Babil Hassa @ Jiru Babil Hassa vs The State Of Assam
2021 Latest Caselaw 2197 Gua

                                                              Page No.# 1/9

GAHC010201292016




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

                                Case No. : CRL.A(J)/45/2016

            BABIL HASSA @ JIRU BABIL HASSA




            VERSUS

            THE STATE OF ASSAM


            2:SRI YAKUB HASSA

             S/O-LT. PAWLUSH HASSA
             VILL-DIGHALIAGAON
             P.S.-TENGAKHAT
             DIST.-DIBRUGARH
             ASSAM

Advocate for the Petitioner   : AMICUS CURIAE

Advocate for the Respondent :

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BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

JUDGMENT AND ORDER

14.09.2021 (P.J. Saikia, J)

Heard Ms. P.D. Bordoloi, learned Amicus Curiae, appearing for the appellant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor for the State of Assam.

2. This is an appeal under Section 374(2) of the CrPC challenging the Judgment and Order dated 22.03.2016 passed by the learned Sessions Judge, Dibrugarh in Sessions Case No. 149/2014, convicting the appellant under Sections 302/326 of the Indian Penal Code. He was sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs.5,000/- and in default of payment of fine, he was sentenced to undergo Simple Imprisonment of 3 (three) months. For the offence under Section 326 of the IPC, the appellant was sentenced to undergo RI for 3 (three) years and was also sentenced to pay a fine of Rs.3,000.00, i/d SI for 3 (three) months.

3. The prosecution case against the appellant depicts a horrific story. On 04.05.2014, past midnight, the appellant attacked his wife (the deceased) and his two minor daughters, namely, Smti. Anu Hassa (PW-3) and Smti. Tanu Hassa (PW-4) with a sharp weapon. The appellant had chopped off the head of his wife with a dao. He also caused cut injuries to PW-3 and to PW-4. Thereafter, the appellant picked up the head of his wife and straight way went to the Police Station at Tengakhat. The appellant confessed before Police that he had killed his wife.

4. Shri Yakub Hassa, a fellow villager, lodged the FIR at about 8.30 AM on 04.05.2014 itself. There he has written that at about 1.30 AM on that day, the appellant had decapitated his wife and also wounded his two daughters with a dao.

5. The dead body of the deceased was subjected to post mortem examination. The report of the Doctor goes like this:

"Injuries:-

1. Chop wound over neck at C4 and C5 level, horizontal, completely separating the head from the rest of the body;

2. Chop wound of size 8x4 cm x bone deep over left cheek cutting through the maxilla and upper portion of left ear;

3. Chop wound of size 8 x 2 cm x bone deep over fronto parietal scalp, mild line, in saggital plane, cutting through the outer table of frontal and both parietal bones;

4. Chop wound of size 6 x 2 cm x bone deep over right parietal scalp, 2cm right to injury No. 3;

5. Chop wound of size 7 x 3 cm at mid of left palm, cutting the underlying bones;

6. Chop wound of size 7 x 3 cm, muscle deep over anterior aspect of right shoulder;

7. Chop wound of size 2 x 1.5 cm, over right palm at base of thumb cutting the underlying bone;

8. Incised wound of size 6 x 2 cm over right breast.

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9. Chop wound of size 12 x 3 cm x bone deep over lateral surface of right leg, 2 cm below knee;

10. Chop wound of size 3 x 1.5 cm x bone deep over lateral aspect of the right leg, 1 cm above lateral malleolous."

6. During the period of investigation, the PW-3 and PW-4 were also examined by Doctors. PW-3 was examined by Dr. Dhrubajyoti Deka (PW-11). His report goes like this: "Approximately 5 cm x 3 cm wound over left forearm deep to muscle/tendon along with extensor tendon injury left middle finger.

Weapon used- Sharp weapon.

Age of injury- Approximately 5 hours.

Nature of injury- Grievous.

After proper investigation two units of blood were transfused.

Orthopedic consultation was taken. Planned for secondary repair of tendons."

7. PW-4 was examined by Dr. Sushanta Barua (PW-12). His report goes like this: "On examination there was lacerated wound 6 cm x 3 cm size over the anterolateral aspect of left leg distally around 5 cm above lateral malleolus. The tendons were cut with bone exposed. Tenderness over the left distal leg. Range of motion was restricted. Laceration of size 6 cm x 2 cm over the dorsum of right foot and soft tissues and tendons exposed.

Nature of injury- Grievous caused by sharp weapon.

Diagnosis was fracture of both bone left leg open, with extensor tendon injury."

