Gauhati High Court
CRL.A(J)/10/2017 on 6 June, 2024
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/28
GAHC010119692017
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRIMINAL APPEAL [J] NO. 10/2017
Buburam Deka
..................Appellant
-VERSUS-
The State of Assam
...................Respondent
Advocates :
Appellant : Mr. N.J. Das, Legal Aid Counsel
Respondent : Mr. K.K. Das Additional Public
Prosecutor, Assam.
Date of Hearing, Judgment & Order : 06.06.2024
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
HON'BLE MR. JUSTICE ROBIN pHUkAN
JUDGMENT & ORDER [ORAL]
[M. Choudhury, J]
This criminal appeal from Jail is directed against a Judgment and Order
dated 22.12.2016 passed by the Court of learned Sessions Judge, Nalbari in
Sessions Case no. 129 of 2011. By the Judgment and Order dated
22.12.2016, the accused-appellant has been convicted for the charge of
murder under Section 300, Indian Penal Code [IPC]. For finding him guilty
for the charge of murder, the accused-appellant has been sentenced under
Section 302, IPC to undergo rigorous imprisonment for life and to pay a fine
of Rs. 20,000/-, in default of payment of fine, to undergo simple
imprisonment for another two months. It has been ordered that the period of
detention already undergone by the accused-appellant is to be set-off
against the period of sentence.
2. The investigation commenced pursuant to institution of a First Information
Report [FIR] by one Ajit Saloi [P.W.1] as the informant before the Officer In-
Charge, Tihu Police Station at around 09-20 a.m. on 18.02.2011. On receipt
of the FIR, the Officer In-Charge registered the same as Tihu Police Station
Case no. 14/2011 for the offence under Section 302, IPC.
3. In the FIR [Ext.-1-1], the informant [P.W.1] had inter alia stated that
Kaniska Saloi, who was the informant's younger brother, had a grocery shop
by the side of the road in front of the residence of the informant and Kaniska
Saloi. At about 07-45 a.m. on that day, that is, on 18.02.2011, Kaniska Saloi
was having a conversation with one Ambika Barman [P.W.4], who used to
reside in front of the informant's house. At that point of time, the accused
coming to the place of occurrence with a dao on his hands, stopped near
them. After a brief conversation amongst the three, the accused had
suddenly hacked Kaniska Saloi on his neck from behind with the dao. It was
further mentioned that after killing Kaniska Saloi, the accused ran away from
the place. Expecting that his brother would survive the assault, the informant
and others took him to Tihu PHC for treatment. But the doctors there
declared Kaniska Saloi dead.
4. Upon registration of the FIR, the Officer In-Charge, Tihu Police Station
entrusted the investigation of the case to one Bhaben Das [P.W.15], a Sub-
Inspector of Police, attached to Tihu Police Station. On being entrusted and
after making enquiry with the informant [P.W.1], the Investigation Officer
[I.O.] of the case, P.W.15 proceeded to Tihu Hospital where the deadbody of
the deceased was kept. The I.O. [P.W.15] found the deadbody with blood
smeared in the wearing apparels. Having noticed a deep oblique cut injury
on the neck below ear, the I.O. [P.W.1] took a photograph of the deadbody
[Material Ext.-1]. Thereafter, the I.O. [P.W.15] proceeded to the place of
occurrence [P.O.], that is, the spot in front of the grocery shop of the
deceased where the alleged incident occurred. The I.O. also prepared a
Sketch Map of the P.O. [Ext.-15]. A dao smeared with blood was also
recovered from another place nearby vide a Seizure List [Ext.-10] in
presence of witnesses. The statements of a number of witnesses including
the seizure witnesses, were recorded by the I.O. [P.W.15] under Section
161, CrPC. In the meantime, an Executive Magistrate performed the inquest
on the deadbody of the deceased and prepared an Inquest Report [Ext.-10].
The I.O. seized a number of articles vide two seizure memos, Seizure List
[Ext.-2] and Seizure List [Ext.-14] from the P.O. After holding inquest, the
deadbody was forwarded to Swahid Mukunda Kakati Civil Hospital, Nalbari
for post-mortem examination. The post-mortem examination of the
deadbody of the deceased was performed on 18.02.2011 itself by the then
Senior Medical & Health Officer, Dr. Ramesh Chandra Goswami [P.W.8],
Swahid Mukunda Kakati Civil Hospital, Nalbari and the Autopsy Doctor
[P.W.8] prepared a Post-Mortem Examination [PME] Report [Ext.-9]
recording his findings therein. The accused was arrested from Tihu town and
after being arrested, he was produced before the court at Tihu. The I.O.
[P.W.15] also got the statements of a number of witnesses recorded under
Section 164, CrPC. The dao seized vide Seizure List, Ext.-10 was forwarded
to the Forensic Science Laboratory [FSL], Assam at Guwahati for examination
along with the articles seized vide the other Seizure List [Ext.-14].
5. The I.O. [P.W.15] after completing the investigation into the case, Tihu
Police Station Case no. 14/2011 [corresponding G.R. Case no. 14/2011]
submitted a charge-sheet under Section 173[2], CrPC vide Charge-Sheet no.
27/2011 on 30.06.2011 [Ext.-16] finding a prima facie case well
established against the accused for the offence of murder under Section 300,
IPC. Along with the charge-sheet, the I.O. had inter alia forwarded a FSL
Report [Ext.-11]. On receipt of the charge-sheet, the learned Judicial
Magistrate, First Class, Tihu caused the appearance of the accused from Jail
custody on 26.09.2011. As the copies were ready, the same were furnished
to the accused as per the provisions of Section 207, CrPC. As the offence
under Section 302, IPC is exclusively triable by the Court of Sessions, the
learned Judicial Magistrate, 1st Class, Tihu committed the case records of
G.R. Case no. 14/2011 to the Court of Sessions, Nalbari by notifying the
learned Public Prosecutor and by directing the concerned Jail Authority to
produce the accused on 01.10.2011 before the Court of Sessions, Nalbari
['the trial court', for short].
