Judgment · High Court · 2012

We have heard Mr. N.J. Das, learned counsel appearing for the appellants and Mr. D. Das, learned Addl. P.P., appearing for the State respondent.

#5. The prosecution case , in brief, is that, on 29.03.2000 at about 4 p.m., the appellants, along with two others (Sanjoy Rai and Nirmal Rai), being armed with lathi and dao, entered the premises of Satyen Rai ( herein after called the deceased ), and picked up a quarrel with the deceased. The said persons i.e. th e appellants and two others assaulted the deceased, causing injuries on his pers on, despite resistance given by the PW Nos. 1 and 2. The deceased was taken to h ospital for medical treatment, but he succumbed to the injuries, sustained by h im, in the same night. Accordingly, Sri Sanjib Rai, son of the deceased, as info rmant, lodged the FIR (Ext.1) with the police. On receipt of the said FIR police registered a case and launched investigation into the matter,

#6. During investigation , police visited Tangla Civil Hospital, where the dead body of the deceased was lying, visited the place of occurrence, arrested t he accused persons, examined the witnesses , seized a bamboo lathi, alleged to b e used by the accused persons, vide ext. No. 2, sent the dead body for post mort em examination, arrested Sanjoy Rai and Nirmal Rai. Accused Haridas Sen and Makh an Rai absconded and as such they could not be arrested. At the close of the inv estigation police submitted charge-sheet.

#7. In order to prove their case, prosecution examined, as many as, 6 witnes ses including the medical officer (PW-6), who performed the post mortem examinat ion and the investigating police officer (PW-5).

#8. At the close of the examination of the prosecution witnesses, the accuse d persons were examined u/s. 313 Cr.P.C. They denied the allegations, brought ag ainst them. The defence examined 3 witnesses as DWs 1,2 and 3.

#9. Considering the evidence, on record, the learned Sessions Judge came to the findings that the convicted persons , namely, Sanjoy Rai, Nirmal Rai, Makhan Rai and Haridas Sen (both appellants before this Court), in furtherance of thei r common intention, caused death of the deceased by assaulting him.

#10. amely, Makhan Rai and Haridas Sen have come up with this appeal. Aggrieved by the said conviction and sentence, the present appellants, n

#11. Mr. N.J. Das, learned counsel, appearing for the appellants, referring t o the evidence on record, has submitted that, except the evidence given by PW N os.-1 and 2, who were the son and the wife respectively of the deceased, there i s no other substantive evidence in support of the prosecution version i.e. again st the appellants. It is also submitted that both PWs 1 and 2, being close relat ives of the deceased, were interested witnesses and as such their evidence cann ot be relied upon to base the conviction, without corroboration from independent evidence. The learned defence counsel, taking us through the defence evidence h as also submitted that if the evidence given by the said defence witnesses (DW Nos. 1,2 and 3) are accepted then the prosecution version, that the appellants were involved with the alleged occurrence, cannot be believed. In view of the ab ove, the learned defence counsel has submitted that the prosecution failed to es tablish the case against the appellants, beyond all reasonable doubt, and as suc h the appellants are entitled to be acquitted.

#12. Resisting the said arguments, advanced by the learned defence counsel, M r. D. Das, learned Addl. P.P. has submitted that considering the facts and circu mstances of the case as well as the time of occurrence PWs 1 and 2, who were the members of the same family, were most reliable and natural witnesses and as s uch their evidence cannot be rejected only on the ground that they were close re latives of the deceased. It is also submitted that, from the materials on record , it can be found that, at the time of occurrence, the deceased and PWs-1 and 2 were in their house and the occurrence took place in their presence. Therefore, it is submitted that the evidence, given by the said two eye witnesses, is trust worthy and reliable. It is also submitted that sufficient corroboration can be d rawn from the medical evidence, rendered by PW 6, in favour of the evidence give n by PWs 1 and 2. The learned Addl. P.P. has also pointed out that PW 1 clearly stated that, after assaulting his father, the appellants had dragged the decease d to the courtyard of Makhan Rai i.e. the father of Sri Nirmal Rai. It is submit ted that the said version of PW 1 is corroborated by the investigating officer ( PW 5), who found the dead body of the deceased in front of the house of Sri Nirm al Rai, who is the son of Sri Makhan Rai. In view of the above, the learned Addl . P.P. has submitted that the prosecution has been able to establish, beyond all reasonable doubt, that the appellants have assaulted the deceased causing his d eath and as such the trial Judge committed no error by convicting and sentencing the appellants u/s. 302/34 IPC.

