Crl.A./37/2016
2021 Latest Caselaw 2074 Gua

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GAHC010177592015




                           THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                CRL.A.(J)/65/2015


                   SRI HANIF EKKA
                   S/O- LATE NAHARSAI EKKA
                   R/O- BOKIAL TEA ESTATE, PUCCA LINE,
                   P.S. & DISTRICT- GOLAGHAT, ASSAM

                                                                       .......

..........Appellant

-Versus-

1) THE STATE OF ASSAM

2) SMTI. NIRMALI TOPPO W/O- LATE SADRAM TOPPO R/O- BOKIAL TEA ESTATE, PUCCA LINE, P.S. & DISTRICT- GOLAGHAT, ASSAM

...................Respondents

WITH CRL.A./37/2016 WITH I.A./846/2016

SRI HANIF EKKA S/O- LATE NAHARSAI EKKA R/O- BOKIAL TEA ESTATE, PUCCA LINE, P.S. & DISTRICT- GOLAGHAT, ASSAM

.......

..........Appellant Page No.# 2/9

-Versus-

1) THE STATE OF ASSAM

2) SMTI. NIRMALI TOPPO W/O- LATE SADRAM TOPPO R/O- BOKIAL TEA ESTATE, PUCCA LINE, P.S. & DISTRICT- GOLAGHAT, ASSAM

...................Respondents

Advocates :

For the Appellant                    : Ms. Susmita Kanungoe,   Amicus Curiae

For the Respondents                  : Mr. Pranjal Borthakur, Additional Public Prosecutor

Date of Hearing and Judgment         : 06.09.2021



                                        BEFORE
                         HON'BLE MR. JUSTICE N. KOTISWAR SINGH
                        HON'BLE MR. JUSTICE MANISH CHOUDHURY

                                   JUDGMENT & ORDER


(Manish Choudhury,J)

Both these criminal appeals - Criminal Appeal (J) no. 65/2015 and Criminal Appeal no. 37/2016 - are directed against a judgment and order dated 30.05.2015 passed by the trial court of learned Sessions Judge, Golaghat in Sessions Case no. 160/2010. By the said judgment and order, the learned trial court has convicted the accused-appellant under Section 302, Indian Penal Code (IPC) and the accused-appellant has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default of payment of fine, to undergo simple imprisonment for another 1 (one) month.

2. The investigation was set in motion on the basis of a First Information Report [FIR] [Ext-

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5] lodged on 10.08.2010 by the informant, Smti. Nirmala Toppo before the In-Charge, Numuligarh Police Outpost. In the FIR, the informant naming the sole accused had, inter alia, alleged that at around 08-00 p.m. on 08.08.2010, the accused who lived nearby her house, came to her house. While having a talk with the informant's husband, Sadram Toppo the accused got angry all of a sudden and kicked her husband from inside the house to the courtyard. He then, seriously injured Sadram Toppo by striking him in his head with a pitchfork. Sadram Toppo was immediately taken to the tea garden hospital wherefrom he was referred to the Civil Hospital at Golaghat for better treatment. Sadram Toppo breathed his last when he was taken in an ambulance to Golaghat.

3. On receipt of the said FIR, the In-Charge, Numuligarh Police Outpost entered the same vide General Diary Entry no. 212 dated 09.08.2010. By forwarding the FIR to the Officer In- Charge, Golaghat Police Station for registering a case he entrusted the investigation to one Uttam Tamang, a Sub-Inspector of Police attached to the Numuligarh Police Outpost. On receipt of the FIR, the Officer In-Charge, Golaghat Police Station registered the same as Golaghat Police Station Case no. 391/2010 [G.R. Case no. 820/2010] under Section 302, IPC.