6. On receipt of the case records of G.R. Case no. 14/2011, the Court of
Sessions, Nalbari registered the same as Sessions Case no. 129/2011. On
appearance of the accused before it and after hearing the learned Public
Prosecutor and the learned defence counsel, the learned the trial court
framed the following charge under Section 302, IPC against the accused on
13.12.2011 :-
That you on or about the 18th day of February, 2011 at
about 07-45 a.m. at Khudra Makhibaha [Balabori Supa]
under Tihu Police Station in the district of Nalbari have
committed murder by causing death of Sri Konishka Saloi
by hurting him with dao on his neck from his backside and
thereby committed an offence punishable under Section
302, IPC and within my cognizance.
7. When the charge was explained and read over to the accused, the accused
abjured his guilt and claimed to be tried. During the course of the trial, the
prosecution side examined fifteen nos. of witnesses; exhibited sixteen nos. of
documents; and one material exhibit to bring home the charge against the
accused.
8. The witnesses examined by the prosecution were :- [i] P.W.1 - Sri Ajit Saloi;
[ii] P.W.2 - Sri Narayan Barman; [iii] P.W.3 - Sri Nripen Barman; [iv] P.W.4
- Sri Ambika Barman; [v] P.W.5 - Smti. Rina Barman; [vi] P.W.6 - Smti.
Himani Saloi; [vii] P.W.7 - Sri Rubul Barman; [viii] P.W.8 - Dr. Ramesh
Chandra Goswami; [ix] P.W.10 - Sri Sanatan Kalita; [x] P.W.11 - Sri Jayanta
Saloi; [xi] P.W.12 - Sri Sankar Chandra Rabha; [xii] P.W.13 - Sri Bonajit
Deka; [xiii] P.W.14 - Sri Hemanta Kumar Chakrabarty; and [xiv] P.W.15 - Sri
Bhaben Das. The documents exhibited by the prosecution in the trial were as
follows :- [i] Ext.- 1 : FIR; [ii] Ext.-2 : Seizure List; [iii] Ext.-3 : Statement of
P.W.2 recorded under Section 164, CrPC; Ext.-4 : Statement of P.W.3
recorded under Section 164, CrPC; Ext.-5 : Statement of P.W.4 recorded
under Section 164, CrPC; Ext.-6 : Statement of P.W.5 recorded under Section
164, CrPC; Ext.-7 : Statement of P.W.6 recorded under Section 164, CrPC; &
Ext.-8 : Statement of P.W.7 recorded under Section 164, CrPC; [iv] Ext.-9 :
Post-Mortem Examination [PME] Report; [v] Ext.-10 : Inquest Report; [vi]
Ext.-10 : Seizure List; [vii] Ext.-11 : FSL Report; [viii] Ext.-12 : FSL Report;
[ix] Ext.-13 : Statement P.W.13 recorded under Section 164, CrPC; [x] Ext.-
14 : Seizure List; [xi] Ext.-15 : Sketch Map of the P.O.; and [xii] Ext.-16 :
Charge-Sheet.
9. After closure of the prosecution evidence, the accused was examined under
Section 313, CrPC. When the accused was asked whether he would adduce
defence evidence, the accused answered in the negative. After hearing the
learned counsel for the parties and upon evaluation of the
evidence/materials on record, the learned trial court finding the accused
guilty of the offence of murder, heard him on the point of sentence under
Section 235[2], CrPC. Thereafter, the accused has been sentenced for the
offence of murder in the manner, mentioned above.
10. We have heard Ms. N.J. Das, learned Amicus Curiae for the accused-
appellant and Mr. K.K. Das, learned Additional Public Prosecutor for the
respondent, State of Assam.
11. Mr. Das, learned Amicus Curiae appearing for the accused-appellant has
submitted that out of the non-official witnesses, only one of them had
claimed to have witnessed the alleged incident. Mr. Das has contended that
the learned trial court had ignored the pleas of the defence taken during the
course of the trial. It is his contention that the accused was a daily wage
labour and as a part of his occupation, he used to carry a dao in his hands. It
was normal for the accused to go out of his residence in the morning with a
dao in his hands. The accused used to go in the morning searching for
works. Thus, it cannot be said that the alleged incident was pre-meditated.
He has further pointed out that there was only one single injury found on the
deadbody of the deceased. He has further submitted, in the alternative, that
element of provocation can be inferred from the evidence/materials on
record and therefore, the offence cannot be held to be murder of the first
degree.
12. Mr. Das, learned Additional Public Prosecutor appearing for the State has
supported the Judgment and Order of conviction and sentence passed by the
learned trial court. He has strenuously submitted that there is no scope for
interference in the case in hand. Though there was one eye-witness, but his
testimony was consistent and reliable all throughout and his testimony was
amply corroborated by the testimonies of the other witnesses and
documentary evidence. The other prosecution witnesses had seen the
accused either just prior to the incident or just after the incident. The
supporting evidence of the prosecution witnesses had clearly established the
case of the prosecution. It is his submission that though there was only a
single blow but that blow was by a dao and from the nature of injury, as
reported from the PME Report, such a blow was sufficient in the ordinary
course to cause death. As such, the only conclusion that can be drawn from
the evidence/materials on record is that the accused had committed the
offence of murder. According to him, the defence pleas sought to be urged
by the learned Amicus Curiae were feeble in nature as there were no
supporting materials to substantiate such defence pleas.
