High Court · 2012

The FIR was lodged on 29.6.2004 by the son of the deceased and after inv 3. estigation the charge sheet was submitted against both the appellants for the of fence of murder with common intention and they have been convicted accordingly. Being aggrieved with the conviction, the appellants have preferred this appeal f rom jail.

4. Heard Smti. R.D. Mazumdar, learned counsel for the appellants and the S tate was represented by Mr. D. Das, learned Addl. PP, Assam. We have also gone t hrough the impugned judgment and the evidence on record.

5. After conclusion of the prosecution evidence, the statements of the accu sed persons under Section 313 of the Code of Criminal Procedure were recorded; w herein the accused persons took the plea of total denial and no evidence in defe nce was tendered.

6. In order to establish the offence, the prosecution examined altogether 7 witnesses. PW 1 is the son of the deceased who also lodged the FIR, PW 4 is the wife of the deceased, PWs 3 and 5 are the independent witnesses from the locali ty, PW 2 is the autopsy Doctor, PW 6 is the Police Officer who had done inquest on the dead body in the hospital and the PW 7 is the Investigating Officer. As noted earlier, the wife of the deceased (PW 4) was the first person t 7. o reach near the deceased. She has given a clear deposition as to how her husban d was called out by the appellants from their residence at about 7.00 PM telling something and soon thereafter she heard some voice from outside. Hearing the vo ice of her husband, PW 4 went out and saw her husband lying in injured conditi on and on being enquired she named the appellants as the assailants. She has als o claimed that both the appellants were also seen near her husband at the place of occurrence. In the cross-examination, no penetrating suggestion was given to PW 4 that the murder was committed by any person other than the appellants. On the other hand, a suggestion was given that the accused persons have been implic ated in the offence as they had dispute over a land.

8. Identical version has been given by PW 1, who is the son of the decease d. This witness has also deposed that his father was taken away from their home by the appellants. After some time, he heard someone groaning outside and the wi tness went out and found that his father was lying on the ground in injured cond ition. The witness is also claiming that the appellants were holding dao and axe in their hands and when he was approaching near his father the appellants also attempted to assault him. Hearing their outcries the nearby people came and then the appellants left the scene. Thereafter, the injured was taken home and after arranging a vehicle he was shifted to the hospital wherein he died in the next morning.

9. In the cross-examination, no suggestion was given that the witness was n ot present at home and that he did not see the incident at all. Rather, the witn ess has affirmed in the cross-examination that when his father was brought home in injured condition he told them that the appellants had assaulted him. Witness has further clarified that his father was assaulted in front of the house of th e accused persons. Except minor omissions in the statement before the police, th e deposition of PW 1 has corroborated the story narrated by PW 4 in toto. PW 3 has deposed that hearing about the incident, he went to the house o 10. f the deceased. This witness has further stated that till then the deceased was alive and he had noticed injury on the head. PW 3 took active part in shifting the injured to the police station and 11. then to the hospital and thereafter he was reported by PW 1 that the deceased w as assaulted by the appellants. Strangely, PW 3 was not given any suggestion in the cross-examination that the appellants have been falsely implicated in the c ase due to land dispute. Cross-examination is absolutely fishy. In this way, the testimony of PW 3 can also be taken as corroborative evidence. PW 5 is another independent witness and hearing the murder of Jahan Majhi he went to the place o f occurrence and saw that the police had already come for investigation and they had arrested the accused persons.

12. In view of the aforesaid evidence, the prosecution has been able to esta blish that both the appellants were seen together along with the deceased. PWs 1 and 4 have consistently deposed that they had seen the appellants taking away t heir father/husband and within a short time, the deceased was assaulted with sha rp weapons. No plea was taken during cross-examination of the witness that any o ther person was involved in the assault. Contrary to that the accused persons ha ve admitted that there was land dispute with the deceased and this establishes t he motive for the crime.

13. The above apart, the FIR was lodged promptly naming both the appellants as assailants. It is the settled position of law that the victim is less likely to implicate an innocent person shielding the real culprit. In the case at hand , the accused are none else but first degree relative of the victim and as such it is hard to believe that they would be implicated falsely. From the evidence of the doctor it is apparent that as many as three inc 14. ised wounds were inflicted upon the deceased and all the injuries were antemorte m in nature and in the opinion of the doctor the death of Jahan Majhi was homic idal in nature. It may also be mentioned herein that as per the prosecution wit nesses the deceased was assaulted with sharp weapon like dao, which was seized by the Investigating Officer vide Exbt. 2. Keeping in mind the nature of the w eapon and the number of assaults inflicted upon vital organs of the deceased, li ke forehead, temple and shoulder it can be held that the appellants had definite intention of causing death of the victim. Autopsy doctor was not at all cross-e xamined to obtain his opinion that the deceased could not have been in a positio n to disclose the name of the appellants to his wife and son. In this way, the t estimony of PWs 1 and 4 gets reinforced that the deceased was capable to speak a nd disclose the name of the appellants for inflicting the fatal injuries.

15. In view of above, we do not find any merit in this appeal. Consequently, both the appeals stand dismissed. The sentences awarded by the learned Sessions Judge are also hereby affirmed.

16. m the Legal Services Authority. The learned Amicus Curiae shall be entitled to one day’s hearing fee fro

17. In view of the provisions prescribed by Section 357-A Cr.P.C., the victi m or his/her dependants are entitled to get compensation for rehabilitation in a ppropriate cases. Therefore, for the sake of brevity and in the light of our dis cussions, made in the case of Jalilur Rahman -vs- State of Assam, reported in 20 12(1) GLT 238, with regard the victim compensation, as provided by Section 357-A Cr.P.C., we make the following directions: (i) As an interim measure, an amount of Rs.50,000/- shall be deposited by th e State Government with the District Legal Services Authority of Dibrugarh Distr ict within a period of two months from this date. The District Legal Services Au thority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependant(s), who suffered loss and injury as a result of deat h of the deceased and if such dependent(s) or legal representative(s) need any r ehabilitation. Upon such enquiry, if it is found that the dependent(s), if any, need re (ii) habilitation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. It i s made clear that if the District Legal Services Authority, after due enquiry, a rrive at the findings that there is no dependent(s) or that the dependent(s) of the deceased/victim does not require any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs.50,000/- without delay, in favour of the State Government.