High Court
Case Details
Crl.A. 194/2011 BEFORE THE HON’BLE MR. JUSTICE T. VAIPHEI THE HON’BLE MRS. (DR.) JUSTICE I. SHAH JUDGMENT & ORDER (CAV) (By I. Shah, J) The judgment and order dated 20.09.2011 passed by learned Addl. Sessions Judge, Kamrup, Guwahati in Sessions Case No. 146 (k) 2008 convicting th e appellant under section 302 IPC and sentencing him thereby to undergo rigorous imprisonment for life with fine of Rs. 1,000/- ( Rupees one thousand) has been challenged in this appeal. The appellant/accused was found guilty for committing murder of
Facts
2] his own brother, Binod Kalita, on 28.06.2007 at about 9AM. 3] The accused was residing with the deceased ie. Brother and wife of the deceased in the same house. The accused was a school teacher and deceased was appointed as Post Master of the village post office. The accused although w as a school teacher was actually working as post master, the deceased after his marriage requested the accused to allow him to work as post master as now he is a married man but the accused refused the proposal and did not allow him. In the morning of 28.06.2007, the accused told Smt. Maina Kalita(wife of the decease), to prepare meal as he has to go to school early. Accordingly, she prepared meal at about 08.30 AM. Her husband (deceased) told her that he would go to field wi th cows. Thereafter, the deceased went to field and after some time the accused left the house holding a dao in his hand. A little while, thereafter, Maina Kal ita(PW.1) heard hue and cry from the side of embankment which is situated in the western side of their house. She went there and saw her husband being assaulted by the accused-person. She also noticed some other boys there namely Maniram Ka lita, Rahila Medhi, Balen Talukdar and some other persons. When the accused saw her, he threatened her and thereafter, left the place holding a dao in his hand. She lodged the FIR, on the basis of her FIR Sualkuchi P.S. Case No. 40/2007 und During the investigation, the dao which was used in the commissi On completion of the investigation, Police submitted charge shee er section 302 IPC was registered. 4] on of offence was seized from the Paddy Field in presence of the witnesses. 5] t under section 302 IPC against the accused. 6] The accused pleaded not guilty to the charge framed against him under section 302 IPC and claimed to be tried. Altogether 13 (thirteen) witnesse s were examined by the prosecution in support of this case. Thus, the statement of the accused under section 313 Cr. P.C was recorded, wherein he denied the al legation leveled against him and pleaded that he is innocent. No defence evidenc e, however, was adduced. 7] On perusal of evidence on record, it appears that the occurrence was witnessed by PW. 1 (Maina Kalita), who is the widow of the deceased and PW. 7, namely, Balen Talukdar. 8] PW. 2 Rahilla Medhi while coming back from Sualkuchi saw Binod K alita(deceased) in injured condition and there was gathering of many people ther e. PW. 3 Moniram Kalita rushed to the place of occurrence hearing h 9] ue and cry and found Binod Kalita (deceased) in injured condition. He denied, th at, he stated before the Police that he saw the accused assaulting the deceased with a dao. He was not declared hostile by the prosecution although from the tre nd of his evidence in chief, it appears that leading questions were put to him a nd his attention was drawn to his previous statement recorded by the Police unde r section 161 Cr.P.C. However, he admitted that he saw the deceased on the emban kment with injuries on his body. PW. 4 Basanta Majumdar came to the place of occurrence as he wa 10] s told that the accused killed his brother Binod Kalita. He also saw Binod Kalit a in injured condition and noticed many injuries on his person. It was PW.3, who informed the Police over the phone. He further, stated that he heard that the a ccused committed the murder due to dispute relating to service between the accus ed and the deceased. The dao was seized from paddy field in his presence. PW. 5 Narayan Chandra Das rushed to the place of occurrence hear 11] ing hue and cry and found Binod kalita (deceased) lying on ground in a pool of b lood. He also saw wife of the deceased Maina Kalita. On being asked, Maina Kalit a told that the accused Madan Kalita cut her husband and fled away. 12] PW.6 Akan Das also deposed that in the same line and also stated that Maina Kalita told that the accused killed her husband. 13] The evidence of Nabin Kalita (PW.8) is hearsay, he heard that th e accused assaulted his brother Binod Kalita. He saw the Dead body of the deceas ed lying in the court yard of his residence. 14] PW.9 Suresh Kalita was president of Village defence Party at the relevant time. He heard from the villagers that the accused killed Binod Kalita out of their conflict regarding some service matter. He then, went to the house of the victim and saw the Dead body lying in the court yard. He also heard from the local people of the village that after committing the offence, the accused had thrown away the dao in a pond. He, therefore, instructed the boys of the vil lage to keep a look for the said weapon used in the offence. It is in his eviden ce that after 1 (one) week of the alleged occurrence, he was informed that the s aid dao have been recovered by some boys, who were taking bath in the pond. PW.9 then collected the dao and kept it hidden in the paddy field and informed the v illage headman about the recovery of the dao, who in turn informed the Police. O n arrival of Police, the dao was handed over to Police which was seized by exihi bit-7. 