Gauhati High Court
Sri Madan Panika vs The State Of Assam And Anr on 28 January, 2025
Bench: Kalyan Rai Surana, Soumitra Saikia
Page No.# 1/30
GAHC010290302019
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./454/2019
SRI MADAN PANIKA
S/O- SRI KONWAR DAS PANIKA, R/O- VILL.- SIALKATI, P.O. AMONI, P.S.
SAMOGURI, DIST.- NAGAON, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE P.P., ASSAM
2:SMT. BHAGYABATI GOUR
W/O- LATE TANKESWAR GOUR
R/O- VILL.- SIALKATI
P.O. AMONI
P.S. SAMOGURI
DIST.- NAGAON
ASSAM
Advocate for the Petitioner : MR. A M BORA, ALHAJJ I UDDIN,S AHMED,MR. M A
LASKAR,MR. D K BAIDYA,MS P DASGUPTA
Advocate for the Respondent : PP, ASSAM,
Linked Case : CRL.A(J)/59/2020
ANIL GOUR
NAGAON
ASSAM.
Page No.# 2/30
VERSUS
THE STATE OF ASSAM
REP. BY PP
ASSAM.
------------
Advocate for : MR. A DHAR
AMICUS CURIAE
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
Dates of hearing : 24.10.2024
Date of Judgment &Order : 28.01.2025
JUDGMENT &ORDER (CAV)
[Soumitra Saikia, J.]
These Criminal appeals are directed by two accused persons assailing the
Judgment dated 27.09.2019 passed by the Addl. District and Sessions Judge No.
2, Nagaon, Assam in Sessions T(1) Case No. 18(N)/2016 arising out of G.R.
Case No. 352/14. The accused persons were tried for offences under Sections
302/34 of the IPC in connection with Samaguri P.S. Case No. 126/2014. By the
said Judgment, both the accused persons are sentenced to suffer imprisonment
for life and to pay fine of Rs. 10,000/- each and in default of payment of fine, to
suffer rigorous imprisonment for three months under Section 302/34 of the IPC.
2. An FIR was lodged by the informant, one Smti Bhagyawati Gour at the
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Samaguri Police Station on 26.05.2014, alleging that the accused persons had
entered their house on 25.05.2014 at about 09.30 PM and had assaulted her
husband with ‘axe’ and murdered him. When she and her daughters tried to
prevent the assault, they were also assaulted and were injured in the process.
The said FIR was registered as Samaguri P.S. Case No. 126/14 under Sections
302/34 of the IPC and pursuant to the police completing the investigation,
submitted the charge-sheet against the four accused persons named in the FIR.
Accused Joy Sing Gour and Kamala Gour were declared proclaimed offenders
and the case proceeded against the remaining two (2) accused namely Anil
Gour and Madan Panika.
3. The prosecution had examined as many as twelve (12) witnesses to prove
the charges levelled against the accused persons. The accused were also
examined under Section 313 of the Cr.P.C., where their plea was of total denial.
Consequently, the learned Addl. District and Sessions Judge No. 2, Nagaon after
consideration of the entire materials and the evidence adduced, passed the
judgment under appeal convicting both the accused guilty of the offences
alleged under Section 302/34 of the IPC. The accused persons namely Madan
Panika and Anil Gour were accordingly sentenced to suffer imprisonment for life
and to pay a fine of Rs. 10,000/-, and in default of the payment of fine, to suffer
rigorous imprisonment for three months under Sections 302/34 of the IPC.
4. The learned counsel appearing for the appellants submits that the P.W.-1
and P.W.-2 alleged that the incident took place around 09.00 PM to 09.30 PM on
25.05.2014. However, as per the evidence of P.W.-12 namely the Investigating
Officer, the P.W.-1 lodged the verbal information at 06.20 AM on 26.05.2014
before the Shivastan Police Outpost where the G.D. Entry was made. It is
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submitted that the FIR was lodged after the delay of nine (9) hours whereas the
Outpost is located within 2 to 3 Kms and consequently there is no explanation
as to why such a delay had occurred in filing the FIR.