13. We have given consideration to the submissions of the learned counsel for
the parties and have also perused the evidence/materials available in the
case records of Sessions Case no. 14/2011, in original. We have also gone
through the testimonies of the witnesses as well as the documentary
evidence led during the course of the trial and the decisions cited at the Bar.
14. It was the witness, Ambika Barman [P.W.4] who had claimed to have
witnessed the incident. In his testimony, P.W.4 stated that he was a daily
wage labourer and his house was situated in front of the house of the
informant [P.W.1] and the deceased with a road in between. P.W.4 deposed
that the incident occurred in front of his house, which was at Balabori
Chuburi. The shop of the deceased was nearby. At around 07-30/07-45 a.m.
on the relevant day, he and Kaniska Saloi were standing in front of Kaniska
Saloi's shop [P.O]. At that time, the accused came from the western side and
stopped near them. When he [P.W.4] asked the accused whether he would
go for work, the accused replied that as he was not feeling well, he would
not go for work. P.W.4 stated that he and the accused sometimes used to
work together. Thereafter, both of them proceeded to the residence of
Narayan Barman [P.W.2] to oversee the work and after overseeing the work
there, they returned to the P.O. again. Then the accused asked him to
prepare tobacco. When he [P.W.4] was busy preparing tobacco, the accused
gave a blow on the backside of Kaniska Saloi by the dao, which he was
carrying in his hand. After giving the blow, the accused ran away from the
P.O. towards the western side with the dao in his hand. Finding the injury on
Kaniska Saloi's neck, he [P.W.4] started raising alarm. On hearing his alarm,
the wife of Kaniska Saloi and his wife, Rina Barman [P.W.5] came to the P.O.
immediately. People from the neighborhood also gathered at the P.O.
immediately thereafter. The victim was thereafter, taken to the hospital in an
auto rickshaw. P.W.4 further stated that his statement was recorded by
Police as well as in the court. He exhibited his statement recorded under
Section 164, CrPC as Ext.-5 with his signature therein as Ext.-5[1].
15. A number of suggestions were put to P.W.4 by the defence and those
suggestions were categorically denied by this witness. Some of the
suggestions were with regard to his previous statement. It is to be noted
that when the I.O. was examined as P.W.15, he was not confronted in any
manner with any marked part of the previous statement of P.W.4 in order to
bring out any material contradiction or omission, on record, in the evidence
of P.W.4 given before the court with his previous statement. In such view of
the matter, further discussion on this aspect appears not necessary. Despite
cross-examination at length, nothing substantial was elicited from this
witness to discredit his testimony.
16. On evaluation of the testimonies of the prosecution witnesses - P.W.1,
P.W.2, P.W.3, P.W.5 & P.W.7 vis-à-vis the testimony of P.W.4, it is noticed
that these prosecution witnesses had supported and corroborated the case of
the prosecution and the testimony of P.W.4 on material points.
17. P.W.1, Ajit Saloi was the informant and an elder brother of the deceased,
Kaniska Saloi. He used to reside in the same house with the deceased. P.W.1
testified that the incident occurred at about 07-45 a.m. on 18.02.2011. He
has stated that just prior to the incident, when he was going to another
place from home, he saw the accused proceeding towards east direction with
a dao in his hand. When he returned, he saw that the accused and P.W.4
were in conversation with his younger brother in front of the grocery shop of
his younger brother. P.W.1 went inside his residence behind. When he was
inside his residence, he heard the cry of P.W.4 that the accused had inflicted
a blow by the dao on his younger brother. He immediately came to the P.O.
and saw the accused running towards the western direction with the dao in
his hand. He stated that he found a cut injury on the backside of the head of
his younger brother with blood oozing out of it. P.W.4 was holding his
younger brother at that point of time and his younger brother's clothes and
hands were soaked with blood. His younger brother was thereafter, taken to
Tihu Hospital but the doctor's there declared him already dead. P.W.4 also
testified about the seizure of dao. He heard that the accused had inflicted
the injury on his brother when his brother asked the accused to pay the
balance amount. In cross-examination, P.W.4 stated that he did not witness
the incident of inflicting the blow on his brother by the accused as he was
not present at the P.O. at that time.
18. Like P.W.1, P.W.2 also testified that the incident had occurred at 07-45 a.m.
on 18.02.2011. P.W.2 was a co-villager. P.W.2 deposed about visiting his
residence by the accused at about 07-30 a.m. on the relevant date. P.W.4
testified that at about 07-30 a.m., the accused came to his residence and
told him that he would go for work in another place. At that time, the
accused was holding a dao in his hand. After telling him so, the accused
proceeded towards the western side. It was after about ten minutes, he
found the deceased with a cut injury on his backside, with P.W.4 holding
him. He stated that it was reported by P.W.4 to him that it was the accused
who gave the blow on the deceased by dao. P.W.2 stated that the dao was
recovered from the backside of the house of the accused. He stated that he
was a witness to the seizure of articles seized vide Seizure List, Ext.-2. P.W.2
exhibited his statement recorded under Section 164, CrPC as Ext.-3. When
P.W.2 was cross-examined, he stated that the accused used to earn his
livelihood as a daily wage labourer and he used to carry a dao whenever he
was to go for working. He stated that the accused used to purchase articles
from the shop of the deceased on credit sometimes.
