High Court
Case Details
Crl.A. 168/2010 BEFORE HON’BLE MR. JUSTICE K. SREEDHAR RAO HON’BLE MR. JUSTICE P. K. SAIKIA This appeal is directed against the judgment dated 09.08.2010 passed by the lear ned Sessions Judge at Golaghat in Sessions Case No. 28/2007 convicting the accus ed/appellant, Jiten Bora, hereinafter referred as the accused person, of offence under Section 302 IPC and sentencing him to imprisonment for life and to pay a fine of Rs. 5,000/-, in default to undergo Simple Imprisonment for another 3(thr ee) months for the offence aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgment, the acc 2. used/ appellant has preferred this appeal citing several infirmities in the judg ment, under challenged. 3. We have heard Mr. T J Mahanta, learned counsel appearing for the appella nt and also heard Mr. K A Mazumdar, learned Additional Public Prosecutor, Assam. The facts which have emerged during trial and which are necessary for di 4. sposal of the present appeal are that on 05.11.2006, at about 4 PM, while one Sm ti Dulumoni Boruah (PW2) alongwith one Mohila Borah (the deceased), was returnin g home after paying visit to one Tarun Phukan of Bilgaon, accused Jiten Bora ass aulted Mohila Borah, wife of one Jiten Bora, with a dao on the road at Sadhubast i inflicting several cut wounds on her person which occasioned her death at the place of occurrence itself. 5. An FIR to the effect on being lodged with Officer-in-Charge of Barpathar Police Station same day at about 11.45 PM, police registered a case vide Barpat har P.S. Case No. 101/2006 under Section 302 IPC and ordered one Shri Atul Barua h, SI of police, to investigate the case. Shri Atul Baruah, SI of police, being so entrusted with the investigation, visited the place of occurrence, conducted inquest on the dead body and then sent it to the hospital for postmortem examina tion. 6. As the investigation proceeded, the I/O also arrested the accused person , examined the witnesses, well acquainted with the facts and circumstances of th e case and did other needful and on the conclusion of investigation, he submitte d Charge-Sheet under Section 302 IPC against the accused person and forwarded hi m to the Court to stand his trial. The Magistrate before whom the Charge-Sheet w as so laid, committed the case to the Court of Sessions, Golaghat since the offe nce under Section 302 IPC is exclusively triable by the Court of Sessions. 7. On the receipt of the case on commitment and on hearing the parties, lea rned Sessions Judge, Golaghat framed charge under Section 302 IPC against the ac cused person and charge, so framed, on being, read over and explained to the acc used person, he pleaded not guilty and claimed to be tried. During trial, the pr osecution had examined as many as 11 witnesses, including the informant, Medical Officer and the Investigating Officer.
Legal Reasoning
30. Coming to the allegation that there is inconsistency between the evidenc e of PW1 and PW7 (doctor), I have found such allegation is without any substance . It is true that the doctor has found as many as 11 cut injuries on the body o f deceased whereas PW1 stated that the accused subjected the deceased to three s uccessive dao blows. But then, the evidence reveals that incident in question o ccurred all on a sudden and with enormous amount of brutality. 31. In such a scenario, one cannot expect to the narrator of the crime to gi ve exact number of blows which the accused person had inflicted on the hapless w oman on the afternoon aforementioned. Being so, in our considered opinion the a forementioned inconsistency between the evidence of Doctor and PW1 no way makes any dent in the prosecution case under consideration. 32. In so far last allegation is concerned, we have found that evidence of P W1 coupled with evidence of PW7 and PW11 very convincingly establishes that on t he afternoon of 05.11.2006, the accused dealt of series of dao blows on the vict im which occasioned her instantaneous death at the place of occurrence itself. In the face of above evidence, the evidence of DW1 and DW2 no way serves to show that accused was not the perpetrator of crime in question. 33. Even if one believes the versions of the DW1 and DW2 that on the fateful day, they met PW1 on the road and heard her uttering (cid:28)Katile Katile (cid:29), such evid ence no way advances the case of the defence. Rather such evidence fortifies mor e and more the claim of the prosecution that the incident in question did occur at the place of occurrence on the afternoon of 05.11.2006 and the author of crim e in question was none else but the accused person. 34. In view of the above, I am of the opinion that on the materials on recor d, learned Trial Court has rightly concluded that prosecution has successfully p roved the charge under Section 302 IPC and as such, the learned Trial Court has rightly convicted and punished the accused under the aforesaid provision of law. Therefore, judgment impugned in this appeal invites no interference from this Court of appeal. 35. Consequently this appeal is dismissed since it is found devoid of merit. 36. Return the LCR.