15] PW.10 Sri. Bhagaban Bhuyan is the scribe of the FIR. He wrote FI R as per the instruction of PW.1 Maina Kalita. He also witnessed the inquest on the Dead body of the deceased. 16] he Dead body of the deceased on 28.06.2007 and his findings are as follows:- (cid:28)1. An incised wound over the dorsam of Rt wrist measuring 10 X4 cm radiun and u lna and attached only by skin. 2. An incised wound over the lower 3rd of the rt arm cutting the humerous attach ed only by skin. 3. An incised wound over the Rt upper chest wall measuring 12X5 cm and partly cu tting the clavicle. 4. An incised wound over the Rt occipital region measuring 15 X3 cm cutting the bone and brain. 5. An incised wound over the Rt temporal region measuring 16 X 3 cm and cutting Dr. R. Saliha (PW.11) performed the post mortem examination on t bone. 6. An incised wound over the volt measuring 17 X 3 cm cutting bone and brain. 7. An incised wound over the left cheek measuring 9 X 4 cm. 8. An incised wound over the back of the Rt calf measuring 4 X 2 cm and muscle d eep. 9. An incised wound over the upper third of left arm measuring 21 X 6 cm cutting the humerus and attached only by soft tissues. 10. Sketch abrasion across the upper chest measuring 6 X 0’5 cm. Internal Injuries 1. age present. (cid:29) Membrane and brain are cut at places sub dural and sub arachnoid hemorrh 17] In the opinion of the Doctor, death was due to Coma, as a result of injuries to the head of the deceased. The injuries were ante-mortem caused b y heavy sharp cutting weapon and homicidal in nature. 18] The fact that the deceased sustained multiple injuries, the inju ries were ante-mortem and the death was due to Coma, as a result of the injuries are not in dispute. PW.1 Maina Kalita wife of the deceased deposed that the accused 19] who is the elder brother of the deceased was a school teacher. On the date of oc currence, in the morning the accused told her to prepare meal as he had to go to school early. Accordingly, she prepared the meal at about 08.30 AM. The accused asked her husband what he would do and in-reply her husband told him that he wo uld go to Paddy Field with his cows. Thereafter, her husband went to paddy field with cattles, after some time he saw the accused went out holding a dao in his hand and a little while thereafter, he heard hue and cry coming from the nearby embankment, which is situated in the western side of their house. She immediatel y rushed to the place of occurrence and saw the accused inflicting dao blows on her husband. When she saw him, he threatened her showing the dao and thereafter, he left the place holding the dao in his hand. She noticed many injuries on the body of her husband and her husband was lying in a pool of blood. She also stat ed that she saw Maniram Kalita, Rahila Medhi, Balen Talukdar and some other pers ons at the site. In cross examination, she stated that the distance from her hou se to embankment is about 200 mtrs. and it is situated in the backside of her ho use. She stated that it took 10-12 minutes to arrive at the place of occurrence from her house. She reiterated that though it took some time to reach the place of occurrence still she saw the occurrence with her own eyes. Balen Talukdar stated that on the day and time of occurr 20] ence he was gossiping with Moniram on the embankment, he saw the deceased Binod proceeding in the embankment with his cattles. He also noticed his brother Madan Kalita holding a dao in his hand. He saw the accused assaulting Binod Kalita(de ceased) from his back. He stated that seeing the occurrence he became nervous. H e, further, stated that at that time Dhiraj Mazumder was there and they all saw the occurrence. Seeing the incident when he started crying, wife of the deceased , Moina Kalita, rushed to the place of occurrence. In his cross examination, he stated that he saw the occurrence from a distance of 200 mtrs. Thus, PW. 7 has c orroborated the evidence of PW. 1 on all material particulars. PW.1 as discussed earlier came to the place of occurrence hearing and hue and cry. She saw her hu sband being assaulted by the accused. She also stated that Balen Talukdar along with others was present at the place of occurrence. However, the evidence of PW. 7, that the occurrence was witnessed by Moina Kalita and Dhiraj Mazumder has no PW.7
Legal Reasoning