19. P.W.3, Nripen Barman was a relative of the accused. He knew the accused,
the deceased and the informant. On the incident, P.W.3 deposed that the
incident had occurred before 08-00 a.m. on 18.02.2011. He testified that he
saw the deceased near the shop with the accused and P.W.4. At that time,
he was proceeding towards the shop of the deceased. Prior to reaching the
P.O., he heard sounds like cutting of banana tree and the alarm raised by
P.W.4. He then saw the accused running with a dao in his hand. He stated
that immediately thereafter, P.W.2, P.W.13 and others came to the P.O.
P.W.3 was told by P.W.13 that the accused after leaving the dao near his
[P.W.13] house ran away. P.W.3 also testified that the injury on the
deceased was on the backside of the neck. P.W.3 was a witness to the
Seizure List, Ext.-2. He further stated that the prior to the incident, the
accused was once convicted in a theft case and the accused was sentenced
for two years for that offence. P.W.3 exhibited his statement recorded under
Section 164, CrPC as Ext.-4, with his signature therein as Ext.-4[1]. A
number of suggestions were put to this witness in relation to his previous
statement recorded by the I.O. But when the I.O. [P.W.15] was examined,
no marked part from the previous statement of P.W.3 was put to the I.O.
after P.W.3 categorically denied those suggestions. The defence also made a
suggestion to this witness that when the accused was proceeding towards
his residence, it was the deceased who gave a kick from the backside and in
return, the accused moved his dao which accidentally hit the deceased. The
suggestion was denied by P.W.3.
20. P.W.5, Rina Barman is the wife of P.W.4. She stated to have reached the
place of occurrence at 07-30 a.m. hearing alarm raised by her husband
[P.W.4] to the effect that 'Buburam had cut'. P.W.5 testified that she saw the
accused running away towards the western side with a dao in his hand.
P.W.5 corroborated the version of the previous prosecution witnesses,
discussed hereinabove, that the injured was kept held by her husband
[P.W.4]. P.W.5 further stated that blood was oozing out from the neck of the
deceased. P.W.5 like the other witnesses, stated that the deceased was
taken to hospital immediately thereafter, but the doctor at the hospital
declared him already dead. P.W.5 also exhibited her statement recorded
under Section 164, CrPC as Ext.-6 with her signature therein as Ext.-6[1]. A
number of suggestions were put to P.W.5 and those suggestions were
categorically denied by P.W.5.
21. P.W.6, Himani Saloi is the wife of the informant [P.W.1] and was the sister-
in-law of the deceased. P.W.6 also stated that the incident occurred at 07-45
a.m. on the relevant day and on the road in front of the house of the
deceased. At the time of the incident, she was standing in the courtyard.
P.W.6 testified that she heard the alarm raised by P.W.4 to the effect that
'Buburam had cut'. Then, she ran towards the road and saw the accused
running away from the P.O. towards the western side of the road with a dao
in his hand. P.W.4 was seen to have been holding the deceased with his wife
[P.W.5] and her husband [P.W.1] standing nearby. P.W.6 exhibited her
statement recorded under Section 164, CrPC as Ext.-7 with her signature
therein as Ext.-7[1]. When P.W.6 was cross-examined by defence, P.W.6
reiterated that she saw the accused running towards the western side. P.W.6
was given a suggestion that the accused owed money to the deceased as
against purchase of goods from the shop of the deceased on credit. In reply,
P.W.6 stated that she did not have any knowledge in that regard. P.W.6 also
denied a suggestion that she did not state before the Police that the accused
had owed money to the deceased against purchase of goods on credit and
when accused demanded the same, the accused gave the dao blow on the
deceased. No marked part from the previous statement of P.W.6 was put to
the I.O. [P.W.15] when he was cross-examined by the defence in order to
bring out any material contradiction/omission on record.
22. P.W.7, Rubul Barman was an owner of a Tempo. He deposed about taking
the deadbody of the deceased to Swahid Mukunda Kakati Civil Hospital,
Nalbari for post-mortem examination on 18.02.2011. He exhibited his
statement recorded under Section 164, CrPC as Ext.-8 with his signature
therein as Ext.-8[1].
23. The statements of the prosecution witnesses - P.W.2, P.W.3, P.W.4, P.W.5,
P.W.6 and P.W.7 - were recorded under Section 164, CrPC and the
prosecution exhibited those previous statements as Ext.-4, Ext.-5, Ext.-6,
Ext.-7, Ext.-8 and Ext.-9 respectively. It is trite law that the statements
recorded under Section 164, CrPC are not substantive evidence in a case and
cannot be made use of except to corroborate or contradict the witnesses.
The prosecution witnesses - P.W.2, P.W.3, P.W.4 and P.W.5 - were not
related to the deceased. Out of them, the prosecution witness, P.W.3 was
related to the accused whereas the prosecution witnesses, P.W.6 and P.W.7
were related to the deceased. There is no evidence/materials on record to
the effect that any of these prosecution witnesses was adversely disposed
towards the accused for any reason to be branded him/her as an interested
witness. The prosecution witnesses - P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6
- are co-villagers of the accused and the deceased and, as such, their
presence or their arrival at the P.O. immediately after the incident was quite
natural. The prosecution side has brought the previous statements of these
prosecution witnesses for the purpose to bring home the point that these
prosecution witnesses were consistent throughout supporting the
prosecution case that the at the time and place of occurrence there was an
assault by the accused on the deceased with a dao on a vital part on the
person of the deceased leading to his instantaneous death. Despite the
previous statements of these prosecution witnesses being exhibited by the
prosecution, the defence did not make any effort to contradict the
testimonies of these prosecution witnesses with their previous statements.
