High Court · 2012

02. ed-appellant and Mr. KA Mazumdar, learned Addl. Public Prosecutor Assam. We have heard Mr. DK Chomal, learned Amicus Curiae for the accus

03. The prosecution was set in motion by the FIR dated 03.02.2004, lodged by one Gajendra Nayak with the Officer-in-Charge of Rangapara Police Out Post, alleging that on 02.02.2004 at about 7/7.30 p.m. the deceased, Grabare Nay ak, who was a priest had gone to the house of the accused-appellant, whereafter, the latter killed him by chopping of his head with a dao and an axe. Rangapara P.S. Case No. 16/04, under section 302 IPC was registered, and on the culmination of the investigation that followed, a charge sheet was laid against the accused-appellant. The learned trial Court charged him with the offence of m urder under section 302 IPC, to which he pleaded (cid:28)not guilty (cid:29) and claimed to be tried. The prosecution resultantly examined 8 witness, including the Investigati ng Officer and the Doctor, who had conducted the autopsy on the dead body. The s tatement of the accused-appellant under section 313 Cr.P.C. was recorded. He hav ing declined to adduce any evidence in defence, the verdict, as above, was prono unced. The learned Amicus Curiae has emphatically argued that there bei 04. ng no eye-witness to the incident, the learned trial Court erred in law and on f acts in relying on certain stray circumstances to convict the accused-appellant and, therefore, the impugned judgment and order is unsustainable and is liable t o be interfered with. According to Mr. Chomal, the evidence of PW Nos. 1 & 2 is wholly untrustworthy and, therefore, their version of extra-judicial confession made by the accused-appellant before them admitting his complicity in the crime ought not to have been acted upon. Moreover, the statements of these witnesses u nder section 164 Cr.P.C. having been recorded more than two months of the lodgin g of the FIR, the learned trial Court ought to have discarded them as unworthy o f any credit. The learned Amicus Curiae by drawing our attention to the relevant portions of the evidence of the testimony of PW Nos. 1, 2 & 8 (the Investigatin g Officer) has maintained that in view of apparent and irreconcilable contradict ions and inconsistencies on material particulars, the prosecution case is liable to be rejected in limine. Contending that no explanation is forthcoming for not recording the statement of the accused-appellant, Mr. Chomal has urged that the re being no semblance of proof of any blood stain on the floor on which the dead body with the head severed therefrom had been recovered, it is apparent that th e accused-appellant was not the perpetrator of the offence. In absence of any mo tive assigned to him, having regard to the state of the evidence on record, the accused-appellant is entitled to honourably acquitted, he urged.

05. The learned Addl. Public Prosecutor, Assam, in reply, has argued that the evidence of PW 1, Md. Jafar Khan, PW 2, Sri Lalit Gogoi and PW 8, Sri Jibendra Brahma read in conjunction proved the charge against the accused-appell ant beyond all reasonable doubt. As the circumstances noticed and acted upon by the learned trial Court unmistakably point towards the guilt of the accused-appe llant, having regard to the medical evidence as well any possible hypothesis of his innocence is ruled out and, therefore, his conviction and sentence as record ed in the impugned judgment and order does not merit any interference.

06. nabove, it would be essential to notice the evidence in brief. To appropriately appreciate the rival submissions outlined herei

07. PW 1, Md. Jafar Khan, who at the relevant time was the VDP Secre tary of the concerned village, stated on oath that the accused-appellant, one da y had come to the house of village Headman, Lalit Gogoi and reported that he had killed one person and accordingly he should be handed over to the police. The w itness stated that on being so informed, Sri Lalit Gogoi brought the accused-app ellant to his residence, who reiterated the same version before him. According t o the witness, the police was informed who was led by the accused-appellant to t he place of occurrence, whereafter, he (accused-appellant) himself opened the lo ck of the main door of his residence and on entering the house the party noticed one dead body lying on the floor. The witness stated that the severed head was lying at a little distance away from the remaining part of the dead body, howeve r, both in the same room of the house. The witness stated about the seizure of o ne blood stained axe and a curved dao from inside the same room along with a bic ycle and other items. He identified the bicycle to be one used by the deceased t o visit his house and that of Lalit Gogoi. He proved the seizure list, Ext. 1 & 2. He also proved his statement made before the concerned Magistrate under secti on 164 Cr.P.C. as Ext. 3. In cross-examination, suggestions were made on behalf of the accused-appellant d enying that he had made a statement before the witness or the police that the de ceased was killed by him.