On consideration of evidence, we find that certain facts are not in controversy. The fact that the accused and deceased were residing together i s not in dispute. The fact that the deceased left the house along with cattle fo llowed by the accused is not disputed. The place of occurrence, the time and the cause of death of the deceased are also not controverted. The evidence of PW.1 is that the accused refused to hand over the charge of post master, which her hu sband was insisting, has not been disputed. PW. 9 also stated that he heard from the villagers that the accused killed Binod Kalita out of their conflict regard ing some service matter. 26] It is submitted by the learned counsel for the appellant that it is in the evidence of PW. 1 & 7 that after assaulting the deceased, the accused fled away holding a dao in his hand. The dao was seized by the Police at the pl ace of occurrence. On meticulous scrutiny of evidence on record, we find that PW . 9 heard from the local people that after committing the crime, the accused had thrown the dao in a pond. He being the president of the village defence party, he instructed the village boys to keep a look for the said weapon. After one wee k, he was informed that the dao has been recovered from the pond by some boys wh ile they were taking bath in the pond. He collected the dao and informed the vil lage headman. Accordingly, the village headman informed the Police and Police s eized the dao from the paddy field. PW. 9 was not cross examined, on this point by the defence. Therefore, the evidence adduced by PW. 9 remain intact. The accu sed in his statement under section 313 Cr.P.C also did not deny the evidence add uced by the PW. 9 against him. 27] In the case of Kerala -vs- Bahuleyan (1986) 4 SCC 124, it was ob served that law does not require conclusive proof, only proof beyond reasonable doubt. 28] Here, in this case, PW. 1 has narrated the motive to commit the offence. PW. 1 & 7 clearly stated that it was the accused who gave multiple blow s on the deceased. Other witnesses corroborated their evidence to the extent tha t they heard that it was the accused who killed his brother. We find that the le arned counsel for the respondent has not been able to satisfy that evidence of e ye witness is unreliable or the assessment made by the learned Additional Sessio ns Judge was incorrect. On scrutinizing the evidence afresh, on our own, we are of the considered view that the conclusion arrived by the learned Addl. Sessions Judge is correct. Therefore, we upheld the judgment of sentence and conviction passed by the learned Addl. Sessions Judge, Kamrup, and dismisses this appeal. 29] Send back the LCRs along with copy of this order.
Arguments
t been corroborated by Moniram (PW. 3) and Dhiraj Mazumder (CW.1). 21] According to PW. 3, he came to place of occurrence after hearin g hue and cry and found Binod Kalita with injuries on his back. CW.1 Dhiraj Mazu mder stated that he do not know how the death of Binod Kalita occurred. In his c ross examination, CW.1 stated that he heard Binod was killed by his brother Mada n Kalita. It is submitted by the learned counsel for the appellant that PW 22] . 1 who has posed herself as eye witness cannot be believed to be eye witness si nce she arrived at the place of occurrence after 10-12 minutes of the incident. 23] It is submitted by the learned PP that PW.1 hearing the hue and cry came to place of occurrence immediately. The place of occurrence is in the backside of her house. The distance between the place of occurrence to her house is only 200 mtrs. Even, if it is accepted that she reached the place of occurre nce after 10-12 minutes of hearing hue and cry, it is quite possible while proce eding from her house to the place of occurrence, she witnessed the incident. It is not in her evidence that the place of occurrence was not visible from her hou se. That apart, deceased sustained as many as 11 (eleven) injuries on his body. The time of 10-12 minutes stated by PW. 1 to reach the place of occurrence from her house may not be exact duration of time to reach the place of occurrence. It took 10-12 minutes covering the distance of 200 mtrs. The learned Trial Court h as also observed that nobody will allow a person to cause him as many as injurie s as the attacker wants without any resistance and particularly when the injurie s were caused by sharp object. In such, circumstances deceased also might had tr ied to resist the accused to save himself from the attack, considerable time mig ht have taken to cause as many as 11 (eleven) injuries and then there is every p ossibility of PW.1 to reach at the place of occurrence and witness the incident. 24] So far as, discrepancy in the evidence of PW. 7 & 3 is concerned . PW.7 stated that he was gossiping with Dhiraj Mazumder (CW.1). He witnessed th e incident and raised hue and cry and he further stated that PW. 3 also witnesse d the occurrence. It is not in the evidence of PW. 7 that PW. 3 was on the emban kment with him. PW. 3 stated that he was at his residence and hearing hue and cr y, he came to the place of occurrence and found Binod Kalita with injuries. Simi larly, CW.1 although denied that he was on the embankment and saw the incident, stated that he heard that accused killed his brother. Thus, PW. 3 & CW.1 did not support evidence of PW.7 but they have corroborated the prosecution case that t he deceased Binod Kalita sustained multiple injuries and was lying on the embank ment. 25]