24. P.W.10, Sanatan Kalita being a co-villager of the accused, the deceased and
the informant, testified that he knew all three of them. As regards the P.O.,
P.W.10 stated that the incident occurred on the road on Balabori Suburi road
of Khudra Makhibaha. He stated that when Police personnel visited the
paddy field of one Ghanashyam Barman [not a witness], which was at a
distance of half furlong from the P.O., he also went there. The Police
personnel recovered a blood stained dao of about seven inches length from
that place and he subscribed his signature in the Seizure List [Ext.-10]
prepared in that connection. P.W.10 stated that he did not see the incident
of assault.
25. P.W.11, Jayanta Saloi is also a co-villager. Being so, he testified that he knew
the accused, the deceased and the informant. As regards the time of
incident, P.W.11 stated that the incident occurred at 07-45 a.m. On the date
of the incident, when he went out to tether the cows, he saw the accused
and P.W.4 proceeding, with a dao in the hand of the accused. Later on, he
heard that the accused cut a person. On his return, he witnessed that the
accused was proceeding with a dao in his hand through the field of P.W.13.
At the P.O., he saw the deceased lying. P.W.11 stated that a blood stained
dao was seized by the Police from the paddy field of Ghanashyam Barman
and he recognized the seized dao to be the dao, which he saw in the hands
of the accused earlier on the day. P.W.11 was a witness to the Seizure List
[Ext.-10], whereby the dao was seized.
26. P.W.13, Bonajit Deka deposed that being a co-villager, he knew the
informant, the deceased and the accused. P.W.13 further deposed that at
the time and on the date of the incident, that is, at about 08-00 a.m. on
18.02.2011, he was sitting on the verandah of his house. He heard sound of
wailing and weeping. Simultaneously, he saw the accused, armed with a
blood stained dao, running along his courtyard towards the rear of his house.
When P.W.13 asked the accused as to what had happened, the accused said,
'Moi Roh, Moi Roh' [It's me, It's me]. P.W.13 then proceeded to the
P.O. P.W.13 heard that the accused had cut Kaniska Saloi. P.W.13 saw
Kaniska Saloi being lifted in a Tempo. P.W.13 exhibited his statement
recorded under Section 164, CrPC as Ext.-13, with his signature therein as
Ext.-13[1].
27. The prosecution witnesses - P.W.11 and P.W.13 - deposed on the point of
post-occurrence conduct of the accused. Their testimonies had lent support
to the evidence of other prosecution witnesses on the aspect that after the
assault the accused ran away from the P.O. with a dao in hand. The
testimonies of these two prosecution witnesses, P.W.11 and P.W.13 bear
relevance from the standpoint of Section 8 of the Evidence Act, 1872.
28. P.W.14, Hemanta Kumar Chakrabarty was a witness to the Seizure List, M.R.
no. 11/2011 [Ext.-14], whereby, the I.O. [P.W.15] seized few wearing
apparels of the deceased, Kaniska Saloi viz. [1] Blood stained clothes worn
by deceased Kaniska Saloi; [2] A pair of ash coloured shorts; [3] A cream
coloured vest; and [4] A dark blue coloured T-shirt.
29. After the ocular evidence and the connected documentary and other
evidence, it is now necessary to turn to the medical evidence.
30. P.W.8, Dr. Ramesh Chandra Goswami who was posted as the Senior Medical
& Health Officer at Swahid Mukunda Kakati Civil Hospital at Nalbari, on
18.02.2011, performed the post-mortem examination on the deadbody of the
deceased on 18.02.2011. After performing autopsy on the deadbody of the
deceased, he recorded his findings a Post-Mortem Examination [PME]
Report, which he exhibited as Ext.-9. In the PME Report [Ext.-9], he
recorded his findings as under :-
I - External appearance :
1. Condition of subjects tout emaciated, decomposed,
etc. :- Deadbody of male of about 37 years, fair
complexion, average built, short haired, eyes closed
mouth closed, rigor mortis present.
2. Wounds-position, and character :- Deep cut wound
present in the upper most part of back of neck. Size
15 cm x 2.5 cm x 5 cm. Margin regular blood stained
and cervical vertebrae with spinal cord completely
cutting vessels of neck.
* * * * * * *
V - Muscles, Bones and Joints:
1. Injury :- As already described in Cloumn No. 1.
2. Disease or deformity :- Nil
3. Fracture :- 2nd cervical vertebrae fractured
5. Dislocation :- Nil
More detailed Description of Injury or Disease
1. Deep cut wound over upper part of back of neck,
margin blood stained can't be washed out with water
ante-mortem wound.
2. Spinal Cord completely severed.
3. Big vessels injured.
On the basis of the above findings, P.W.8 opined that the cause of death was
shock [neurologic and hemorrhagic] due to injury to the vital fracture [spinal
cord and big vessels of neck]. Initially, the defence raised a question on the
PME Report, which the witness, P.W.8 had exhibited, as a carbon copy. In
reply, P.W.8 stated that Ext.-9 is a carbon copy having original signature.
P.W.8 was again called for re-examination. During re-examination, P.W.8
stated that the PME Report used to be prepared in triplicate. The first copy
and the second copy of the PME Report were handed over to Police. During
re-examination, he [P.W.8] exhibited the second copy of the PME Report
with his signature therein. He further stated that there was a deep cut
wound at the upper most part of the back of the neck measuring 15 cm x 2.5
cm x 5 cm. He further stated that the spinal cord of the deceased was found
completely severed and a big vessel of the neck was found injured. The
defence declined to cross-examine P.W.8 after re-examination.