#13. In order to appreciate the counter arguments, put forward by the learned counsel appearing for both the parties and to examine the correctness the impug ned judgment and order , we feel it necessary to, briefly, scan the evidence on record. From the evidence adduced by the prosecution as well as the defence it i 14. s found that the dead body of the deceased was found lying in the premises of M akhan Rai, who was the father of Nirmal Rai. According to PW-1, the deceased, af ter being assaulted in his house, was dragged to the house of Nirmal Rai and acc ording to DW-2, also the deceased was found, in injured condition, by the side o f the road and he was taken to the house of Makhan Rai. There is no dispute abou t the time and date of occurrence, therefore, it has been established that the d eceased died on the date of occurrence i.e. on 29.03.2000 at about 4 p.m.

#15. The medical officer (PW-6), who performed the autopsy on 30.03.2000 i.e. on the next date, found the following injuries in respect of the dead body of t he deceased : (cid:28)2. Cut mark in the left leg 3’x2’x1’ below the knee joint.

#3. Cut mark in the right arm 2’x1/2 (cid:29)x1/2 (cid:29)

#4. Damage of the left eye by the sharp instrument. 5. Cut mark in the right temporal region 4 (cid:29)x1 (cid:29)x1/2 (cid:29) damaging skin, muscles bone and brain.

#6. Cut mark in the left temporal regfion 3 (cid:29)x1 (cid:29)x1/2 (cid:29) damaging skin, muscles bone and brain.

#7. 8. Cut mark in the frontal region 2 (cid:29)x1 (cid:29)x1/2 (cid:29) Lacerated wound of 1 1/2 (cid:29)x1/4 (cid:29) in the back.

#16. The said medical officer opined that the deceased died due to shock and haemorrhage as a result of injuries sustained by him. He has exhibited the post mortem report as Ext. 4 and his signature, thereon, as Ext.4(1). From the said m edical evidence, it is found that the deceased sustained as many as 5 (five) cut injuries, one lacerated injury, his left eye was also damaged by sharp instrume nt.

#17. The said multiple injuries which, were anti-mortem in nature, suggest us e of blunt as well as sharp cutting instruments. From the above discussed eviden ce it is clear that the deceased died on 29.03.2000 i.e the date of occurrence d ue to the injuries aforesaid. The nature and number of injuries , sustained by t he deceased, indicates involvement of many persons and their intention to cause death of the victim (deceased).