8. Finally, on conclusion of the investigation Police submitted charge-sheet against the appellant.

9. The trial Court framed the charges under Sections 302 and 326 of the IPC against the appellant and on being read over the said charges he pleaded not guilty.

10. During the trial of the case as many as 15 (fifteen) prosecution witnesses were examined. All the witnesses were cross-examined and stood discharged.

11. In his examination under Section 313 CrPC, when the incriminating circumstances were put before the appellant, he claimed that two unknown persons committed the offences and those two unknown persons coerced him to take the head of his wife to the Police Station and to claim before Police that he had committed the offence. According to the appellant, those two unknown persons even handed over to him the dao, which was used for committing the offence and on being asked by them he had handed over the dao to the Police. The appellant further claim that his neighbor Smti. Anjali Bhengra (PW-2) had obstructed the entire incident. The appellant has stated that in front of his deceased wife, the PW-2 and her nephew Bablu Bhengra had assaulted him. According to the appellant, PW-2 did not have any children of her own and, therefore, she often used to take away his daughters. The appellant has stated that for that reason, he even publicly called her a "barren lady". The appellant could not recall any other reason, apart from that, for the enmity with PW-2. In spite of claiming all these, the appellant did not adduce any evidence.

12. Finally, the trial Court found the appellant guilty and convicted him.

13. We have carefully gone through the prosecution evidence.

14. Shri Yakub Hassa (PW-1) is the informant. He has stated in his evidence that he was informed about the occurrence by a person called Migen Handique (PW-10). PW-1 has stated that from PW-3 and 4 he came to know that the appellant had committed the death of the deceased. PW-1 had seen Page No.# 4/9

some injuries on their bodies and they told him that the appellant had caused those injuries when they tried to save their mother, when the appellant attacked her. According to PW-1, within a short time Police arrived at the place of occurrence and, thereafter, he had lodged the FIR in the Police Station.

15. During cross-examination, the PW-1 has stated that he never saw the occurrence and he came to know about the same from Sri Migen Handique (PW-10). PW-1 has further stated that there is no electricity in the house of the appellant and, therefore, while he first arrived there it was dark inside the house. According to the PW-1, since there was no light inside the house of the appellant, he did not enter into the house.

16. The second prosecution witness Smti. Anjali Bhengra (PW-2) is a neighbor of the appellant. She has stated that on the day of occurrence, at about 1 AM at night, the elder daughter (PW-4) of the appellant was shouting in her house. She has stated that the PW-4 was crying and saying that her mother was killed by her father. According to PW-2, the PW-4 herself called the VDP (Village Defence Party) personnel. PW-2 has stated that immediately both the girls i.e. PW-3 and PW-4 came to her house and then only she noticed injuries on their legs and on other parts of their body.

17. In her cross-examination, PW-2 has stated that she did not know how the occurrence took place. She also could not say if the injuries sustained by the PW-3 and 4 were caused by falling over some substances. PW-2 disclosed that at the time of the occurrence it was totally dark.

18. The third prosecution witness is Smti. Anu Hassa (PW-3). She is one of the daughters of the appellant. At the time of occurrence, she was less than nine years of age. At the time of adducing evidence she claimed to be nine years old and also claimed to be a student of Class-III. Therefore, the learned trial Judge ascertained her fitness to tender evidence by putting her different questions and, thereafter, the trial Judge certified that the PW-3 was capable of giving rational answers to the questions put to her.

19. In her examination-in-chief, PW-3 has stated that at the relevant time of occurrence, she along with her mother, and her elder sister (PW-4) were sleeping inside the house. According to PW-3, her father told the deceased to wake up and told her that he wanted to tell something to her. PW-3 has disclosed that her mother told the appellant to tell her in the next morning. PW-3 has stated that on hearing the answer of her mother, the appellant threatened her to cut down and without waiting any moment he dealt a dao blow upon the deceased. The head of the deceased was chopped off. PW-3 has further stated that her father/appellant also caused cut injuries to her mother's hand and abdomen. PW-3 has stated that when she along with her sister/PW-4 tried to save the deceased, the appellant then caused cut injuries on her left hand and also caused cut injury on the hand as well as on both the legs of PW-4. PW-3 has claimed that she and her elder sister/PW-4 ran out of the house and then they noticed that the appellant was coming out of the house with the head of their mother in his hand. The appellant reportedly told the girls that from that day they would not have their mother. PW-3 states that she and the PW-4 immediately went to the house of their grandmother/ PW-2.