5. Referring to the statement made before the Police under Section 161, the
learned counsel for the appellants submits that the original statement before the
Police immediately after the lodging of the FIR made by the P.W.- and P.W-2
under Section 161 Cr.P.C, will reveal that these subsequent statements made as
P.W-1 and P.W-2 before the Court during the trial was sufficient improvement in
the statement made by P.W-1 and P.W.-2 as compared to the statements earlier
made under Section 161 Cr.P.C. He therefore submits that the evidence of P.W-1
and P.W.-2 is not wholly reliable to return a finding primarily on their evidence to
arrive at the conclusion for conviction of the accused. He further referred to the
evidence of P.W-1 and P.W.-2 to submit that the behavior of the P.W. -1 and P.W.
-2 appears to be unnatural as immediately after the incident they went to the
house of the neighbour namely one Keria and returned to the place of
occurrence only in the morning. He further submits that the submissions which
were recorded by the Magistrate under 164 of the P.W.-1 and P.W.-2 were not
proved during the trial as is required under the law. It is further submitted that
reading of the evidence reveals that there were some land dispute going on
betweenthe family of the deceased and the accused persons. Therefore, due to
enmity, the deceased and his family members had no good relationship with the
family members of the accused persons. That apart, it also evident from the
evidence adduced that the deceased was a habitual drunkard and used to
create hue and cry. The learned counsel for the appellant also referred to the
evidence adduced by the P.W-5, the Gaonburah as well as the post mortem
report to show that as per the evidence of the Gaonburah, the injury appears to
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have been caused by the handle of an ‘axe’ and the postmortem report reflects
several linear abrasions, bruises in different parts of the bodies, two cut injuries
in the occipital region (back side of the neck), amongst others. According to the
Doctor conducting the post-mortem namely P.W-9, the time of death was over
two (2) days as sign of petrification had started. The learned counsel for the
appellant therefore submits that as per the FIR, the time of the incident is 09.00
to 09.30 PM on 25.05.2014 and the postmortem was conducted on 26.05.2014
at 12.30 PM which is after 27 hours of death. Referring to the evidence of the
Doctor regarding the injury sustained by P.W-1 and P.W.-2 alleged to have been
sustained while trying to prevent the assault on the deceased on 26.05.2014 at
about 09.30 PM. According to the evidence of the doctor, it is submitted that the
age of the injury is about 6 (six) hours. If that be so then it is clear that the
injury sustained on the body of the P.W.-1 and P.W-2 was well after the incident
had occurred. The learned counsel for the appellant further submits that from
the evidence adduced by P.W-12 namely the I.O., the inquest was done by the
Officer-in-Charge, Samaguri Police Station and consequently there is no
evidence to suggest that the inquest was done following the mandate of Section
174 Cr.P.C. The weapon seized were a ‘lathi’ and a ‘rod’ from the place of
occurrence but no ‘axe’ was recovered. He therefore submitted that non-
recovery of the weapon of assault from the place of occurrence and failure to
send it for clinical examination is detrimentalto the prosecution case and that
apart the inquest report is not a part of the paper book. He also refers to the
medical report to submit that the scalp of the deceased was healthy and
thereby there was no injury on the head of the deceased as projected by the
prosecution witnesses. It is submitted that in view of the medical evidence
revealing that there is no injury on the scalp, the evidence adduced by P.W-1
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and P.W-2 is contradictory to the said medical evidence and therefore the same
was wholly unreliable and ought not to have been relied upon by the learned
trial Judge to arrive at the conviction of the appellants. He further submits that
there is no evidence in support of the case projected by the prosecution that the
appellants are also guilty of commission of offences under Section 34. No
evidence was led by the prosecution to show that there was any common
intention between the appellants. In support of his contention, the learned
counsel for the appellant referred to the following Judgments:
1. Sripathi and Ors, Vs. State of Karnataka, reported in (2009) 11 SCC 660;
2. Dinesh and Anr. Vs. State of Haryana, reported in (2015) 17 SCC 804;
3. Sabir Hussain Barbhuya and Ors. Vs. State of Assam, reported in 2018 (1)
GLT 726;
4. Kipa Sero Vs. State of Arunachal Pradesh, reported in 2005 (4) GLT 86; and
5. State of Maharastra Vs. Raju Bhaskar Potphode, reported in (2007) 11 SCC
261.