Arguments
8. The statement of the accused person under Section 313 Cr.P.C. was also r ecorded Accused plea was of total denial. On the conclusion of trial and on hea ring the arguments, advanced by the learned counsel for the parties, the learned Trial Court held the accused guilty of offence under Section 302 IPC, convicted him there-under and sentenced him to punishment as aforesaid. It is that judgm ent, which has been assailed in the present appeal alleging several infirmities therein. 9. Opening up argument, Mr. T J Mahanta, learned counsel for the appellant Shri Jiten Bora has contended that the judgment, under challenge, is unsustainab le in law for reasons more than one. According to him, the incident in question occurred on the 5th day of November, 2006 at about 4 PM. In this part of the c ountry, it gets quite dark around 4 PM in the month of November. Therefore, it becomes impossible for anyone to see any incident after the nightfall. 10. Inspite of above being the situation, PW1, Smti Dulumoni Borauh claimes to have seen the accused assaulting the deceased at the place of occurrence on 0 5.11.2006 at about 4 PM. Since it is not possible for the PW1 to see the incide nt in question after the nightfall, her claim that she had witnessed the inciden t fully and completely is downright falsehood and as such, no reliance, whatsoev er, should be placed on her evidence. If the evidence of PW1 is discarded, ther e remains no evidence to support the prosecution case. It has also been contended that PW1 claims that the accused subjected th 11. e deceased to three successive dao blows. However, the medical evidence did not support such a contention from the PW1 since the Medical Officer, had found as m any as 11 incised wounds on the body of the deceased. This only shows that the evidence rendered by PW1 is totally unsafe for reliance. 12. The appellant also submits that the accused had examined 2 (two) witness es in support of his case and they gave an accurate account of the incident unde r consideration. According to DWs, on the fateful day, in the evening, th ey met PW1 on the road and at that time, she was uttering the word (cid:28)Katile Katil e (cid:29). But she did not name who cut whom. This only shows that her claim that accu sed had cut and killed the deceased at the place of occurrence on the evening in question is without any basis. 13. the law. It has also been pointed out that according to DW1 Biswajit Gogoi, when the alleged incident occurred, it was quit dark. Such an evidence of DW1 finds support of DW2 as well. Since there is evidence on record to show that inciden t occurred after the dusk when it was dark all around, the contention that PW1 w itnessed the incident is found to be wholly unreliable. It is a settled positio n of law that the defence witness to deserve same treatment as of prosecution wi tnesses. 14. However, in the case under consideration, learned Trial Court ignored eviden ce of DWs without assigning any reason whatsoever which is not permissible under In the teeth of above revelations, learned Trial Court was not j ustified in convicting the accused of offence under Section 302 IPC. He, theref ore, submits this Court to acquit the accused person of offence under Section 30 2 IPC on setting aside the judgment under challenge. 15. Controverting such a contention, advanced by the learned counsel for the accused/appellant, learned Additional Public Prosecutor, Assam submits that jud gment, rendered by the Trial Court is based on fact on records which was also re ndered having regard to the laws which hold the field in question. According to the learned Additional Public Prosecutor, Assam, such a judgment rendered by the Trial Court does not deserve any interfere from this Court of appeal and as suc h, he urges this Court to dismiss the appeal on affirming the judgment under cha llenge. We have considered the rival submissions having regard to the evidence o 16. n record as well as the judgment impugned. Before we proceed further, we find i t necessary to have a look at the evidence of witnesses and evidence of Doctor i s taken up first for consideration. He is Dr. Satyajit Duwara and was examined a s PW7. According to him, on 06.11.2006 he was posted at K. K. Civil Hospital, Go laghat. 17. Mohila Bora and found as follows: (cid:28)Injuries: Incised wound on left forearm just below elbow joint and cutting across 1) the bonds and the limb is joint on one side only by skin and sub-cutenous tissue s. Clotted blood present. 2) A horizontally placed incised wound of 3’’ X 1’’ X 1’’ in size over left On that day, he conducted the postmortem examination on the body of one deltoid muscles. Clotted blood present. 3) An incised wound over right forearm just above wrist joint and cutting a cross the bond. The limb is joint on one side only by the skin and sub-cutenous tissues. Blood clot present. 4) Incised wound over right axilla, 4’’ X 1’’ X 1’’ in size. Clotted blood present. Incised longitudional wound over right forearm, dossal surface, about 4’ 5) ’ X 1’’ X 1’’ in size. Clotted blood present. 6) vely, over right shoulder, clotted blood present. 7) Two incised wounds, 4’’ X 1’’ X 1’’ and 2’’ X 1’’ X 1’’ in size respecti Incised wound over left upper abdomen, extending from midline of front t Two incised wounds over back of neck, over 4th and 5th cervical vertebra Incised wound over scapula, 7’’ X 1’’ X 1’’ in size, clotted blood prese o the backside, protusion of intestine and spleen, which is ruptured. Thick blo od present inside the abdominal cavity. 8) nt on the left side. 9) es, 4’’ X 1’’ X 1’’ and 3’’ X 1’’ X 1’’ in size. Clotted blood present. 