20. In her cross-examination PW-3 has stated that their properties were looked after by their grandmother/PW-2.

21. The fourth prosecution witness is Smti. Tanu Hassa (PW-4). She is the eldest daughter of the appellant and the deceased. On the day of occurrence, she was less than 12 years of age and, therefore, the trial Judge interrogated her to ascertain her ability to adduce evidence and after that, the trial Judge certified that she was capable of giving rational answers to the questions put to her.

22. In her evidence, PW-4 has stated that on the night of the occurrence, she was sleeping with PW-3 and the deceased. She has stated further that the appellant returned home at midnight and she had opened the door of the house for him. According to PW-4, the appellant said the deceased that he would Page No.# 5/9

be telling her something but the deceased told him that she would hear that matter in the next morning. PW-4 has stated that she fell asleep by then. But she was awakened by some sounds and then she had noticed that her father/appellant was cutting the deceased and, therefore, she along with her sister/PW-3 tried to save the deceased. PW-4 has stated that the appellant caused a cut injury on the left hand of PW-3 and immediately after that, she along with PW-3 ran out of the house. PW-4 has disclosed that after their departure, the appellant also came out of the house and at that time, he was holding the head of the deceased and he went straight to the Police Station. PW-4 has stated that when she and her sister/PW-3 raised alarm over the incident, the neighbors gathered there and all of them attended to their injuries by putting cloth covers over the injuries.

23. In her cross-examination, PW-4 has stated that the house, where they reside, belongs to their uncle. PW-4 further stated that she has a brother who lives with their grandmother/PW-2. She has disclosed that the PW-2 looks after their whole property.

24. The fifth prosecution witness is Tula Prasad Handique (PW-5). He is the Government Gaonburah. His examination-in-chief is like this-

On the day of occurrence he was in his house and at about 3 AM, the appellant came to his house with the head of the deceased and a dao. The appellant confessed before him that he had killed his wife with the dao. PW-5 advised the appellant to go to the Police Station. On enquiry, PW-5 came to know that the appellant had in fact gone to the Police Station, as advised. Then PW-5 went to the house of the appellant and witnessed the dead body of the deceased. PW-5 also noticed that the daughters and the son of the appellant also sustained cut injuries on their legs as well as in their hands. According to PW- 5, one daughter sustained cut injury on her leg and one daughter sustained cut injury on her hand, while the son of the appellant sustained cut injury on his leg.

25. During cross-examination, PW-5 stated that he did not know if the occurrence was committed by some unknown persons. He denied having any knowledge if the injuries sustained by the daughters and the son of the appellant were caused by some other persons.

26. The sixth prosecution witness is Prafulita Handique (PW-6). She has stated that on the day of occurrence at about 1.30 AM she heard the shouting cries of PW-3 and 4. The girls were saying that the appellant had killed their mother. PW-6 has claimed that she had clearly heard their voices. On hearing those voices, she asked her husband not to go out of the house as she thought that it would be dangerous to go out of the house at that time. According to PW-6, within a very short time, many people gathered outside the place of occurrence and they rescued PW-3 and 4 and took them to the house of PW-2. PW-6 has stated that by that time she also reached the place of occurrence. PW-6 has disclosed that she noticed cut injuries on the leg of PW-3 and cut injury on the hands of PW-4. PW-6 has stated that in the morning Police brought the appellant to the place of occurrence and at that time he was carrying the decapitated head of the deceased in a bag.

27. In her cross-examination, the PW-6 has stated that prior to the occurrence the relationship between the appellant and the deceased was very good. PW-6 denied having any knowledge if some other persons, other than the appellant, had committed the murder of the deceased. She denied having any knowledge if some persons, other than the appellant himself, had caused the injuries to the PW-3 and PW-4.

28. The seventh prosecution witness is Helith Demta (PW-7). He has stated in his evidence that the occurrence took place at about 1.30 AM on 04.05.2014. He has further stated at that time he was sleeping in his house and after hearing the cries of PWs-3 and 4, he woke up. He heard that the girls were loudly telling that their father had cut down their mother. At that time, the local VDP President Migen Handique (PW-10) had come to his house and informed him about the occurrence. After hearing Page No.# 6/9

the news, he transmitted the news amongst the other villagers. PW-7 has stated that he saw PW-3 and PW-4 along with their 2 (two) year old sibling. PW-7 has stated that he had noticed that PW-4 had sustained cut injury on her leg. He also noticed cut injury on the left hand palm of PW-3. PW-7 further noticed cut injury on the leg of the 2(two) year old son of the appellant.

29. During cross examination, PW-7 denied having any knowledge if some persons, other than the appellant, had committed the murder of the deceased. He denied having any knowledge if some persons, other than the appellant himself, had caused the injuries upon the PW-3 and PW-4.