6. In conclusion, the learned counsel for the appellant submits that the
impugned judgment is required to be interfered with as the learned trial Judge
did not take note of the defective investigation undertaken by the prosecution
as well as the delay in filing the FIR and the absence of sufficient reasons there
for. Further, the inquest as required under Section 174 Cr.P.C., was not exhibited
during the trial. He submits that the police officer is not authorised under
Section 174 to conduct the inquest. He further submits that the case projected
by the prosecution is not supported by the evidence adduced by the Doctor as it
is evident to show that the death had occurred more than 48 hours. No
weapons such as ‘dao or an ‘axe’ was seized and the injury sustained were only
by blunt weapon as is evident from the post-mortem report. The weapons of
Page No.# 7/30assault. as alleged. were not seized and sent for proper examination as is
required under law. He submits that non-seizure of the weapon of assault is a
ground for alteration of punishment under Section 304 (Part-II).
7. Mr. A. Dhar, learned counsel, who is appointed as Amicus Curiae by this
Court in Crl.Appeal (J) No. 50/2020, submits that the actual assault as per the
evidence was stated to have been caused by Joy Sing who is the son of Anil
Gour and Kamala is his wife. However, both Joy Sing and Kamala have
absconded and have not been produced before the trial Judge to face the trial.
From the evidence, there were four persons named who had assaulted the
deceased. Madan Panika [appellant in Crl. Appeal 454/2019] inflicted the blow
on the head of the deceased while Anil Gour [appellant in Crl. Appeal (J)
40/2020] assaulted with a ‘rod’. Joy Sing Gour inserted the ‘lathi’ inside the
mouth of the deceased and Kamala inflicted the blow with a ‘dao’. He therefore
submits that the fatal injuries caused during the assault were perhaps by Joy
Sing and Kamala. However, these two persons have remained as absconder and
have been declared as proclaimed offenders. Therefore, the evidence led by the
prosecution does not support the conclusion that the present accused persons
are responsible for causing death to the deceased.
8. Per contra, Mr. Bankim Sarma, learned Addl. Public Prosecutor opposed
the submissions made by the counsel for the appellant as well as the amicus
curiae. He submits that the evidence of P.W-1 and P.W.-2 has remained
consistent. Therefore, there is no infirmity. P.W.-4 and P.W-5 had seen the
injuries on the back of the head and the chest. The post mortem report
conducted on the next day at 12.30 PM opines that the death occurred within
24 hours and that all the injuries are ante-mortem in nature. That apart, P.W-1
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and P.W-2 who are wife and the daughter of the deceased and their medical
reports are also available in the record. He further submits that contrary to the
contentions of the counsel for the appellant, the G.D entry was made prior to
lodging of the FIR and which is reflected in the judgment impugned in the
present appeal. He therefore submits that there is no infirmity in the impugned
judgment.The evidence has been properly appreciated, the investigation has
been conducted as per procedure and the trial Judge, therefore, delivered the
judgment which does not called for any interference.
In response to the inquest being conducted by the Police Officer, he
submits that the Police Manual permits a police officer to conduct the inquest
and therefore the inquest conducted by the Police Officer cannot be said to be
contrary to the provisions of law.