08. The evidence of PW 2, Sri Lalit Gogoi, Gaonburah of the village is exactly identical to the above narration by the PW 1. He not only proved the seizure list Ext. 1 & 2, but also identified the seized axe and dao as Material Ext. 1 & 2 in Court. He proved his statement under section 164 Cr.P.C vide Ext. 4. He denied the suggestion that the accused-appellant had not reported to him a bout his involvement in the killing of the deceased and also that he did not vis it his (accused-appellant) residence on being led by him along with the police. A significant suggestion on behalf of the accused-appellant denied by the PW 2, is extracted hereinbelow: - (cid:28)It is not fact that the accused-appellant simply informed us about the fact tha t one dead body had been found by him lying inside his residence. (cid:29)

09. PW 3, Sri Gajendra Nayak, is the son of the deceased, who in his deposition stated of having come to Rangapara Police Station on receiving the i nformation about the murder of his father by the accused-appellant. He owned the FIR lodged by him narrating the incident.

10. PW 4, Sri Manuel Sona, Line Chowkidar of Ambari Tea Estate prove d the seizure list Ext. 1 and also identified the seized axe and dao as Material Ext. 1 & 2. This witness stated further to have accompanied the police along wi th the accused-appellant to the latter’s residence and seen a dead body inside a room. He stated that the police had seized the axe and the dao from inside the room in which the dead body was found lying.

11. PW 5, Sri Bhomra Bhuyor claimed to have accompanied the police a nd the accused-appellant along with others to his (accused-appellant) house on b eing led by the accused-appellant. This witness also stated to have seen one dea d body lying inside the one room of the said house. He also stated about the sei zure of one axe and dao from near the dead body, which he identified as Material Exts. 1 & 2. PW 6, Dr. Gopendra Mohan Das stated to have found the following

12. injuries on the dead body in course of the post mortem examination: - (cid:28)2. Wounds 1. Head is approximated to the remaining dead body and it is found that both par ts are of the same person. Three sharp cut injuries are seen over remaining lowe r part of the neck at different levels which amputated the head from the body.

2. Multiple skull bone fractures are seen due to sharp cut injuries over right s ide of head. Right cerebrum, membrane are lacerated, full of old blood clots.

3. Body is extremely pale due to heavy blood loss. Head is flooded with blood cl ots. (cid:29) According to this witness, the death was due to shock and haemorrhage sustained by the deceased as a result of sharp cut injuries amputating the head from the b ody with head injury fracture intra-cranial haemorrhage.

13. PW 7, Rimi Bharali, is the Judicial Magistrate, who had recorded the statement of PW 1 & 2, which she proved as Ext. 3 in Court.