30. The eighth prosecution witness is Sri Phonidhar Bordoloi (PW-8). He is a Police Constable. On 04.05.2014, he was working at Tengakhat Police Station. PW-8 has stated that on 04.05.2014 at about 4.30/5 AM, the appellant had come to the Police Station with a decapitated head of a women and a dao in his hands. PW-8 has disclosed that on seeing the appellant in that manner he immediately informed SI Tapan Das (PW-15), who immediately seized the dao from the appellant. According to PW-8, a Home Guard named Rupam Patro (PW-9) was present with him in the Police Station at that time and he also witnessed the said incident. PW-8 has stated that the appellant told his name to the Police Officers present there.

31. In his cross-examination PW-8 has stated that when the appellant had come to the Police Station he along with PW-9 were present in the Police Station.

32. The PW-9 Rupam Patro has stated in his evidence that on 04.05.2014 at about 4.30/5.00 AM he was with PW-8. At that time the appellant had come to the Police Station and he was carrying a head of a woman and a dao. On seeing that incident he along with PW-8 had informed the PW-15. According to PW-9 the appellant had stated before them that during a quarrel with his wife he had dismembered her head.

33. In his cross-examination he has stated that on being asked by the PW-15 he had put his signature in the seizure list.

34. PW-10/Migen Handique has stated in his evidence that his residence is situated at a distance of about 50 mtrs from the house of the appellant. On the day of occurrence at about 1 AM he was awakened by the cries of the children of the appellant. He came out of his house and by shouting at the house of the appellant, he asked the children to stop shouting. PW-10 has stated that PW-3 and PW-4 started to shout again and told him that their father had cut down their mother. They also told him that their father had also caused cut injuries to them. On hearing that, PW-10 immediately called other villagers and asked them to come to the house of the appellant. According to PW-10, he saw the PW-3 and 4 in the courtyard of the house of PW-2 in injured condition. PW-10 has further stated that after the day break, Police came to the house of the appellant and when they entered into the house they found the decapitated dead body of the deceased.

35. In his cross-examination, PW-10 denied having knowledge about any ill-feeling between the appellant and the PW-2. PW-10 further denied having knowledge if the appellant did not like his wife/deceased going out with PW-2. PW-10 has stated that prior to the occurrence the relationship between the deceased and the appellant was good. PW-10 denied having any knowledge if some unknown persons had caused the occurrence.

36. The eleventh prosecution witness is Dr. Dhrubajyoti Deka (PW-11). On a Police requisition he had examined the PW-3. He spoke about his report which is exhibited as Ext. 5.

37. In his cross-examination, PW-11 has stated that the injuries sustained by the PW-3 might also be caused by a fall over a sharp fencing.

38. Dr. Sushanta Baruah (PW-12) had examined the PW-4 on a Police requisition. In his Page No.# 7/9

examination-in-chief, he has proved his report as Ext. 6.

39. In his cross-examination, the PW-12 has stated that it is very unlikely that both the injuries sustained by PW-4 at the same time, but such a proposition cannot be entirely ruled out.

40. The thirteenth prosecution witness is Dr. Nayanmoni Pathak (PW-13). He had conducted the post-mortem examination upon the deceased and he proved the report as Ext. 7.

41. In his cross-examination, PW-13 has stated that he did not notice the weapon, which was used by the appellant at the time of occurrence, in the Court.

42. The fourteenth prosecution witness is Ranjit Moran (PW-14), who is a Police Officer. He has stated that on 04.05.2014 he was the Officer-in Charge of Tengakhat Police Station. Further, he has stated that on that day at about 4.30 AM the appellant had arrived at the Police Station with the head of his wife and stated before him that he had killed his wife and brought the head with him to the Police Station. PW-14 has stated that he immediately made the GD Entry No. 68 dated 04.05.2014 and entrusted SI Tapan Deka (PW-15) to investigate the matter. PW-14 has stated that PW-15 had seized the dao from the hand of the appellant in the Police Station. PW-14 disclosed that at about 8.10 AM the written ejahar was filed by the PW-1 and he accordingly registered the Tengakhat P.S. Case No. 39/2014.

43. In his cross-examination he has denied the suggestion that prior to the occurrence the appellant had gone to the Police Station on 3 / 4 occasions to lodge any ejahar.

44. The examination-in-chief of PW-15 relates to the investigation part. The dao (M. Ex. 1) was identified by PW-15 in the Court to be the one which he had seized from the possession of the appellant.

45. During his cross-examination, PW-15 has stated the PW-1 never told him that he had seen the alleged incident. PW-15 admitted that he did not send the dao (M.Ex. 1) to FSL to confirm that it was the actual murder weapon.