31. The I.O. [P.W.15] during the course of investigation, seized [i] one wooden
handle dao of length 46 cm with stain of suspected blood [Sero 2783/A]; [ii]
one glass bottle of soil containing stain of blood mix [Sero 2783/B]; [iii] one
ash coloured half-pant with stain of suspected blood [Sero 2783/C]; [iv] one
cream colour banion with stain of suspected blood [Sero 2783/D]; and [v]
one deep sky colour sporting stain of suspected blood [Sero 2783/E]. Those
articles seized vide Seizure Lists, Ext.-10 and Ext.-14 were forwarded for
serological examination to the Forensic Science Laboratory [FSL]. P.W.12,
Dr. Sankar Chandra Rabha who was a Junior Scientific Officer, Serology
Division, Directorate of Forensic Science, Assam testified before the learned
trial court as P.W.12. In his testimony, P.W.12 deposed about the results of
examination on the items forwarded to the FSL. In his testimony, he has
stated that he recorded the results of FSL Examination as under :-
1. Ext. No. Sero 2783/A, Sero 2783/B, Sero 2783/D and
Sero 2783/E gave positive test for human blood of
Group 'AB'
2. Ext. No. Sero 2783/C gave positive test for blood only
but its origin and blood Group could not be given due
to degradation of blood.
P.W.12 exhibited the FSL Report as Ext.-11 with his signature therein as
Ext.-11[1]. The defence did not cross-examine P.W.12.
32. From the testimony of the Autopsy Doctor [P.W.8] and the Post-Mortem
Examination Report [Ext.-9], it has clearly emerged that the deceased
sustained a deep cut wound in the upper most part of back of the neck. The
size of the wound was 15 cm x 2.5 cm x 5 cm. As a result of the injury, the
cervical vertebrae with the spinal cord had completely cut the vessels of the
neck. The spinal cord was completely severed and there were injuries in the
big vessels. The injury sustained by the deceased was ante-mortem. The
cause of death was shock [neurologic and hemorrhagic] and the deceased
sustained injury on a vital part of his body. From the injury and the material
exhibit, Mat. Ext.-1, it has clearly emerged that the deceased sustained the
injury from a sharp edged weapon. The photograph, Mat. Ext.-1 was not
challenged in any manner whatsoever by the defence at any point of time.
33. On evaluation of the entire evidence including the testimonies of the
prosecution witnesses and the medical evidence, led by the prosecution,
which is found consistent to one another, the only conclusion that can be
reached is that the deceased met instantaneous death at the P.O. due to the
injury sustained on his person. Such kind of injury can be inflicted by a
sharp-edged cutting weapon. The dao is a sharp-edged cutting weapon. That
the accused was present at the P.O. with a dao in his hand and that the blow
was given by the accused on the deceased have been clearly established and
the defence has not been able to bring anything on record to dislodge them
during the course of the trial.
34. The offence of culpable homicide is defined in Section 299 of the Indian
Penal Code [IPC]. Whoever causes death by doing an act with the intention
of causing death, or with the intention of causing such bodily injury as is
likely to cause death, or with the knowledge that he is likely by such act to
cause death, commits the offence of culpable homicide. Culpable homicide is
the genus and the offence of murder its species, meaning thereby, all
murders are culpable homicides but all culpable homicides are not murders.
The offence of murder is defined in Section 300, IPC, which reads as under
:-
300. Murder -
Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the
death is caused is done with the intention of
causing death, or
Secondly - If it is done with the intention of causing
such bodily injury as the offender knows to be
likely to cause the death of the person to
whom the harm is caused, or
Thirdly - If it is done with the intention of causing
bodily injury to any person and the bodily
injury intended to be inflicted is sufficient
in the ordinary course of nature to cause
death, or
Fourthly - If the person committing the act knows that it
is so imminently dangerous that it must, in
all probability, cause death, or such bodily
injury as is likely to cause death, and
commits such act without any excuse for
incurring the risk of causing death or such
injury as aforesaid.
35. The Hon'ble Supreme Court of India in Abdul Waheed Khan @ Waheed and
others vs. State of Andhra Pradesh, reported in [2002] 7 SCC 175,
had considered its earlier decisions in Virsa Singh vs. State of Punjab,
AIR 1958 SC 465, and State of Andhra Pradesh vs. Rayavarapu
Punnayya, [1976] 4 SCC 382, and the distinction between the offences of
culpable homicide and murder, defined in Section 299, IPC and Section 300,
IPC. For ready reference, the relevant excerpts from Abdul Waheed Khan
are quoted hereinbelow :-
11. This brings us to the crucial question as to which
was the appropriate provision to be applied. In the
scheme of IPC culpable homicide is the genus and
'murder', its specie. All 'murder' is 'culpable
homicide' but not vice versa. Speaking generally,
'culpable homicide' sans 'special characteristics of
murder is culpable homicide not amounting to
murder'. For the purpose of fixing punishment,
proportionate to the gravity of the generic offence,
IPC practically recognizes three degrees of culpable
homicide. The first is, what may be called,
'culpable homicide of the first degree'. This is the
gravest form of culpable homicide, which is defined
in Section 300 as 'murder'. The second may be termed
as 'culpable homicide of the second degree'. This is
punishable under the first part of Section 304.
Then, there is 'culpable homicide of the third
degree'. This is the lowest type of culpable
homicide and the punishment provided for it is also
the lowest among the punishments provided for the
three grades. Culpable homicide of this degree is
punishable under the second part of Section 304.
* * * * * * * *
15. For cases to fall within clause [3], it is not
necessary that the offender intended to cause death,
so long as the death ensues from the intentional
bodily injury or injuries sufficient to cause death
in the ordinary course of nature. Rajwant Singh vs.
State of Kerala, AIR 1966 SC 1874, is an apt
illustration of this point.
