High Court
Case Details
Crl.A. 176/2009 BEFORE THE HON’BLE MRS JUSTICE ANIMA HAZARIKA THE HON’BLE MR JUSTICE LS JAMIR Heard Mr.SC Biswas, learned counsel for the appellant . Also heard Mr.BJ Dutta, learned Addl.P.P.Assam appearing for the State respondent. This criminal appeal is directed against the judgment and order dated 27 2. .05.2009 passed by the learned Sessions Judge, Sonitpur,Tezpur in Sessions Case No. 2/2005 whereby the accused was sentenced to suffer imprisonment for life and to pay a find of Rs.5,000/- and in default R.I.for three months u/s 302 IPC . 3. The case of the prosecution in brief, is that an FIR was lodged on 28.4. 2004 before the Officer-in-Charge, Sootea P.S.,Sonitpur, Tezpur by one Junu Bor a wherein it was alleged that at about 3-20 p.m. on 28.4.04 while her daughter Swarachita Borah was returning home from Nagsankar High School , the accused Man ash Dutta, son of Sri Amrit Dutta, resident of Meteragaon killed her on the Nat ional High Way No.52, near Nagsankar Temple road by inflicting dao blows on her. It was also mentioned in the FIR that the accused had been threatening the fam ily members of the informant from before but she could not file the Ejahar earli er as her husband had been away from home in connection with his service. On the basis of FIR dated 28.4.08, Sootea Police Station Case No. 48/0 4 u/s 302 IPC was registered. On completion of investigation, charge sheet was f iled against the accused u/s 302 IPC. As the offence u/s 302 IPC was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessio ns Judge, Sonitpur,Tezpur for trial. Charge u/s 302 was framed against the accus ed person Sri Manash Dutta to which he pleaded not guilty and claimed to be trie d. Prosecution examined as many as 24 witnesses. No evidence was adduced by the defence. The statement of the accused person was also recorded u/s 313 Cr.P.C. 4. position of the PWs. To appreciate the case in hand we find it necessary to examine the de 5. PW 1 is the senior Medical & Health Officer who conducted the post morte m examination on the dead body of the deceased, namely ,Smt.Sarasita Borah. The findings of the doctor is given herein below : (cid:28)EXTERNAL APPEARANCE: A healthy girl of average built. Rigor Mortis present. WOUNDS: 1. One sharp cut wound of 6 (cid:29)x2 (cid:29)x10 (cid:29) in size over the left side of head cu tting above downward occipital bone, left parietal bone and left frontal bone an d related brain matters. 2. (cid:29)x4 (cid:29)x10 (cid:29). 3. CRANIUM AND SPINAL CANAL: One sharp cut wound on the back of the neck placed transversely; size- 6 One sharp cut wound in between scapular region, size -10 (cid:29)x6 (cid:29)x4 (cid:29). Scalp, Skull injured by wound No.1 stated above.Cervical vertebra injur ied by wound No. 2 as stated above. Membrane conjested. Left parietal lobe, occipital lobe and left frontal lobe of brain are cut deep i nto the base of the brain by wound No.1 as stated above. Spinal cord intact. THORAX - Healthy ABDOMEN- Stomach contains gastric juice Small intestine contains semi digested food stuff. Large intestine contains digested food stuff The a bove injuries were ante-mortem in nature and their duration was between 18 to 36 hours. (cid:29) In the opinion of the doctor, the deceased died of shock and haemorrh age due to antemortem sharp cut wounds sustained by her. The cross-examination of the doctor was declined by the defence.
Legal Reasoning
PW 2 Smti.Junu Bora is the informant as well as the mother of the deceas 6. ed. In her deposition she stated that she was informed by some school students that her daughter Swarachita while coming back from her school had been killed by some one. She went to the place of occurrence and saw the dead body of her daughter lying on the road near Nagsankar Temple. She also noticed cut injurie s on the body of the deceased and at the time of her arrival , she was already d ead. Some of the school students thereafter informed her that her daughter ha d been killed by the accused Manash Dutta. Accordingly she submitted FIR at Soot ea Police Station. In cross-examination she stated that she did not see the alleged incide nt and at the time of the alleged incident her daughter was coming along with h er class mates. She also stated that she did not remember the name of the school students who told her that her daughter was killed by the accused Manash Dutta.
