High Court · 2012

We have heard Ms. NS Thakuria, learned counsel for the appellant as also Mr. Z Kamar, learned Public Prosecutor, Assam, appearing for the state.

6. ke to discuss the core of the evidence. To appreciate the submissions made on behalf of the parties, we would li

7. PW1, Dr Kanak Chandra Das, who performed post-mortem on the dead body of Jaykanta Kalita, found the following injuries on the person of the deceased: (cid:28)1. One cut injury present on right side of the neck, transverse size 25 cm. long & 4 cm. deep. Another cut injury present on left side of the neck transver se size 18 cm. long & 5 cm. deep - both the injuries merge one another in the mi dline. The third cut injury present further cervical vertebrae, where upper part of the neck & head separated from the rest of the body. The skin, muscles, vess els, trachea, esophagus, fourth cervical vertebrae & spinal cord were cut transv ersely. II. One cut injury present on front of the chest middle part, size 2 0 cm. x 4 cm. x sternum deep. III. One cut injury present on left middle finger, dorsal surface & d istal phalanx, size 2 cm. x 1 cm. x muscle deep(defence wound). IV. One cut injury present on left palm in between middle & ring fin ger size 3 cm. x 1 cm. x muscle deep.(defence wound). V. One cut injury present on left side of the face & upper part of the neck extending from just below the tip of the mastoid to chin size 19 cm. x 3 cm. x muscle deep. N.B. (1) The colour complexion & anatomy of alignment of upper part o f the neck & head correspond with rest of the body. (II) Margins of the injuries were clear cut & neck defined. (III) Clotted blood was found adherent to the wound margins whic h were resistant to washing with water. (IV) Wearing garment including wrist watch were handed over t o escorting constable for necessary action. Other organs are healthy. (cid:29) In the opinion of the medical officer, death was instantaneous as a resu lt of cut injuries sustained on the neck and all the injuries were ante mortem a nd were caused by a sharp-cutting heavy weapon and were homicidal in nature.

8. PW2, Shri Khagen Kalita, deposed that on the date of occurrence, when he was preparing for thrashing paddy in the field, he saw the victim proceeding to wards his house through the meadow. At that time accused was also thrashing padd y in the field. At that stage, on being asked by his brother-in-law Gobinda Kal ita (PW.3), who was also there in the paddy field, shouted to him to run away. P W.2 turned back and saw accused Subodh Kalita, chopping off the head of Joykanta with a dao and later running away towards his house with the said dao in his ha nds. Thereafter, the witness fell semi-conscious and regained his senses only af ter half an hour.

9. PW3, Shri Gobinda Kalita, deposed that on the date of occurrence around 12.30 PM, on one Thursday, when he was coming home after collecting firewood fro m the bank of the Brahmaputra river, he saw the accused Subodh chopping off the head of Jaykanta and fleeing away towards his house carrying with him the severe d-head and the dao. PW.3 affirmed to that he had yelled to his brother-in-law ( WP.2) to run away from the trouble. Thereafter, the witness left the spot and a fter passing a considerable distance, he fell semi-conscious, but regained his s enses at around 2 O’clock, on that day. In cross, the witness deposed that he had not seen any altercation takin g place between the accused and deceased. He had seen the dao, measuring 1 ‰ fee t long, in the hand of accused Subodh.

10. PW4, Shri Anil Kalita, deposed that after hearing news that at around 12 -12.30 PM on 6.1.05, Subodh Kalita had chopped off the head of Joykanta and carr ied the head to police station, he rushed to the spot and saw the beheaded body of Joykanta lying there and thereafter lodged the ejahar.