14. PW 8, Sri Jibendra Brahma, the Investigating Officer in course o f his evidence stated that having received the information about the incident an d being entrusted with the charge of investigation thereof, he visited the place of occurrence along with his staff. He also went to the house of the VDP Secret ary where he met the accused-appellant, who led the party to one garden quarter comprising of two rooms. According to this witness, when they opened the door of the house/quarter and arranged for light, they noticed one dead body without it s head lying on the floor. They also found near the dead body one axe and one da o, which were seized vide Exts. 1 & 2. The witness stated that on being queried about the head of the body the accused-appellant stated that he had kept in a bu ndle and produced the same from the next room, the same being tied with one piec e of (cid:28)army colour cloth (cid:29). The witness stated that thereafter the inquest was con ducted and the two portions of the dead body were forwarded to the post mortem e xamination. In course of his cross-examination under section 313 Cr.P.C., the accused-appell ant denied to have admitted before the PW 1 & 2 to have killed the deceased. His version was that at the time of the occurrence he was not at home and the door of the house was tied up with a string. He explained that in the evening on his return thereto, he having seen the dead body of the priest lying there, he infor med PW 1 & 2, whereafter, the police came and seized it. According to him, he wa s unaware as to who had killed the deceased. He asserted that he had been falsel y implicated in the offence. On a conjoint consideration of the evidence of the prosecution w 15. itnesses, more particularly that of PW 1 & 2, we notice a string of coherence an d consistency implicating the accused-appellant in the offence. Both these witne sses have corroborated each other to the effect that the accused-appellant had, at first instance, visited the house of village Headman, Lalit Gogoi and disclos ed to him that he had killed one person who was a priest. The identity of the de ceased is not in doubt. As the FIR would disclose, he was a priest and as mentio ned therein on the date of the incident he had gone to the house of the accused- appellant to perform some religious rituals. The visit of the accused-appellant in the house of Lalit Gogoi and Md. Jafar Khan, PW 2 & 1 respectively, in succes sion immediately, thereafter and his (accused-appellant) version of having kille d the deceased followed by the recovery of the dead body in two parts in his (ac cused-appellant) house in presence of the police, in our view, unmistakably poin t to his culpability. That the evidence of the PW 1, Sri Lalit Gogoi & PW 2, Md. Jafar Khan and PW 8, the Investigating Officer also to the effect that the accu sed appellant had led the police to his house, whereupon, on being shown by him, the dead body of the deceased in two parts had been recovered, also cannot be l ightly brushed aside. The whole exercise constitute a process leading to discove ry of the dead body by the police at the instance of the accused-appellant. It i s, in this context that his extra-judicial confession before the PW 1 & 2 as the assailant of the deceased assumes decisive significance. Though, noticeably, PW 1 & 2 have testified that on reaching the house of the accused-appellant, he ha d unlocked the door thereof and the severed head was found in the same room, PW 8, the IO, on the other hand, stated that ’they’ had opened the lock of the door and that only the torso was found in one room and the amputated head was brough t by the accused-appellant from the adjoining room tied up in a cloth. Though, the learned Amicus Curiae has laboured to discard the prosecution case o n the basis of this contradiction, in the face of overwhelming evidence on recor d, establishing, in our view, the identity of the accused-appellant as the kille r, we do not feel persuaded to lend our concurrence to this plea. True it is tha t there is no eye-witness in the instant case. The evidence of the prosecution w itnesses, as narrated hereinabove, the above notwithstanding, coupled with the a dmission of the accused-appellant about the existence of the dead body in two pa rts in his house leaves no manner of doubt that he is the perpetrator of the off ence resulting in the death of the deceased. PW 6, Dr. Gopendra Mohan Das, as th e above extract would reveal, in no uncertain terms, has opined that the amputat ed head belong to the body that was found severed therefrom and bore incised wou nds on the neck, skull and head. The axe and the dao seized from the vicinity of the dead body also from the same room of the house of the accused-appellant and identified by the prosecution witnesses are both sharp cutting weapons capable of inflicting the injuries found on the dead body. This is more so, in view of t he medical opinion that the injuries on the neck and the head were sharp cut inj uries.

16. Mr. Chomal in course of the arguments has sought to consolidate the defence taken by the accused-appellant in course of his statement under sect ion 313 Cr.P.C. by contending that as he used to live alone in the house and the door was not locked it is not unlikely that the offence had been committed else where and the dead body in two parts had been planted in his house, so as to fal sely implicate him in the offence. This stand for the first time, we notice, had been taken by the accused-appellant in his statement under section 313 Cr.P.C. and no endeavour has been made on his behalf at the trial. This omission on the part of the defence coupled with the evidence of the prosecution witnesses to th e contrary i.e. the door of the house of the accused-appellant at the relevant t ime was under lock and key and that he had opened the lock to facilitate the ent ry of the police led party to discover the dead body, impels us to conclude that this plea is only an after thought taken in desperation to somehow extricate hi m from the charge.

17. We notice with approval the circumstances recorded by the trial Court in the impugned judgment and order that the same unimpeachably demonstrate the culpability of the accused-appellant proving beyond all doubt that he had b een the author of the assaults resulting in multiple cut injuries found on the d ead body and to which he succumbed to meet his ultimate end.

18. On a consideration of the totality of the circumstances availabl e from the records, we are, thus, of the unhesitant opinion that the accused-app ellant is guilty of the offence of murder and that he has been rightly convicted under section 302 of the IPC. We see no extenuating or mitigating circumstances to interfere with the sentence as well. The appeal thus fails and is dismissed. We part by recording our appreciation for Mr. DK Chomal for his 19. role as the Amicus Curiae in the instant appeal and direct payment of his profes sional fee, which we quantify at Rs. 5000/- to be made by the State Government f orthwith.