4. During the course of investigation, Uttam Tamang, the Investigating Officer (I.O.) of the case visited the place of occurrence. He prepared a sketch-map [Ext-4] of the place of occurrence and also examined the witnesses. An inquest report [Ext-2] on the dead body of the deceased was prepared on 09.08.2010 and the dead body was thereafter, sent for post- mortem examination. The post-mortem examination on the deadbody was conducted at K.K. Civil Hospital, Golaghat on 09.08.2010 and a post-mortem examination report [Ext-1] was prepared. The accused was arrested from his home and sent in to custody. A pitchfork [along with a bamboo handle], measuring about 3 ½ feet in length was seized in presence of witnesses by the I.O. vide a seizure list [Ext-3]. After completion of investigation, the I.O. of the case submitted a charge sheet being Charge Sheet no. 268/2010 [Ext-6] dated 30.09.2010 finding a prima facie case punishable under Section 302, IPC against the accused.

5. On being committed and upon receipt of the case record of G.R. Case no. 820/2010, Sessions Case no. 166/2010 was registered by the Sessions Court, Golaghat. Upon hearing the learned Public Prosecutor and the defence counsel on the point of charge and Page No.# 4/9

consideration of the records of the case, a charge under Section 302, IPC was framed against the accused person on 07.02.2011. When the charge was read over and explained to the accused, he pleaded not guilty and claimed to be tried.

6. During the course of the trial, the prosecution in order to bring home the charge examined 13 nos. of prosecution witnesses [PWs] and the defence cross-examined the witnesses. After closure of the prosecution evidence, the accused was examined under Section 313, CrPC. The defence did not adduce any evidence. One court witness, C.W.1 was examined who exhibited the General Diary Entry no. 192 dated 08.08.2010 [Ext-7]. The learned trial court after examination and appreciation of the evidence brought on record, had found the accused guilty of the offence of murder under Section 302, IPC. The accused has been convicted and sentenced accordingly by the impugned judgment and order dated 30.05.2015.

7. Heard Ms. S. Kanungoe, learned Amicus Curiae for the accused-appellant in Criminal Appeal (J) no. 65/2015 and Mr. P. Borthakur, learned Additional Public Prosecutor for the respondents. Though the names of learned counsel have appeared in Criminal Appeal no. 37/2016 none of them has appeared when the two criminal appeals are called for hearing.

8. Ms. Kanungoe, learned Amicus Curiae has submitted that the informant - P.W.1 appeared to be the only eye-witness to the incident. There was no other eye-witness to the incident to corroborate the version of P.W.1, who was living with the deceased in his house as the wife of the deceased. The accused was the son-in-law of the deceased and from the evidence on record, it could be inferred that the alleged act might have been committed either on grave and sudden provocation or upon a sudden quarrel. It is submitted by her that it is not safe to base the conviction on the sole testimony of the informant.

9. Mr. Borthakur, learned Additional Public Prosecutor for the State has supported the impugned judgment and order of conviction and sentence passed by the learned trial court. He has submitted that the testimony of the informant - P.W.1 could not be displaced by the defence to make it unreliable in any sense. The post-mortem examination report clearly Page No.# 5/9

indicates that more than one fatal wounds were inflicted by the accused on the deceased by a dangerous weapon. There was no evidence that the act was committed on grave and sudden provocation. It is his submission that the accused had committed the act with premeditation. Submitting as such, he has submitted that no interference of the impugned judgment and order is called for.

10. We have duly considered the submissions of the learned counsel for the parties and have also perused the materials, in original, available on record.

11. As has been mentioned above, as many as 13 (thirteen) PWs were examined by the prosecution. The prosecution witnesses were - (i) P.W.1 - Smti. Nirmala Toppo, the informant; (ii) P.W.2 - Dr. Syed Nazim Hussain, Sub-Divisional Medical & Health Officer (SDM&HO), K.K. Civil Hospital, Golaghat who conducted the autopsy on the deadbody of the deceased; (iii) P.W.3 - Sri Habil Tigga, son of Sona Tigga, a nephew of the deceased; (iv) P.W.4 - Sri Habil Tigga, son of Sikha Tigga, a nephew of the deceased; (v) P.W.5 - Sri Rajendra Karmakar, a neighbour; (vi) P.W.6 - Sri Anandaram Orang, another son-in-law of the deceased; (vii) P.W.7 - Sri Bipin Karmakar, a line chowkidar employee in the tea garden; (viii) P.W.8 - Sri Paharu Karmakar, a tea garden labour; (ix) P.W.9 - Sri Manish Ekka, a tea garden labour; (x) P.W.10 - Sri Gokul Tigga, a tea garden labour; (xi) P.W.11 - Sri Nawsai Toppo, a tea garden labour; (xii) P.W.12 - Sri Debet Tigga, a driver in Bokial Tea Garden Hospital; and