10) 11) 12) In his opinion, the cause of death is due to haemorrhage and shock as a result o f the multiple injury sustained by the deceased. According to PW7, the injury no. 7 and 9 are fatal and these injuries are suffic ient to cause death of a person in the ordinary course of nature. Ext. 4 is the post mortem report and Ext. 4 (1) is his signature.’’ 18. All the injuries are ante mortem in nature. All the injuries are caused by heavy and sharp instrument. All the injuries are of recent origin of less than 36 hours duration. The evidence of Doctor clearly reveals that deceased died as a result of shock and hemorrhage, occasioned by multiple incised wounds found inflicted on her body. In other words, the wounds are ante-mortem and death was homicidal in nature. 19. So situated, let us see who caused the death of person aforesaid. In t hat connection, I find it necessary to have a look into the evidence of PW1, Dul umoni Borah who claims to be the eye witness of the incident under consideration . 20. According to her, on 04.11.2006 she alongwith the deceased went to the house of her brother-in-law situated at Baligaon. After staying overnight, at the ho use of her brother-in-law, they returned home on foot, the next day around noon. As they reached Sadhubasti, they met accused Jiten Borah. As they met accused Jiten Borah, he took out a Kopidao (a kind of machete) from his bag and then st arted planting blows on the aforesaid luckless lady. Having subjected Mohila Bora to a series of dao blows, the accused lef 21. t the place of occurrence riding a bicycle in which he came to such place on the aforesaid afternoon. While going away from such place, the accused kept on utte ring that he was going to Police Station. Though she called Mohila Borah, she did not get any response from her. Being perplexed at the turn of events, she s tarted raising hue and cry. 22. On hearing hue and cry, raised by her, the people nearby came to such pl ace and took PW1 to her house. In that connection, she made a statement before the Court during the course of investigation which she proved as Ext. 1. In her cross-examination, she reiterated that accused Jiten Borah came to the place of occurrence riding a bicycle and that the moment he crossed them, the accused st arted planting dao blows on Mohila Borah who was her sister-in-law. 23. PW2, Jiten Borah is the husband of the deceased, Mohila Borah. Accordi ng to him, on 04.11.2006, his wife and PW1 went to Baligaon to spend a night in the house of his brother-in-law. On the next day, they returned home. They rea ched the place of occurrence at Sadhubasti around 4 PM. On the way home at Sadh ubasti, they met accused Jiten Borah who on seeing them took out a machete from his bag and then started assaulting the deceased with such weapon which occasion ed her death at the place of occurrence itself instantaneously. Thereafter, the incident was reported to him (PW2). In that connection, he lodged the ejahar wh ich he proved as Ext. 2. 24. PW3, Sri Upen Saikia, PW4, Naba Barua, PW5 Pranjal Bora, PW8 Mantu Gogoi and PW10 Bhalaram Bora are the witnesses who heard about the incident in questi on. PW9 is Md. Monwar Ali, Additional Chief Judicial Magistrate, Goalpara. According to him, on 13.11.2006, while he was working as SDJM, Dhansiri, Sarupat har, he recorded the statement of witness Dulumoni Borah as per the provision of 164 Cr.P.C. He proved her statement as Ext. 1. 25. PW11 Atul Baruah is the SI of Police and Investigating Officer of Barpat har P.S. Case No. 101/2006 under Section 302 IPC. According to him, on 05.11.20 06, he was posted at Barpathar Police Station. On that day, at around 4.30 PM, they got information from V.D.P. Secretary, Soratoli village that one Jiten Bora h hacked and killed one Mohila Bora at Sadhubasti. On receipt of the same, a Ge neral Diary Entry was made vide GD Entry No. 99/2006 dated 05.11.2006. 26. Some time thereafter, accused Jiten Bora also came to the Police Station with a dao in his hand and told him that he had killed a woman with a dao. He, thereafter, took the accused into the custody, detained him in lockup, seized t he dao in his hand and proceeded to the place of occurrence. On arriving at the place of occurrence, he held inquest on the dead body. He also prepared a ske tch map on the place of occurrence, did other needful and on the completion of i nvestigation, he submitted charge-sheet under Section 302 IPC against the accuse d person. Above being on the evidence on record, let us see how far such evidence 27. make out the allegation against the accused person. The evidence of PW1 make s it more than clear that on fateful day about 4.00 PM at Sadhubasti, the accuse d Jiten Bora subjected Mohila Bora to barrage of assault by a (cid:28)Kopidao (cid:29) for whic h the deceased sustained various wounds on her person and such wounds occasioned her instantaneous death. 28. The claim of PW1 that deceased died having sustained various cut wounds on her body finds unfettered support from the evidence of Doctor who conducted a utopsy on the dead body since the doctor has stated in no uncertain terms that t he deceased died a homicidal death and such death was occasioned by wounds cause d by sharp weapon. The evidence of PW11 as well as the averments made in Ext.1 lend more and more support to above claims of PW1 and PW7. 29. The defence, however, contends that prosecution case should be believed since the incident in question occurred when it was totally dark, since medical evidence did not support the testimony of PW1 and since the learned Trial Court ignored the evidence of DW’s without assailing any reason whatsoever. However, o n considering the evidence records, I have found that though the incident occurr ed at about 4 PM on 05.11.2006, it cannot be said that there was totally darknes s and the time under consideration. Rather all materials, available, reveal that there was sufficient light when the incident aforementioned took place.