#18. Now, the question is who had caused the fatal injuries aforesaid. The pr osecution version is that the appellants, who had boundary dispute with the dece ased, being armed with dao and lathi entered the premises of the deceased and as saulted him in presence of PW-1 and 2 causing the said fatal injuries. Sri Rajib Rai, son of the deceased, deposing as PW 1, stated that, at the time of occurre nce, his mother PW-2 and the deceased were at their house and the appellans, bei ng armed with dao and lathi, had assaulted the deceased. He, further, stated tha t the accused persons had dragged his father to Makhan Rai’s courtyard. Though D W 2 stated that he had found the dead body of the deceased on the road side and carried the same to the house of Shri Makhan Rai, there is no corroboration in h is evidence that the dead body was found lying on the road. 19 Therefore, in view of the above it has been established from the eviden ce of PW 1 and 2 that the dead body was found in the house of Makhan Rai i.e. f ather of Nirmal. The investigating officer i.e. PW-5 also stated that the dead b ody was found in the courtyard of Nirmal Rai i.e. son of Makhan Rai. PW-4 has ex hibited the FIR, lodged by him. In the said FIR also PW-1 stated about the invol vement of the accused persons. In his cross-examination PW-1 stated that, at the time of the occurrence, his mother i.e. PW-2 was in the house of Brajen Rai an d that having seen the occurrence she had returned and given resistance and ther eafter rushed to the police station. From his evidence it is also found that the house of Sri Brojen Rai was situated near the house of PW-1. Supporting the evidence of PW-1, his mother Smti. Jyoti Rai, deposing as PW-2, stated that, at the time of occurrence, she had visited the house of a ne ighbour and her son PW-1 and the deceased were in their house. She also stated t hat hearing about the commotion she returned home and found the appellants assau lting her husband. She further stated that the appellants, namely, Makhan Rai, Sanjoy Rai and Nirmal Rai had assaulted the decease with a dao, while Haridas Se n had assaulted him with a lathi. She also stated that she went to police statio n and gave information about the incident. This witness further stated that, aft er return from the police station, she found her husband in the courtyard of Mak han and that he succumb to the injuries. From the evidence of this witness , it is found that, though initially, i.e just prior to the incident, she had gone to the house of Brojen Rai, but coming to know about the occurrence, she immediate ly rush home and saw the incident. Despite cross-examination of PWs-1 and 2, no material contradiction could be elicited to render their evidence dis-believable . The investigating officer (PW-5), supporting the evidence rendered by PW-2, ha s stated that immediately after PW-2 had made an oral complaint, a written FIR was lodged and, as such, no GD Entry was made on the basis of the said oral comp laint.

#20. From the evidence of PW-5 sufficient force can be found in favour of PW -2’s evidence to believe her version that she had rushed to the police station and verbally lodged the information, followed by a written complaint (Ext. 1). PW-3 was the scribe of the FIR. He had no personal knowledge abo ut the incident. Sri Ramesh Mishra, who deposed as PW-4, stated that he heard a bout the murder of the deceased and saw the later in the hospital. He also state d that the wife of the deceased i.e. PW-2 had told him that Makhan Rai had kille d her husband. 21 In view of the forceful evidence given by PWs 1 and 2, about the involve ment of the appellants, we find no corroboration in the evidence of PW-4 to beli eve that he was informed about the involvement of only Makhan Rai. Therefore, hi s uncorroborated evidence does not negate the prosecution version, about the inv olvement of the appellants. To negate the prosecution version regarding involvement of Mr. Makhan Ra 22. i, DW-1, in his evidence, stated that the appellant Makhan Rai, on the date of o ccurrence, was working in his (DW-1) house from 7-00 a.m. to 7-00 p.m. and that he had heard that the deceased was beaten by some other person. Though this witn ess stated about the presence of the appellant, namely, Makhan Ray in his house from 7-00 a.m. to 7-00 p.m., Sri Makhan Rai, in his examination under Section 31 3 Cr.P.C. clearly stated that he was in his house. Therefore, the evidence of DW -1, that the Makhan Rai was in his house (DW-1’s) from 7-00 a.m. to 7-00 p.m. st ands negated by the said appellant himself. DW-2 stated that Kandaz Rai and Nirmal Rai visited his house and informe d that somebody had beaten Satyen i.e. the deceased and that, on being so infor med, he visited the place of occurrence and found the deceased lying on the road . He also stated that he, along with Sanjoy and Nirmal, carried the deceased to the house of Makhan Rai. But Sri Nirmal Rai, in his statement given u/s. 313 Cr .P.C., to a pointed question as to whether he would say anything, replied that h e had noting to say. The said appellant did not take the plea that he, along wit h Kandaz had informed the DW-2 that somebody had assaulted the deceased. That ap art, Kandaz Rai has not been examined to substantiate the said plea. Hence, the evidence of DW-2 lacks corroboration on material point. Therefore, his evidence does not help the defence to negate the involvement of Mr. Nirmal Rai.