16. In Virsa Singh vs. State of Punjab [AIR 1958 SC 465]
Vivian Bose, J. speaking for the Court, explained
the meaning and scope of clause [3]. It was observed
that the prosecution must prove the following facts
before it can bring a case under Section 300
'thirdly'. First, it must establish quite
objectively, that a bodily injury is present;
secondly, the nature of the injury must be proved.
These are purely objective investigations. Thirdly,
it must be proved that there was an intention to
inflict that particular injury, that is to say, that
it was not accidental or unintentional or that some
other kind of injury was intended. Once these three
elements are proved to be present, the enquiry
proceeds further, and fourthly, it must be proved
that the injury of the type just described made up
of the three elements set out above was sufficient
to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and
inferential and has nothing to do with the intention
of the offender.
17. The ingredients of clause 'thirdly' of Section 300
IPC were brought out by the illustrious Judge in his
terse language as follows : [AIR p. 467, para 12]
12. To put it shortly, the prosecution must prove
the following facts before it can bring a case
under Section 300 'thirdly';
First, it must establish, quite objectively,
that a bodily injury is present;
Secondly, the nature of the injury must be
proved; These are purely objective
investigations.
Thirdly, it must be proved that there was an
intention to inflict that particular bodily
injury, that is to say, that it was not
accidental or unintentional, or that some other
kind of injury was intended.
Once these three elements are proved to be
present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of
the type just described made up of the three
elements set out above is sufficient to cause
death in the ordinary course of nature. This
part of the enquiry is purely objective and
inferential and has nothing to do with the
intention of the offender.
18. The learned Judge explained the third ingredient in
the following words [at p. 468] : [AIR para 16]
The question is not whether the prisoner intended to
inflict a serious injury or a trivial one but
whether he intended to inflict the injury that is
proved to be present. If he can show that he did
not, or if the totality of the circumstances justify
such an inference, then, of course, the intent that
the section requires is not proved. But if there is
nothing beyond the injury and the fact that the
appellant inflicted it, the only possible inference
is that he intended to inflict it. Whether he knew
of its seriousness, or intended serious
consequences, is neither here nor there. The
question, so far as the intention is concerned, is
not whether he intended to kill, or to inflict an
injury of a particular degree of seriousness, but
whether he intended to inflict the injury in
question; and once the existence of the injury is
proved the intention to cause it will be presumed
unless the evidence or the circumstances warrant an
opposite conclusion.
19. These observations of Vivian Bose, J. have become
locus classicus. The test laid down by Virsa Singh
case [AIR 1958 SC 465] for the applicability of
clause 'thirdly' is now ingrained in our legal
system and has become part of the rule of law. Under
clause thirdly of Section 300 IPC, culpable homicide
is murder, if both the following conditions are
satisfied i.e. [a] that the act which causes death
is done with the intention of causing death or is
done with the intention of causing a bodily injury;
and [b] that the injury intended to be inflicted is
sufficient in the ordinary course of nature to cause
death. It must be proved that there was an intention
to inflict that particular bodily injury which, in
the ordinary course of nature, was sufficient to
cause death viz. that the injury found to be present
was the injury that was intended to be inflicted.
20. Thus, according to the rule laid down in Virsa Singh
case [AIR 1958 SC 465] even if the intention of the
accused was limited to the infliction of a bodily
injury sufficient to cause death in the ordinary
course of nature, and did not extend to the
intention of causing death, the offence would be
murder. Illustration [c] appended to Section 300
clearly brings out this point.
36. In this connection, the decision in Pulicherla Nagaraju @ Nagaraja
Reddy vs. State of Andhra Pradesh, reported in [2006] 11 SCC 444,
can be referred to. In the said decision, some of the circumstances which are
to be taken note of to draw inference as regards presence of intention, have
been mentioned. It has been observed therein that the intention to cause
death can be gathered generally from a combination of a few or several of
the following, among other, circumstances : [i] nature of the weapon used;
[ii] whether the weapon was carried by the accused or was picked up from
the spot; [iii] whether the blow is aimed at a vital part of the body; [iv] the
amount of force employed in causing injury; [v] whether the act was in the
course of sudden quarrel or sudden fight or free for all fight; [vi] whether the
incident occurs by chance or whether there was any premeditation; [vii]
whether there was any prior enmity or whether the deceased was a
stranger; [viii] whether there was any grave and sudden provocation, and if
so, the cause for such provocation; [ix] whether it was in the heat of
passion; [x] whether the person inflicting the injury has taken undue
advantage or has acted in a cruel and unusual manner; and [xi] whether the
accused dealt a single blow or several blows. The above list of circumstances
is, of course, not exhaustive and there may be several other special
circumstances with reference to individual cases which may throw light on
the question of intention.
37. The learned Amicus Curiae has raised a point that as the deceased had
sustained only one injury, an intention on the part of the accused to cause
death cannot be readily inferred.
38. In this connection, it is also apt to refer to the following observations made
in Jagrup Singh vs. State of Haryana, reported in [1981] 3 SCC 616,
which are made following the ratio laid down in Virsa Singh [supra] :-
6. There is no justification for the assertion that the
giving of a solitary blow on a vital part of the
body resulting the death must always necessarily
reduce the offence to culpable homicide not
amounting to murder punishable under Section 304
Part II of the Code. If a man deliberately strikes
another on the head with a heavy log of wood or an
iron rod or even a lathi so as to cause a fracture
of the skull, he must, in the absence of any
circumstances negativing the presumption, be deemed
to have intended to cause the death of the victim or
such bodily injury as is sufficient to cause death.