(xiii) P.W.13 - Sri Uttam Tamang, the I.O. of the case.

12. P.W.3 deposed that the deceased worked in Bokial Tea Garden and the accused married the elder daughter of the deceased. After marriage, the accused lived as a ghor jowai (one's son-in-law who lives in the house of in-laws). In cross-examination, he stated that he did not witness the incident. P.W.4 also deposed that he did not witness the incident. The informant - P.W.1 was the second wife of the deceased. In his testimony, P.W.5 deposed that he heard from witnesses that an incident had taken place near his house and the deceased was lying injured in the courtyard. Going there, he witnessed the same and a vehicle took the deceased to the hospital. He stated that he did not know who committed the incident. P.W.6, in his testimony, stated that he did not know about the incident. In his cross-examination, he stated Page No.# 6/9

that he married a daughter of the deceased. P.W.7 stated that he is a line chowkidar in the tea garden and he signed as a witness in the seizure list [Ext-3]. P.W.8 and P.W.9 stated that they did not witness the incident and they signed as witnesses in the seizure list [Ext-3]. P.W.9 also signed as a witness in the inquest report [Ext-2]. P.W.10 who was a nephew of the deceased, stated that he was not present at the time of the incident but he saw injury marks in the head and knee of his maternal uncle. He signed as a witness in the inquest report [Ext- 2]. P.W.11 was also a witness to the inquest and signed as a witness in the inquest report [Ext-2]. P.W.12 was a driver in Bokial Tea Garden Hospital. He deposed that in the evening hours on the date of the incident, the accused requested the tea garden authority to provide an ambulance. The deceased was taken in an ambulance provided by the tea garden authority. P.W.12 was also a witness to the inquest report [Ext-2].

13. From the testimonies of the above prosecution witnesses, it has emerged that none of these witnesses, that is, P.W.3 to P.W.12 witnessed the incident of alleged assault on the deceased by the accused.

14. The informant-P.W.1 in her examination-in-chief, stated that the accused was a son-in- law of the deceased. On the date of the incident she was coming back from a shop nearby her house at around 08-00 p.m. At that time, she saw from the road that the accused was striking her husband i.e. the deceased with a pitchfork in the courtyard. As a result of the assault, the deceased fell down on the ground. She then took her husband to the hospital at Bokial Tea Garden. The accused also went to the hospital later. She saw bleeding injuries in the head, neck and leg of her husband. From Bokial Tea Garden Hospital the deceased was taken to the Civil Hospital at Golaghat where he succumbed to the injuries on that day itself. She further stated that the FIR regarding the incident was lodged at the police station by her. In her cross-examination, P.W.1 stated that her first husband died about 20 years earlier. The first wife of the deceased also died about 4 years earlier. The deceased had two daughters from his first wife and the accused married the younger daughter of the deceased. The deceased and his first wife were regular workers of Bokial Tea Estate like her. After the death of his first wife, the deceased received an amount of Rs. 1,11,000/- from the tea garden for the services rendered by his first wife. P.W.1 further stated that though she was not married Page No.# 7/9

to the deceased she was living with him as a wife. A number of suggestions were made to P.W.1 by the defence which she denied. Suggestions were made by the defence to P.W.1 to the effect that she did not tell the police that she had seen the accused striking the deceased with a pitchfork and the accused did not assault the deceased with a pitchfork. Both the suggestions of the defence were, however, denied by P.W.1.