9. In rejoinder, the learned counsel for the appellant reiterated his
submissions that the evidence adduced by the P.W-2 regarding the accused
Madan Panika, is not supported by any medical evidence of the post-mortem
report. He therefore refers to the evidence of the doctor to submit that the
approximate injuries sustained where within 24 hours and the time of death is
over two (2) days. The learned counsel for the appellant therefore submits that
the prosecution has not been able to prove that the injury sustained by the
deceased besides being caused by the accused persons, led to the death of the
deceased. The contradiction between the case projected by the prosecution and
the evidence adduced before the Court more particularly by the medical doctor
ought to have been taken note of by the trial Judge and the same not having
been done, the same is contrary law and the impugned Judgment should
therefore be interfered with, set aside and quashed and the accused persons be
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set free at liberty.
10. The learned counsel for the parties have been heard. The materials
available in the Trial Court Records, which were called for, have been carefully.
The paper book in both the appeals have been carefully perused.
11. In order to appreciate the arguments made assailing the judgment of
the learned trial Judge, it would be necessary to refer to the evidences adduced
during the trial.
12. The case projected in the FIR by the informant who is the widow of the
deceased victim and P.W-1 is that on 25.05.2014 at around 09.30 PM, the
named accused persons therein, namely (1) Sri Anil Gour S/O Bir Sing Gour, (2)
Sri Joy Sing Gour @ Bala Gour S/O Sri Anil Gour, (3) Sri Madan Panika S/O
Konwar Das Panika and (4) Smti Kamala Gour W/O Sri Anil Gour, had come to
the house of the informant armed with ‘ dao’ and ‘axes’. They dragged the
husband of the informant out of the house, felled him on the ground and killed
him by assaulting him with axe. The accused persons accompanied by the Gaon
Burah (village headman of Siyalkhaiti) had come to their house a few days ago
and said they would buy the plot of their land and forcefully obtained signature
and took possession of two (2) kathas of land. The FIR further stated that when
the informant raised hue and cry, they also assaulted the informant by pressing
her neck and showing her ‘dao’. When the younger daughter of the informant
SmtiHarila Gour begged the accused persons by falling on their feet, they said
that they had come after obtaining permission from the Gaonburah and when
they tried to kill her daughter, she fled from there.
The said FIR was received and registered at the Sibasthan Police Outpost
with G.D. Entry No. 424 dated 26.05.2014 and forwarded the same to Officer-in-
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Charge, Samaguri Police Station for registering the case under the proper
section of law. The case was subsequently received and registered as Samaguri
P.S. Case No. 126/2014 under Sections 302/34 of the IPC. After the I.O. was
assigned, the investigation was commenced in the matter. After due completion
of the investigation, the charge-sheet was submitted and charges under two
heads were framed by the Court of Addl. District and Sessions Judge No. 2,
Nagaon.
13. The prosecution examined as many as 12 witnesses in support of their
case projected.
14. P.W.-1, namely the informant Smti. Bhagyawati Gour, is the widow of
the deceased victim of Late Tankeswar Gour. In her evidence before the Court,
P.W-1 stated that she was the informant who had lodged the case against the
four accused. She identified the present appellants in the Court. Deceased
Tankeswar Gour was her husband. On the date of the incident i.e., 25.05.2014
at 09.00 PM, she was at home along with her husband and two daughters.
Accused Anil Gour is the brother-in-law and Joy Sing is the son of Anil Gour and
Kamala Gour is the wife of Anil Gour. Anil Gour intended to give his daughter in
marriage and had therefore sold the portion of land where the husband of the
P.W-1 i.e. the victim had also put his signature. But instead,the said Anil Gour
had sold the land belonging to the victim’s husband. On the night of the
incident, Anil Gour armed with ‘rod’, Madan armed with ‘axe’, Kamala armed
with ‘dao’ and Joysingh armed with stick came and assaulted the husband of
the P.W-1. Madan assaulted on the head of the husband of the P.W-1 with a
‘axe’, Joysingh inserted the stick inside the mouth of the husband and Kamala
dealt dao blows on his neck. When P.W-1 went to rescue her husband, Madan
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asked her to go away and said he had taken permission from the Gaonburah to
assault her husband. Out of fear P.W-1 fled to the house of Keria and became
senseless there. Her daughters also took shelter in the house of Keria. In the
morning after returning home, she found her husband lying dead in the
courtyard and thereafter she along with her two daughters went to the police
station and lodged the FIR. She identified her signature and deposed that the
FIR was written by one Ali as per her words.