Legal Reasoning
7. PW 3 Sri Prabin Saikia has stated in examination-in-chief that on 28.4.0 4 when he was present at Sootea police station he saw the accused inside the pol ice lock up. The defence declined cross-examination of PW 3. 8. PW 4 Sri Rabi Mandal, in examination-in-chief stated that he is a black smith at Sootea Saraijania village. After the incident police questioned him as to whether he has manufactured the dao, which was used by the accused to kill th e deceased. He replied that he cannot give specific reply to the query as he did not remember each and every customer of his shop who purchased or gave order fo r making dao and other implements in his shop. He also stated that material Ext. 1 ’dao’ was not manufactured in his shop. He further stated that during investig ation his statement was recorded by the Magistrate u/s 164 Cr.P.C. The defence declined to examine P.W.4. PW 5 Sri Bhaskarjyoti Bora stated that he knows the accused as well as 9. the deceased. On 28.11.2004 after school was over, he alongwith his friend Sr i Pinku Borah were returning home on foot. After approaching Nagsankar Temple th ey saw the accused person cutting a girl near a drain and thereafter riding a b icycle towards Sootea. They saw the girl was Swarachita Borah of their school and he saw cut injuries and blood in her head , neck and waist. He also stated t hat his school teacher Baneswar Borah who was coming behind them, took them away asking them to stop crying. He also stated that the girl died on the spot and t hey left for home crying. In cross examination PW-5 stated that while the accused was cutting the girl no other person were present except them and Sri Baneswar Borah arrived fiv e minutes after the accused had left . He also stated that on that day the decea sed had come to school on bicycle and left for home on bicycle and denied the su ggestion that he did not state before the police that the deceased had receive d injuries in her head, neck and waist. 10. PW 6 Sri Pinku Bora in examination-in-chief stated that at 3 PM on 28.4. 04 when they were returning from school after crossing Nagsankar Temple they sa w the accused hacking a girl under a tree. At that time his friend Bhaskar wa s with him and his teacher Baneswar Borah was coming behind them.After hackin g the girl, the accused went away towards Sootea on a bicycle thereafter on goi ng nearby he found that the girl was their co-villager Swarasita. In cross-examination PW 6 stated that at that time he was studying in Cl ass VIII. He and Bhaskar were coming together and no other students were with hi m. Only they had witnessed the occurrence on that day. He also stated that he ha d not noticed who had accompanied the deceased back from school. 11. PW 7 Sri Baneswar Borah is a teacher of Nagsankar High School. On the da y of occurrence, after the school was over, he was returning home and while appr oaching the Nagsankar Temple, his student Pinku and Bhaskar came running and to ld him crying that the accused Manash Dutta had hacked their elder sister. He told that he had witnessed the deadbody and cut injury on the deceased. He retu rned from the place of occurrence and informed the matter to the Headmaster . H e alongwith other teachers and villagers came to the place of occurrence and hea rd that the accused had surrendered at the police station. PW 7 thereafter went to the police station alongwith with other people and saw the accused. He heard that the accused had loved the deceased and as she did not love him, he had kill ed her. In cross examination he stated that Pinku and Bhaskar had informed him about the incident and also stated that he did not see the incident. 12. PW 8 Sri Sankar Bhuyan, an employee of A.S.E.B. stated that at 3-45 on 2 8.4.04 he reached home from office. When he saw a gathering of people at the pla ce of occurrence near his house, he went there and found a school girl was lying dead with cut injuries. After some time the police arrived and examined the dea d body. In cross examination he stated that he did not see the incident and did not know about the incident. 13. PW 9 Sri Jiten Rajkhowa who is also a teacher in Nagsankar High School stated that on 28.4.04 after school was over, he was returning home on his scoo ter and before he reached the bridge he saw a boy hacking someone with a dao. As he looked while sitting on his scooter he saw a girl clad in white dress lyi ng dead under a tree at a depth of about 15 feet from the level of the road .He identified the accused present in the dock. He stated that as he was about to h alt the scooter the boy turned towards him ferociously taking a dao, whereupon h e went home speedily . In the evening he came to know that the girl who was hack ed by the accused was Swarachita Borah. The following day the police called him to the police station and when being asked about the occurrence, he replied tha t he was aware about the incident. In cross examination PW 9 stated that he got to know the boy by appearan ce but he does not know his name. He also stated that he did not identify the ac cused person in any other place except in the police station. He also denied the suggestion that he did not state before the police that when he slowed down to stop, the accused turned towards him in a ferocious mood taking a dao. 14. PW 10. Udaisankar Saikia stated that on the day of occurrence he was hol ding the charge of regional Student Union under AASU. Being a student leader he also went to Sootea PS alongwith public . The accused Mannash Dutta was detaine d on surrender in the police station . They demanded punishment of the guilty wh o caused the death of Swarachita Bora. On demand , the Officer-in-charge of Soot ea P.S. called him and other student leaders inside the police station and in hi s presence the accused Manash Dutta confessed his guilt by stating that he kille d Swarchita Borah and has deposited the offending dao by which he killed the dec eased. In cross examination he stated that he did not see the occurrence of ki lling. He also stated that after gherao of Sootea Police Station the accused person confessed his guilt. 