15. Though the learned Amicus Curiae has put forth a submission that the defence case was of denial of assault on the deceased by the accused with a pitchfork by referring to the suggestions above, such submission is without any force as the defence had failed to bring any contradiction in that regard by putting questions to the I.O. of the case, P.W.12 to the effect that P.W.1 did not tell to him [I.O.] that she had seen the accused striking the deceased with a pitchfork and the accused did not assault the deceased with a pitchfork. On this two vital aspects in the testimony of P.W.1-informant who was the only eye-witness to the incident of assault on the deceased by the accused, the defence has failed to bring any contradiction to give rise to any other hypothesis which is exculpatory to the accused, other than the one which is inexculpatory.

16. The post-mortem examination report [Ext-1], which was prepared after conducting autopsy on the dead body of the deceased on 09.08.2010, had reported two significant injuries and the two injuries were (1) Sharp cut wound size 3" x 2" x 2" over scalp on right temporal region, and (2) Sharp cut wound size 3" x 2" x 2" over scalp 2" below injury (1). It was further recorded that there was fracture of right temporal bone of scalp under injury no. (1) and injury no. (2). The membrane was found ruptured and remain covered with clotted and fluid blood under injury no. (1) and injury no. (2). P.W.2, the doctor who conducted the autopsy, endorsed the above findings. He opined that the injuries caused fracture of underlying right temporal bone of skull and injured the brain and soft tissue which caused intracranial hemorrhage and shock. According to him, all the injuries were ante-mortem. In his testimony, P.W.2 further deposed that in his opinion, the death was due to intracranial hemorrhage and shock as result of the head injuries sustained by the deceased. He proved the post-mortem examination report [Ext-1] and his signature in it [Ext-1(1)]. Conspicuously, the defence declined to cross-examine the doctor.

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17. The accused when he was examined in terms of the provisions of Section 313, CrPC by stating him the circumstances appearing in the evidence against him, had simply denied of assaulting the deceased. He stated that the deceased received a sum of Rs. 1,11,000/- from the tea garden authority after the death of his first wife. The accused further stated that when he was returning home from the shop the deceased was also going back to his house from second first wife's house and he found the deceased lying in a canal and took the deceased to hospital. When asked, the accused declined to adduce any evidence in his support. The said version had found no corroboration from any of the testimonies of the witnesses.

18. In absence of an iota of evidence to that effect, no credence can be given to the submission made by the learned Amicus Curiae that there was any grave and sudden provocation on the part of the deceased which led the accused to assault him, so as to bring the case within Exception 1 of Section 300, IPC. There was no semblance of evidence to the effect that the deceased was armed at the time of the incident. There was also no evidence to the effect that the accused had picked up the weapon of assault during the course of a sudden fight and in the heat of passion upon a sudden quarrel with the deceased. In such view of the matter, we are also unable to accept the alternative submission of learned Amicus Curiae that there was no premeditation on the part of the accused and the incident of assault was in a sudden fight occurred in the heat of passion upon a sudden quarrel so as to bring the case within Exception 4 of Section 300, IPC. On the contrary, it is found that there was more than one fatal blow on the person of the deceased and both the blows go consistent with a pitchfork. The defence has not been able to bring any evidence on record to indicate that the eye-witness i.e. the informant - P.W.1 had any inimical disposition towards the accused. A conviction can be based on the sole testimony of an eye-witness if such testimony is credible and inspires confidence. In the case in hand, the defence has not been able to bring any evidence against and to discredit the testimony of the sole witness. On the other hand, the Court is of the considered view that the prosecution has been able to prove the case against the accused beyond all the reasonable doubts.

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19. In view of the discussions made above, the criminal appeals are found devoid of any merit and the same have failed. Consequently, the same are dismissed.

20. Appreciating the assistance rendered by Ms. S. Kanungoe, learned Amicus Curiae, we hereby provide that she will be entitled to Rs. 7,500/- as professional fee, which shall be paid to her by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment.

                                  JUDGE                                        JUDGE




Comparing Assistant