She was cross-examined in details but the evidence adduced by the P.W-1
in her evidence in chief was sustained with very minor inconsistencies. She
maintained that Anil her brother-in-law had forcibly taken signature of her
husband and sold of their portion of the land. She had clearly identified all the
four (4) accused including the present appellants of assaulting her husband with
‘axe’, ‘rod’, ‘dao’ and ‘stick’. She denied suggestions put to her that these facts
were not stated before the Police earlier or that these accused persons did not
come to their house armed with ‘dao’, ‘stick’ and ‘axe’. She also denied the
suggestions that her late husband falsely implicated the accused persons in a
case lodged over land. She stated that just after her husband was assaulted,
she fled away from there after she was threatened by the accused persons that
they would kill her too. She denied the suggestion that she was not an eye
witness to the assault on her husband.
15. P.W.-2, Harila Gour is the daughter of the deceased and the informant.
She also deposed that around 09.00 PM on 25.05.2014 the incident took place
and that she her father, her mother and her younger sister were present. The
four accused persons entered their house and abused their father. In respect of
the sale of land, altercation took place between them. Thereafter Madan, one of
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the accused, informed that he would go to the house on the village headman
and after 3/4 minutes returned and said he had got permission to assault my
father and thereafter dealt with an axe blow on the head of the father. She
deposed that accused Anil beat her father with a rod and Joysingh inserted a
stick inside the mouth of her father and Kamala dealt a dao blow on her father.
She deposed that when her mother went to rescue her father, Joysingh
assaulted her mother too and out of fear, her mother went to the house of
Keria. She and her younger sister were at the house and she gave water to her
father when her father enquired where her mother had gone. She saw blood
coming out from the mouth of the father and her father became silent.
Thereafter, she went to the house of Keria along with her sister and spend the
night in the house of Keria. On the following morning, they came and found her
father lying dead in the courtyard. She then accompanied her mother to the
police station for lodging an FIR. She also deposed that on 28 thof the month,
she had given her statement before the Magistrate.
In her cross-examination, she mentioned that she was a student of Class-
VIII and that from the house of the village headman, their house by the road
will take 5 minutes and if one takes a shortcut, it will take 2/3 minutes. She
deposed that on the date of the incident, her father did not return home in an
intoxicated state. On the date of incident, her father returned home at about
around 4 PM. She stated at except Madan Panika, the others were their relatives
of the accused persons. She stated that on hearing the hue and cry, none of the
neighbour came out. She denied the suggestion that before the Police she did
not state that the accused persons had assaulted her father with axe, dao and
stick. On the date and time of the incident, she was sleeping in the house and
after an hour of the incident leaving her father, she and her sister went to the
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house of Keria and told Keria and his family members about the assault on his
father and also that blood was coming out from the mouth of their father. They
did not take any steps to provide treatment to their father. She stated that one
month prior to the incident, her uncle accompanied by the village headman
came to obtain the signature of her father. The uncle told her father that he
would sell his portion of land and therefore requires signature of his father but
her uncle sold their land which they came to know when they saw group of
people belonging to the Muslim community tilling their land and on being asked
the person replied that their uncle had sold the land to him. When her father
questioned her uncle about the same, the quarrel took place. She denied the
suggestion that the accused persons did not enter their house armed with ‘dao’,
‘stick’, and ‘axe’ and assaulted their father. She denied the suggestion that the
accused persons did not assault their father to death. It is not a fact that she
denied the suggestion that she had falsely implicated the accused persons. She
maintained her deposition that her father was dragged to the courtyard from
inside the house and was assaulted there and they were asked not to raise any
hue and cry and therefore they did not do the same. She further deposed that
the accused persons assaulted her mother when she went to rescue her father.