15. PW 11 Sri Ratul Ranjan Saikia stated that on 28.4.04 at about 3-30 PM w hile he was coming from Sootea towards Nagsankar he found a gathering creating halla near a culvert on the High Way. He got down from his bicycle and approache d the gathering and came to know that the accused Manash Dutta killed Swarachit a Borah and her dead body was lying there. He further stated that on the way wh en he was coming to Sootea he saw accused Manas Dutta going towards Sootea keep ing a dao in his hand . In cross examination PW 11 stated that he did not see the actual occurr ence and when he approached the gathering he found Junu Bora, mother of the de ceased who was crying and and on her request he wrote ejahar. 16. PW 12 Sri Jagat Bora, stated that on 28.4.04 while he was sitting in hi s office at Sootea, he heard from some body that a boy killed a girl by cutting and the boy has gone in front of his office. He went to Sootea police Station to make entry about the incident and in the police station he found the accuse d Manash Dutta who was detained in the police lock up and he came to know that h e caused the death of the said girl. He also came know that after causing the d eath of the girl Manash Dutta surrendered before the police. Thereafter He went towards Nagshankar and found the dead body of the victim girl which was lying on the road side near a culvert on the high way. In cross-examination he stated that he did not see personally about cau sing the death by accused Manash Dutta and he found the accused being confined in the police lock up after the occurrence. 17. PW 13 Sri Simanta Gogoi stated that in the year 2004 while he was comin g to Nagshankar centre from his house he found a gathering on the road and found the dead body of a girl lying there. He was told by the people gathering there that accused Manash Dutta caused her death by cutting . In cross examination he stated that he has not seen the actual occurrenc e of cutting. 18. PW 14 Krishna Das has stated that he knew the accused Manash Dutta as w ell as the deceased who is his sister-in-law. On the day of occurrence he came t o know about the incident and later on he came to know that the accused person w ho killed the deceased surrendered in the police station. In cross examination he stated that he did not see the occurrence by him self and that he cannot recall from whom he came to know about the occurrence . 19. PW 15 Jagen Das , in examination -in-chief, stated that he knew the accu sed persons who is present in the dock. In the year 2004 while he was busy wo rking in the Nagsankar village and while he was going to his village, school s tudens who were returning back told him that the daughter of Krishna was murder ed by Manash Dutta. He also saw Manash Dutta going away on his bicycle . He furt her stated that nearby the Nagsankar Temple by the side of the drain , the daug hter of Krishna was lying on the ground in injured condition. He saw three cut injuries on the dead body . He informed the villagers and went to the police st ation where he saw that Manash Dutta was in the police station. In cross examination he stated that he did not state before the I.O. tha t the accused was going away by riding his bicycle . 20. PW 16 Purna Kataki stated that about 3 years ago he went to Sootea pol ice station and at that time the accused person handed over a ’dao’ in the polic e station . He did not hear what he stated before the police. In cross examination he stated that he did not know the accused before the occurrence and he saw the accused in the police station on that day. He als o denied the suggestion that the accused did not hand over the dao in the police station . 21. PW 17 Polash Bora was declared hostile by the prosecution. 22. PW 18 Shri Lila Hazarika stated that while he was at home about one and half years back he heard that Manash Dutta killed Sarasita Bora near the Nagsa nkar High School and she was a student of that school. Upon hearing, he came out to see what happened and he arrived at the place of occurrence. He saw the dead body of Sarasita Bora nearby the road alongwith her bicycle having injuries and the dead body was in a pool of blood. In cross examination he stated that he did not know who killed the decea sed. He also stated that he stated before the I.O. that at about 3-20 PM he hear d that one school girl was killed by somebody and when he went there he saw th at the girl was Swarachita Borah daughter of Krishna Borah. 23. PW 19 Sri Ananta Bhuyan stated that he knew the accused as well as the d eceased as they were from Metera village. The occurrence took place on 28.4.04 n ear Nagsankar High School under a tree. The occurrence took place after the sch ool was over and at that time he was at home. He came to know that a girl was ki lled and when he came to the place of occurrence and saw the dead body of Swarac hita Borah lying near the road side alongwith her bicycle. He saw injuries nea r the head and neck. Blood was oozing out from the said injuries. The villagers disclosed the incident and told him that Manash Dutta dealt dao blow on the dece ased Sarasita Bora and as a result of which she died . In cross examination he stated that he did not see the occurrence by him self and came to know about the incident from the people. PW 20 Jatin Bora is the Circle Officer of Naduar Revenue Circle who co 24. nducted the inquest of the dead body on the deceased. He identified Ext.5 the in quest report prepared by him and Ext.5(6) as his signature. In his cross-examination he deposed that there is a standing circular th at if any police officer request to conduct inquest, he is to go there and to ho ld the inquest over the dead body. 25. PW 21 Sri Badan Bora stated that on 29.4.04 he was serving in Sootea P.S . and on that day the then O.C.,Sootea seized one white coloured blood stained s chool uniform near the place of occurrence and he has put his signature in the s eizure list. In cross examination he stated that he put signature in the seizure list as Ext.7(1) in the police station itself. 