11. PW5, Shri Bhupen Kalita, deposed that at around 12.30 PM on 6.1.2005 h e was harvesting paddy. The accused was also, harvesting paddy at Barchapari, a place 30-35 feet away from the place of occurrence. P.W.5 noticed that Joykan ta Kalita was coming along the road and when he came close to the spot, where ac cused Subodh was thrashing paddy, Joykanta was given a dao blow by accused Subo dh and as a result he fell down, and when another dao blow was given by the acc used, his head was severed. According to this witness, the accused after choppi ng off Joykanta, went towards his house with the chopped of head of Joykanta in his hand. In cross, the witness deposed that his house is about 1 ‰ km away from S ubodh’s, as also the spot of occurrence. PW6, Shri Haren Kalita, deposed that on the date of occurence around 12- 12. 12.30 PM at Barchapori pathar(field), he was thrashing paddy. The accused was al so in his forecourt, PW.6 saw Jaykanta Kalita(deceased) walking through the mead ow coming closer to the spot where accused Subodh had been thrashing paddy . Su ddenly, Joykanta was given dao blow by accused Subodh and as a result he fell d own and when another blow was given, the head of Joykanta got chopped off. There after, the witness saw accused Subodh running towards his house with the severed head of Joykanta in his hand.

13. PW7, Shri Jiten Kalita, deposed that at around 12.30 PM on 6.1.2005, whe n he was 1 ‰ km away from the spot, on hearing a commotion taking place in the v illage, he rushed to the place of occurrence and found the headless body of Jayk anta Kalita, lying there and on being asked, he was told by villagers that Subod h Kalita had chopped off the head of Jaykanta Kalita.

14. PW8, Shri Amit Kalita, deposed that on 6.1.2005 at around 1 PM, when he was at his professional place in Chandrapur, he heard that Subodh Kalita had sur rendered before police station after chopping off the head of Jaykanta and rushe d to the spot and found the headless body of Jaykanta lying there.

15. PW9, Shri Biren Kalita, deposed that anytime around 12.30-1 PM on the da te of occurenc , after hearing news that a man was chopped off, he rushed to the spot and on way forth he saw accused Subodh Kalita carrying with him a dao in o ne hand and a severed-head in the other .P.W.9 also noticed the headless body o f Joykanta lying there and on being asked he was told by villagers that Subodh h ad chopped off Joykanta. PW10, Shri Madan Kalita, deposed that at around 12.30 PM on 6.1.2005, af 16. ter hearing commotion, he came out of his home and heard that Subodh had cut Joy kanta. Immediately thereafter, he rushed to police station and found accused Sub odh there, with a bag containing a severed-head in one hand and a dao in the oth er. On reaching the place of occurrence, he also found the headless body of Jay akanta. In cross, the witness deposed that he had heard about the incident from Dinesh Kalita, Niru Kalita and others.

17. PW11, Shri Basanti Das, deposed that at around 12.30 PM on 6.1.2005 (Thu rsday) on being informed by his daughter that Subodh had cut Jayakanta, he came out of his house and rushed to the place of occurrence and on reaching there he found the headless body of Jaykanta Kalita.

18. PW12, Shri Dambarudhar Mohan, the President of the Gaon Panchayat, depos ed that around 1-1.30 PM on 6.1.2005, when he was at BDO’ office, he heard that a man of Tantimara village after cutting off a man’s head came to police statio n with the severed-head. Immediately thereafter, the witness rushed to the polic e station and found the beheaded body lying there. In cross, the witness deposed that he could not see the man committing t he murder.

20. PW14, Sri Krishna Baruah, the Sr. Block Development Officer, deposed tha t he performed inquest on the dead body of Jaykanta Kalita in presence of villag ers. According to the witness, the dead body was wrapped up with a pink opaque p olythene sheet in an orphaned bag.