16. P.W.-3 is a co-villager who deposed that he knows the accused persons
and that the incident took place about three (3) years ago. He after being
informed about the incident, he went to the place of occurrence and saw the
dead body of Tankeswar Gour. He did not know who had killed him and on
being asked by the police, he took the dead body for post-mortem examination.
In his cross-examination, he stated that he did not know how Tankeswar
Gour had died. His house is about 1 Km away from the place of occurrence and
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he did not see the incident. Around 8 AM on the following morning, on being
called by the police, he went there and the police examined him.
17. P.W-4 is the relative of Anil Gour. He also knows both the accused
persons. He deposed that the incident took place about three (3) years ago and
they used to quarrel frequently. The accused Anil Gour is his uncle and the
deceased was his second uncle. On the following morning after the incident on
receipt of information, he went there and police also arrived. There he came to
know that his uncle Anil Gour had killed second uncle (namely deceased
Tankeswar Gour). He deposed that he did not witness the incident of murder.
However, he admitted that there was a dispute between them over landed
property. He saw injury on the back of the head and on the chest. He saw cut
injuries on the head and marks of injury in his chest and legs. As requested by
the police, he took the dead body for holding post-mortem examination.
In his cross examination, he stated that he did not witness the victim
being assaulted. It is only on 08.00 AM the following morning, he went to the
place of occurrence.
18. P.W-5 is Lalit Chandra Binjuwar who is the village headman. He
deposed that the incident took place in May or June, 2016 and he knew the
complainant and the accused. On the following morning of the incident, he
heard somebody had killed Tankeswar. He went there and saw the dead body
lying in the courtyard of the deceased house. He saw injuries on the head of the
dead body which seem to have been caused with the handle of an axe. He
informed the police and the police came thereafter. He deposed that he did not
know who killed the deceased. He also deposed that he did not know what the
police had seized as the seized materials were not shown to him.
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In his cross-examination, he stated that his house is about ½ KM away
from the deceased house. He stated that there are four other houses of near
the house of the deceased. Except these four houses, there is no other house
situated nearby. He came to be informed of the incident at about 5 AM on the
next day and accordingly accompanied that person to the place. He reached the
place of occurrence in 5 minutes. He stated that there was no human habitat
but bamboo grove in the direction he proceeded. He did not lodge the FIR and
at about 09.00 AM, the dead body was taken away by the police from the place
of occurrence. He had put his signature on the seizure memo at the place of
occurrence as the police had asked him to put his signature as a witness.
19. P.W.-6 is Lakshan Binjuwar, who knew the complainant and the accused
persons. He went to the incident later after the date of the incident. He saw the
police who enquired and he informed the police about his name. He saw the
deceased lying in the courtyard from a distance. He did not know how the
deceased died. He is a seizure witness and had put his signature on the seizure
list.
During his cross examination, he stated that his house is about 1½ KM
away from the place of occurrence and he did not remember the names of the
person he had come across on the way. He also did not know the contents of
the Exhibit -2 since he did not read it but he had put his signature on being
asked by the police to do so.
20. P.W.-7 is Tularam Binjuwar who also stated that he knew both the
accused and the deceased persons. He deposed that the house of the accused
persons is situated about 2 KMs from his house. On the date of the occurrence
along with other people, he also went to the place of occurrence and found that
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the deceased lying in the courtyard of his house. He saw it from a distance and
he heard that Anil Gour had killed Tankeswar Gour. He did not know the object
used in the assault.
In his cross examination, he stated that he went to the place of
occurrence at about 09.00 AM. When the police had arrived, he had left the
place of occurrence. He could not recollect from whom he had heard that Anil
had killed Tankeswar. He denied the suggestion that he did not hear from others
that Anil had killed Tankeswar.
