The prosecution, in order to prove the case, has examined 9(nine ) witnesses, namely, Md. Nur Zamal, Secretary, VDP as PW-1; Sri Nishi Kanta Rai, the first information and the father of the accused, who has been declared as h ostile, as PW-2; Dr. (Mrs.) Alaka Das, who conducted the autopsy on the body of the deceased and submitted the post mortem report (Exhibit-4) as PW-3; Sri Suraj it Rai, a co-villager as PW-4; Sri Tanay Rai, another co-villager as PW-5, Sri J iban Rai, another co-villagers as PW-6; Sri Bimal Mitra, the brother-in-law of t he accused and brother of the deceased, who is 11 years old, as PW-7; Sri Nikhil Ch. Mitra, the father of the deceased as PW-8 and Sri Bhupen Bora, the Investi gating Officer as PW-9. During trial, the dao has also been exhibited as materi al Exhibit-1, apart from the seizure memo and also the post mortem report as Exh ibit-4. [4] The learned Sessions Judge, upon appreciation of the evidence ad duced and based on the circumstantial evidence, chain of which, according to the learned Sessions Judge, is complete pointing to the guilty of the accused only, convicted the accused/appellant under Section 302 IPC and sentenced him to rigo rous imprisonment for life and to pay the fine, as noticed above. Hence, the pr esent appeal. [5]
Legal Reasoning
That being the position, we are of the view that the learned Ses [18] Before parting, we place on record our appreciation to the servi ce rendered by Ms. Krishnamoni Phukan, who shall be entitled to the fee of Rs.5, 000/- (Rupees Five Thousand), to be paid by the State Government. [19] The appeal is, therefore, dismissed. No costs.
Arguments
We have heard Ms. K. Phukan, learned Amicus Curiae, who has been engaged by this Court, as the appeal has been filed from custody and the accuse d is not represented by any of the learned counsel. We have also heard Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. [6] Referring to the deposition of PW-7, namely, Bimal Mitra, who is a child witness, it has been submitted by the learned counsel for the appellant that it is not at all safe to pass the judgment of conviction on the testimony of the child witness, his evidence being not coherent. It has also been submitt ed that there being no witness to the occurrence, for the purpose of conviction of the accused, the chain of circumstances must be complete and it must point to wards the guilty of the accused only and no-one else and in the instant case, si nce the PW-7 has stated that he has seen throwing of the Dao only, the learned S essions Judge ought not to have convicted the accused/appellant under Section 30 2 IPC, that being the lone circumstance. The learned counsel, therefore, submit s that the conviction recorded by the learned Sessions Judge needs to be set asi de and the accused/appellant needs to be set at liberty. [7] Per contra, Mr. Mazumdar, learned Additional Public Prosecutor, placing reliance on the deposition of the witnesses examined by the prosecution including that of the child witness, namely, PW-7 Bimal Mitra, has submitted tha t from the evidence, the following circumstances appeared, namely, that the accu sed and the deceased stayed together on the previous night; that there is no oth er person in their room; that after hearing the cry of the deceased, PW-7 went o ut of his room and saw the deceased and the accused together by the side of the tube well; that he saw the deceased lying in a pool blood near the well and the accused holding a Dao and also saw the accused throwing away the Dao. It has, t herefore, been submitted that since the chain of circumstances is complete and p oints towards the guilt of the accused only, the learned Sessions Judge has righ tly convicted the accused under Section 302 IPC, which does not require any inte rference. The learned counsel referring to the statement under Section 313 Cr. P.C. has also submitted that in fact the accused has admitted his guilt and pray ed for mercy. [8] We have considered the submissions advanced by the learned couns el appearing for the parties and also perused the evidence adduced by the prosec ution in order to bring home the charge framed against the accused under Section 302 IPC. [9] PW-3, Dr. (Mrs.) Alaka Das, has proved the post mortem report (E xhibit-4), wherefrom it appears that the body of the 6th cervical vertebrae comp letely cut, membrane cut at the level of 6th cervical vertebrae and spinal Cord severed at the level of 6th cervical vertebrae. [10] It was also found that the injury over the back of the neck is 1 5 CM in length bone deep severing all the muscles of the back of the neck, body of 6th cervical vertebrae and carotid vessels on the left side, margins retracte d, margins sides and base strained with blood. All the injuries were found to be anti mortem and homicidal in nature. The Doctor has opined that the death is due to injuries to the vital organs, i.e. spinal cord and carotid vessels leadi ng to hemorrhage and death. [11] The defence has not challenged the injury found on the body of t he deceased. Hence, the death of the deceased caused by the injuries sustained is proved and has not been disputed. [12] herefore, is whether the appellant is the perpetrator to the crime. The question that requires determination, in the instant case, t [13] PW-7 is a child witness, who was 11 years old. This witness has been tested by the learned Judge before recording his deposition, so as to asce rtain as to whether he has the capability of answering the questions coherently and his answers are rational. The learned Judge having found that the child wit ness was capable of answering the questions put and his answers are rational and are capable of understanding the questions, proceeded to record his evidence on oath. As because PW-7 is a child witness, his testimony, therefore, cannot be brushed aside. [14] PW-7 in his deposition has stated that on the previous night, he alongwith his sister and brother-in-law came from their house and stayed in the brother-in-laws house, i.e. the house of the accused. He has also deposed tha t the accused and his wife stayed together on the previous night. In his deposi tion, this witness has also stated that on hearing the cry of his sister, he wen t out of his room and saw his sister lying in a pool blood near the well and als o saw the accused standing near her holding a blood stained Dao in his hand. He has also stated in his deposition that he has also seen the accused throwing aw ay the Dao and coming back to his house and saw the accused attempted to commit suicide by consuming poisonous substance. According to this witness, he immedia tely informed about the said incident to the first informant, namely, Nishi Kant Rai (PW-2), the father of the accused, who on getting the said information came running. PW-2, however, has been declared as hostile, as he did not support th e prosecution’s case about informing him by the PW-7. This witness in his evide nce has stated that he has seen his daughter-in-law with cut injuries on the nec k and lying in a pool of blood. [15] It appears from the suggestions put by the accused person to the witnesses examined by the prosecution that the accused set up the plea of in sa nctity, which, however, could not be substantiated either by adducing any eviden ce or by cross-examination of the prosecution’s witnesses. The accused during t he statement recorded under Section 131 Cr. P.C. has also begged for mercy. [16] e following circumstances have been proved by the prosecution:- (i) that the accused and the deceased stayed together on the previous night; From the said evidence on record, it, therefore, appears that th (ii) there was no other person present; (iii) PW-7 on hearing the cry of his sister went out of the house and saw the de ceased lying near the well in a pool of blood; (iv) PW-7 saw the accused standing near the deceased with blood stained Dao in h and; (v) PW-7 has also seen the accused throwing away the Dao. There is no evidence even to suggest the presence of any other p erson in the place of occurrence or stay together with the husband and wife on t he previous night. From the aforesaid circumstances it, therefore, appears that the chain of circumstances is complete and it leads to the guilty of the accuse d alone. [17] sions Judge has rightly convicted the appellant under Section 302 IPC.