46. We have meticulously examined the evidence. There is no denial that the head of the deceased was chopped off by a sharp weapon. There is also no denial that the said occurrence took place inside the house at midnight and at that time, the appellant, the deceased and the PWs-3 and 4 were present inside the house. In this case PW-3 and PW-4 are the only eye witnesses. Both of them were below 12 years of age the time of occurrence. Should their evidence be discarded on the ground that they are child witnesses and they can be easily tutored.

47. According to Section 118 of the Indian Evidence Act, everybody can be a witness in a case. Even a lunatic is also competent witness unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. Law does not provide that children are not competent witness.

48. The law regarding the evidence of a child witness is well settled. There is no rule or practice that in every case the evidence of a child witness must be corroborated. It is a rule of prudence that it is desirable to have some corroboration when there is evidence of child witness.

49. Both PW-3 and PW-4 had sustained cut injuries, which were allegedly caused to them by the appellant. The fact that they had sustained cut injuries is corroborated by the medical evidence of PW- 11 and PW-12. The aforesaid fact is also supported by PWs-1,2,5,6,7 and 10. If the injuries were caused to PW-3 and 4 by some other persons then why would they accuse their own father of causing those injuries to them.

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50. Regarding the evidentiary value of an injured witness, the Supreme Court in Bhajan Singh Alias Harbhajan Singh and others v. State of Haryana, reported in (2011) 7 SCC 421, has held ---

"36. The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide: Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259; Kailas & Ors. v. State of Maharashtra, (2011) 1 SCC 793; Durbal v. State of Uttar Pradesh, (2011) 2 SCC 676; and State of U.P. v. Naresh & Ors., (2011) 4 SCC324)."

51. The evidences of PW-3 and 4 are corroborated by the medical evidence and by PWs-1,2,5,6,7 and 10. There is nothing in the cross-examination of PW-3 and 4 to disbelieve them.

52. In P Ramesh v. State Rep by Inspector of Police, 2020(20) SCC 593, the appellant was tried for the murder of his wife. During the course of the trial, the prosecution sought to adduce the evidence of the two children of the appellant , who were eight years and six years old. The trial judge had subjected the children to voir dire and came to the conclusion that the testimony of the six years old could not be recorded as the child witness did not know the judge and the lawyers. Similarly, in regard to the eight years old witness the trial judge observed that he was unable to state who the judge was. As a result, he was considered to be incapable to testify on behalf of the prosecution. No evidence of the two children was recorded.

53. Nonetheless the appellant was convicted by the trial court. On appeal High Court disagreed with the said decision and set aside the judgment of the trial court. High court remanded the matter to the trial court with a direction to examine the two child witnesses and to pass a fresh judgment. The appellant moved the Supreme Court. The top court agreed with the view taken by the High Court. Paragraph 16 of the judgment is quoted as under---

"16. In order to determine the competency of a child witness, the Judge has to form her or his opinion. The Judge is at liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i) understand questions put as a witness; and (ii) give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto. [Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64 : 2004 SCC (Cri) Page No.# 9/9

7] A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. [ Sarkar, Law of Evidence, 19th Edn., Vol. 2, Lexis Nexis, p. 2678 citing Director of Public Prosecutions v. M, 1998 QB 913 : (1998) 2 WLR 604 : (1997) 2 All ER 749 (QBD)] If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined."

54. Coming back to the case in hand, the trial Judge had subjected the PW-3 and 4 to voir dire and thereafter certified that the witnesses were capable of giving rational answers to the questions put to them. Therefore, the trial Judge is the best person to assess the capability of child witness to testify in a trial. He has tested the capability of PW-3 and 4 and found them to be capable witnesses and, therefore, recorded their evidences.

55. The testimony of a child witness cannot be rejected simply on the ground that in their age, he/she is likely to be tutored. It is not the law that if a witness is a child his/her evidence shall be rejected even if it is found to be reliable. The law is that the evidence of a child witness must be evaluated very carefully and with greater circumspection.

56. We are of the opinion that the trial Court has correctly appreciated the prosecution evidence and arrived at a correct finding. Therefore, we are not inclined to interfere with the impugned finding of the trial Court. Accordingly, we hereby hold that the present appeal is devoid of any merit. The impugned judgment is affirmed and the appeal stands dismissed.

57. Before parting with the record, we would put on record our appreciation for Ms. P.D. Bordoloi, learned Amicus Curiae for her valuable assistance. The Registry is directed to pay the notified remuneration to Ms. Bordoloi.

LCR shall be returned.

                    JUDGE                                  JUDGE


Comparing Assistant