#23. DW-3 stated that, on the date of occurrence, he saw the appellant Harida s Sen plucking chilli from 8 a.m. to 4 p.m. Butr, Sri Haridas Sen, in his statem ent given u/s. 313 Cr.P.C., did not take any such plea. Therefore, the evidence, given by DW-3, that Haridas was plucking chilli from 8 a.m. to 4 p.m. does not rule out the involvement of Haridas Sen with the alleged incident, which took p lace at around 4 p.m.

#24. sbelieve the prosecution version regarding involvement of the appellants. In view of the above, We find no force in evidence of the said DWs to di

#25. From the above discussed evidence, it is found that PWs 1 and 2, who wer e the eye witnesses to the incident, categorically indicated the involvement of appellants and their said evidence remained un-demolished. Their uncontroverted evidence coupled with the medical evidence, given by PW 6, safely lead to the c onclusion that, none except the appellants and others caused the fatal injuries, resulting the death of the deceased. The multiple injuries sustained by the deceased and the type of weapons used in inflicting the injuries, clearly imply that the appellants had caused the fatal injuries with intention to cause death of the deceased and thus, they com mitted murder of the deceased. Therefore, we are inclined to hold that, the pros ecution could successfully establish the charge, brought against the appellants. In our considered opinion, the learned Trial Judge committed no error by record ing impugned conviction and sentence u/s. 302 IPC. Therefore, we find no merit i n this appeal requiring any interference.

#26. ce are upheld and affirmed. Accordingly, the appeal is dismissed. The impugned conviction and senten In view of the provision prescribed by section 357 (A) Cr.P.C. the victi 27. m or his/ her dependents are entitled to get compensation for rehabilitation in appropriate cases. Therefore, for the sake of brevity and in the light of our di scussions, made in Criminal Appeal No. 93(J)/2005 (disposed on 22.12.2011), wi th regard to the victim compensation, as provided by Section 357(A) Cr.P.C., we make the following directions :

#1. As an interim measure, an amount of Rs. 50,000/- shall be deposited by t he State Government with the District Legal Services Authority of Darrang Distri ct within a period of two months from this date. The District Legal Services Aut hority, on receipt of the said money,. Shall make an enquiry to ascertain as to whether, there is dependent (s), who suffered loss and injury as a result of dea th of the deceased and if such dependant (s) or legal representative (s) need an y rehabilitation. 2. Upon such enquiry, if it is found that the dependent (s), if any, need r ehabilitation, then the District Legal Services Authority shall initially releas e 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. 3. It is made clear that if the District Legal Services Authority, after du e enquiry, arrives at the findings that there is no dependent (s) or that the de pendant (s) of the deceased/ victim does not required any rehabilitation, then t he District Legal Services Authority, shall refund the said amount of Rs. 50,000 /-, without delay, in favour of the State Government. 4. towards rehabilitation of the victim of his/ her dependant (s), in appropriate c ase, and for proper implementation of such scheme, as provided by Section 357-A , Cr.P.C., it is necessary to ascertain the dependency factor and the financial status of such victim, his/ her dependents, and of the accused person(s), as the case may be. Therefore, we direct that the Judicial Officers, working under, jurisdiction of this Court,. during the course of trial, shall ascertain (i) th e financial status of the victim or his/ her dependent (s), if any, (ii) whether such persons need rehabilitation, as the case may be and also the financial sta tus of the accused persons (s). The said findings of the enquiry shall be reflec ted in the judgment. For the purpose of providing financial assistance Registry shall furnish copy of this judgment to all the Judicial Officers under the jurisdiction of this Court. Let a copy of this judgment and order be furnished to Mr. Z. Kamar, lear 28. ned Public Prosecutor, and the Chief Secretary to the Government of Assam, for d oing the needful. Return the LCR.