26. PW 22 Supratim Borah stated that on 28.4.04 he was coming from Sootea to Nagsankar and on reaching the place of occurrence he saw the dead body of Sa rachita Bora lying in injured condition and blood oozing out from her body and t he accused ran away from the place of occurrence. In cross examination he stated that the occurrence took place at the sid e of the national high way and that he put his signature in the seizure list a t police station. He further stated that he saw the dao in the police station . 27. PW 23 Sri Ritu Porna Mahanta stated that on 28.4.04 he went to Sootea po lice station upon hearing that a girl was killed by some one . The accused wa s in the police lock up. In cross examination he stated that he saw the dao on the table of the police station and he did not know who brought the dao in the police station . After three days of the incident police called him to the police station and asked him to put his signature in the seizure list. 28. PW 24 S.I Promod Ch. Hazarika, I.O of the case, stated that on 28..4.04 he was Officer in Charge in Sootea Police Station. On that day at about 3-40 PM the accused Manash Dutta surrendered in the police station alongwith blood stai ned dao and he told that he inflicted dao blow on Sarasita Bora in front of Na gsankar temple on the National High Way 52 and he sustained some injuries when people chased him.He made a GD entry and seized the blood stained dao. He kept the accused in the police station and in the meantime the informant, mother of t he deceased, came and filed Ejahar in the police station. He registered a case a nd informed his superior officer about the incident and he himself took up th e charge of investigation. He proceeded to the place of occurrence and seized on e black coloured cloth bag containing school books and khatas, ladies wrist wat ch, lady’s bicycle, a pair of hawai chandal. The dead body was kept in the poli ce station for the night and the next day he sent it to the Kanaklata Civil Hosp ital alongwith dead body challan where post mortem was conducted. He also seiz ed one white coloured school uniform , i.e. chaddar with blue coloured ribbon on the side of the chaddar having blood mark and one dao stroke was there. He se nt the dao to the FSL for chemical examination and after completion of investiga tion and after collecting reports he submitted charge sheet against the accused under Section 302 IPC. In cross examination he stated that the distance of the place of occurre nce from the Sootea P.S. is 3 k.M. and he reached the place of occurrence at 4 PM. When he reached the place of occurrence there are many people assembled. He denied the suggestion that the accused did not surrender in the police station and handed over the dao . He also stated that he did not send blood of the dec eased for chemical examination by FSL. He stated that PW 5 did not state before him that he saw the accused was cutting a girl. 29. f the deceased. The accused was also examined u/s 313 Cr.P.C. where he denied killing o 30. After consideration of the deposition made by the PW s and on perusal of the records, it is seen that the eye witness to the crime are PW’s 5,6 and 9 w ho saw the accused hacking the deceased with dao. PW 10 and 16 are the eye witness who had seen the accused handing over t 31. he dao in the police station. Further PW 10 in his cross examination as well as in examination in chief has stated that the accused appellant confessed to his guilt. 32 It is in the evidence of PW 10,PW 12 and PW 24 that the accused Manash Dutta had surrendered before the police station after committing the crime and it is in the evidence of PW 11 that he saw the accused going towards Sootea wit h the dao in his hand.Further PWs 12 and 23 had deposed that they saw the accuse d in the lock up at Sootea Police Station . 33. the medical officer who conducted the post mortem report. It is important to note that the defence has declined to cross examine 34. The defence has not been able to dislodge the evidence of the prosecutio n witnesses more importantly the evidence of PW 5,6 and 9 who were eye witnesses to the incident and that of PW 10 PW 12 and PW 24 who had deposed that the accu sed surrendered before the police after committing crime. 35.
Decision
From the evidence given by the PW 5,6,9 it is seen that there is strong corroboration in their evidence and we see no reason to disbelieve the trustw orthiness in their statement. Apart from the ocular evidence, the circumstantia l evidence are also very strong pointing towards the guilt of the accused . The defence has miserably failed to show any iota of doubt in the evidence of the P Ws and accordingly we have no hesitation in coming to the finding that the accus ed Manash Dutta had killed the deceased by hacking her with a dao. 36. In the circumstances, we see no reason to interfere with the judgment passed by the learned Sessions Judge, Sonitpur, Tezpur. Accordingly this appeal is dismissed. 37. Send down the records.