The whole thing depends upon the intention to cause
death, and the case may be covered by either clause
1stly or clause 3rdly. The nature of intention must
be gathered from the kind of weapon used, the part
the body hit, the amount of force employed and the
circumstances attendant upon the death.
39. The learned Amicus Curiae has raised a plea to the effect that there was an
element of provocation from the end of the deceased and it was in response
to such provocation, the accused had reacted and the provocation was
sudden and grave. To support such plea, the learned Amicus Curiae has
drawn attention to the suggestions put by the defence to few of the
prosecution witnesses to the effect that the accused used to purchase goods
on credit from the grocery shop of the deceased, who was the owner of the
grocery shop.
40. Exception 1 to Section 300, IPC has laid down that culpable homicide is not
murder if the offender, whilst deprived of the power of self-control by grave
and sudden provocation, causes the death of the person who gave the
provocation or causes the death of any other person by mistake or accident.
Explanation thereto has provided that whether the provocation was grave
and sudden enough to prevent the offence from amounting to murder is a
question of fact.
41. The Hon'ble Supreme Court of India in B.D. Khunte vs. Union of India
and others, reported in [2015] 1 SCC 286, has considered the ingredients
of Exception 1 to Section 300 of the Penal Code in the following manner :-
12. What is critical for a case to fall under Exception 1 to
Section 300 IPC is that the provocation must not only be
grave but sudden as well. It is only where the following
ingredients of Exception 1 are satisfied that an accused
can claim mitigation of the offence committed by him from
murder to culpable homicide not amounting to murder:
[1] The deceased must have given provocation to the
accused.
[2] The provocation so given must have been grave.
[3] The provocation given by the deceased must have
been sudden.
[4] The offender by reason of such grave and sudden
provocation must have been deprived of his power of
self-control; and
[5] The offender must have killed the deceased or any
other person by mistake or accident during the
continuance of the deprivation of the power of
self-control.
42. Taking into consideration the afore-mentioned ingredients vis-à-vis the
evidence/materials on record of the case in hand, we find that the plea of
grave and sudden provocation is not to be accepted. If a person buys goods
from a shop on credit, then such a person at all point of time thereafter, has
the knowledge that he owes money to the shop owner. It is natural that
when the shop owner meets such a person, he would ask as to when he
would get his money against the goods delivered to the person on credit. For
the person also such a query from the shop owner is an expected one. When
something is expected, it cannot be sudden. Thus, there cannot be any
element of grave and sudden provocation even if the deceased as the shop
owner had made a query to the accused as to when he would be paying his
money against the goods purchased on credit. Arguendo, there is nothing in
the evidence/materials on record that the deceased had, apart from asking
the money, provoked the accused in any manner whatsoever. Noticeably, the
accused did not offer any kind of explanation during his examination under
Section 313, CrPC in that connection.
43. It is, thus, clear that in order to find out whether the act will come within
the scope and ambit of Clause 'thirdly' of Section 300, IPC, some of
important factors which are required to be considered to ascertain about
the intention, are the kind of weapon used, the part of the body hit, the
amount of force employed, etc. From the evidence/materials on record, it
has unerringly emerged that at the time of occurrence, the accused was
carrying a dao, a sharp-edged cutting weapon. There is conclusive
evidence that it was the accused who had inflicted the bodily injury on the
person of the deceased at the P.O. at the time and on the date of the
incident. The bodily injury was inflicted on a vital part of the person of the
deceased, that is, the back side of the neck. It has also emerged that the
blow was struck by the accused with the intention to cause the particular
injury. Even if there was a single blow by the dao, but from the ferocity
and the force with which the blow was struck and the suddenness of the
attack, the only conclusion possible to be drawn is that the accused had
struck the blow with the intention to cause that particular bodily injury to
the deceased, which was sufficient in the ordinary course of nature to
cause death of a person and as a result, the deceased met his death
instantaneously. The law is well settled that even if the intention of the
accused was limited to the infliction of a bodily injury sufficient to cause
death in the ordinary course of nature and did not extend to the intention
of causing death, the offence would still be murder. Illustration [c]
appended to Section 300, IPC has clearly made this point and it reads as
under :-
Illustration [c] :
A intentionally gives Z a sword-cut or club-wound
sufficient to cause the death of a man in the
ordinary course of nature. Z dies in consequence.
Here, A is guilty of murder, although he may not
have intended to cause Z's death.
44. Taking into consideration the facts and circumstances obtaining in the case
in its entirety, as discussed above, and for the reasons assigned therein,
we are of the clear view that the case clearly falls under Clause 'thirdly' of
Section 300 of the Penal Code, which is punishable under Section 302 of
the Penal Code. Therefore, we find no ground, not to speak of good and
sufficient ground, to interfere with the conclusion recorded by the learned
trial court for the charge of murder in the case in hand. Resultantly, the
criminal appeal is found to be bereft of any merit. Consequently, affirming
the Judgment and Order of Conviction and Sentence passed by the learned
trial court in Sessions Case no. 129/2011, the appeal is dismissed.
45. Before parting with, we reiterate the recommendation made by the trial
court for awarding adequate compensation to the victim, that is, the wife
of the deceased under Section 357A, CrPC. The District Legal Services
Authority, Nalbari shall consider the matter of granting compensation to
the victim as per the extant Victim Compensation Scheme, framed under
Section 357A, CrPC.
46. This Court records its appreciation for the assistance rendered by the
learned Legal Aid Counsel. The learned Legal Aid Counsel is to be paid
remuneration as per the rules in force.
47. The records of the learned trial court are to be sent back immediately.
JUDGE JUDGE
Comparing Assistant