21. PW15, Shri Deben Chandra Kalita, deposed that the incident took place at around 12.30 PM on 6.1.2005, when he was in his house. When PW.15 cause to the place of occurrence he was told that accused Subodh had chopped off the head of Joykanta. After getting this information from villagers, P.W.15 found the headle ss body of Joykanta Kalita in the place of occurrence. In cross, the witness deposed that he came to know about the incident at around 1 PM and that his residence is anything around 800-meter away from the p lace of occurrence. PW16, Md. Hatem Ali Ahmed, who is the Officer-in-Charge of Pragjyotishpu 22. r police station, deposed that, he was informed over phone by a subordinate offi cer that one Subodh Kalita of Tantimara village, after chopping off the head of a man, appeared in police station along the severed-head in his hand. As PW.16 was at the Guwahati Police Reserve in connection with a congregation, however, as per the direction of his superiors, along with the Deputy Superintendent of P olice, Chandmari and two CRPF personnel, he visited the place of occurrence, per formed inquest on the dead body, arrested the accused, seized the blood-stained dao (the weapon of offence) from the possession of the accused, seized a gunny b ag, in which the severed-head of the deceased had been kept by the accused , dre w a sketch, recorded statements of the witnesses, sent the dead body to Guwahati Medical College Hospital, for a post-mortem examination. PW17, Sri Prasanna Kr Kalita, who examined the blood stains of the decea 23. sed Jaykanta as well as the blood stains contained in the weapon of offence, opi ned that blood stains, which were examined by him, are of human blood stains of Blood Group-B.

24. PW18 Md MH Borbhuyan, Judicial Magistrate 1st Class, Guwahati, who recor ded confessional statement of the accused, deposed that the accused gave confess ional statement of his own volition and without coercion from any quarters.

25. From the discussion of the evidence, it is found that PW2, PW3, PW4 and PW5, who are the witness to the incident and whose evidence was corroborated by PW4 and PW7 to PW16, who, though did not see the occurrence, in unison, stated t hat they had witnessed accused Subodh chopping off the head of Joykanta and surr endering before police station with the severed-head in one hand and the dao in the other hand. PW9, PW10, PW14 and PW16 stated that they had seen accused with a severed-head in one hand and a dao in the other hand present at Pragjyotishpur police station.

26. From the confessional statement of the accused, it would appear that he confessed to have chopped off Joykanta and thereafter surrendered before police with the severed-head of Joykanta in one hand and the dao (the weapon of offence ) in the other hand.

27. Learned counsel for the appellant, apart from pointing out few minor con tradictions in the evidence of the prosecution witnesses also submitted that the accused had no intention to cause bodily harm to the victim. Learned counsel a lso submitted that the accused did not trespass into the house of the victim, ra ther the venue of the offence was the paddy filed of the accused and he assaulte d the victim only when the victim visited and suddenly attacked him with a ’dao’ . Learned counsel further pointed out that there was no motive or intention for the commission of the offence alleged against the accused. Learned counsel dra wing the attention of the Court to the recording of the statement of the accused under the provision of Section 313 CrPC, has submitted that the learned Session s Judge failed to put relevant questions regarding the land dispute between the accused and the victim.

28. From the above submission of the learned counsel for the appellant, it t ranspires that the motive behind the occurrence as it transpires may be the subs isting land dispute between the parties.

29. Learned counsel appearing for the appellant further submitted that the l earned Sessions Judge failed to appreciate the fact that there was deep and sudd en provocation to the accused from the side of the victim for the commission of the offence alleged. However, though submitted by the learned counsel for the ap pellant, such provocation to the accused by the victim has not been prima facie established in the present case. Upon careful consideration entire gamut of the facts and also looking in 30. to the severity of the assault inflicted by the accused upon the victim, it clea rly transpires that the accused caused the injuries upon the innocent victim wit h severity and brutality. Therefore, though submitted by the learned counsel fo r the appellant, there is no question of reconsidering the severity of offence c ommitted by the accused upon the innocent victim.

31. Therefore, from the overwhelming evidence adduced by prosecution witness es, coupled with the true and trustworthy confessional statement of the accused as well as the statement of the accused recorded under Section 313 CrPC, admitt ing the crime, it can be safely held that it was the accused Subodh Kalita, who brutally killed Joykanta Kalita (deceased) by chopping off the head with a (cid:28)dao (cid:29) .

32. In view of above, we do not find any sufficient ground to interfere with the findings arrived at by the learned Addl. Sessions Judge, (FTC-IV), Kamrup. Accordingly, this appeal filed by the accused-appellant from jail, stands dismi ssed.

33. Send down the LCR forthwith.