21. P.W.-8, Binay Gor deposed that he knew the complainant as well as the
accused duo. His house is situated at the distance of 300 metres from that of
the complainant. He did not know the occurrence which happened in the night
but in the morning, he went to the house of the complainant and saw the police
was preparing to take away the dead body for post-mortem examination. He
saw the dead body at a distance and he did not know who killed the deceased.
On being asked by the Gaonburah, Paresh and Radheshyam and he had
accompanied the dead body while it was taken for post-mortem examination.
In his cross examination, he stated that he went to the place of
occurrence after arrival of police. There were three houses of Konwardas
Panikar, Parashuram Gour and Durgeswar Gour situated near the house of the
deceased. Ajit Kumar De’s house is situated next to the bamboo grove standing
nearby.
22. Dr. Lakshman Prasad Sarma is the P.W.-9 who was at the relevant point
in time working as the Sr. Medical and Health Officer-I in the Civil Hospital,
Nagaon and who had examined the dead body. In his deposition, he stated that
upon examination he found the following:
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“External appearance: An average built made dead body aged about 45 yrs seen
with multiple linear abrasion, bruises, in different part of the body/lathi marks/rigor
mortis present. Skin at abdominal region.
Cranium and Spinal Canal: Scalp hematoma in occipital area. 2 nos. of cut injury
in the occipital region. Membrana-ruptured. Brain and spinal cord full of bold in
cranium in spaces.
Thorax-Sternum fractured. Blood in plural cavity. Injured collapsed.
Abdomen: Peritoneum-blood present.
Muscles, bones and Joints: (i) Scalp- hematoma in occipital region
(ii) Fracture seen at sternum.
More detailed description of injury or disease:
All the injuries are ante mortem in nature. Approximate time of injury within 24
hours.
Time of death- over 2 days (48 hours) as sign of petrification on body started.
Opinion: In my opinion the case of death is due to shock & haemorrhage as a
result of sustaining injury of body and head.”
In his cross-examination, he stated that lacerated injury can be cause by
blunt object and there is a possibility of getting such type of wounds by falling
on the ground.
23. P.W.-10 is Dr. Hemanta Kr. Bora, who is also working a Medical and
Health Officer-I at Samaguri Public Health Centre. He was a doctor who
examined the complainant as well as the daughter of complainant and the
victim. In his evidence, he deposed as under:
“On 26-05-14 I was on duty as M & H. O-I. On that day I examined,
Bhagyabati Gour, W/o Tankeswar Gour, R/o Sialkhaiti under Samaguri P.S. on being
escorted and identified by Jugen Baruah, vide Samaguri GDE No. 414 dtd. 26-05-
14.
On examination I found – tenderness in chest, back, left temporal part and left
arm caused by blund object.
Ext.4 is my report and Ext.4(1) is my signature.
On the same day I also examined Harela Gour, D/o Tankeswar Gour of the
same case as mentioned above.
On examination I found abrasion and tenderness at left knee joint, size 1″ x
½” and abrasion in right forearm, size 1″ x 1 ½”.
The age of the injuries are less than 6 hours caused by blunt object.
Injuries are simple in nature.
Page No.# 18/30
Ext.5 is my report and Ext.5(1) is my signature.”
In his cross-examination, he deposed that abrasion injury may by caused
by falling on the ground and that he did not mention the age of the injured.
24. P.W-11, PutuliPanikar, was examined and he knew the complainant and
the accused persons as they are fellow villagers. She deposed that the deceased
Tankeswer Gour used to consume liquor regularly and create a nuisance. In the
following morning of the incident, she heard accused Anil Gour had killed
Tankeswar but she did not go to the place of occurrence. She heard the issue
was of a landed property and a fight took place in their house. Accused Madan
is her son and on being asked by the police, she called Madan. The house of
the deceased and their house are situated adjacently and that she was
questioned by the police on the following day of the incident.
In her cross examination, she stated that the deceased’s wife and her
four daughters were in their house. Anil Gour stays in a separate house. On the
date of occurrence, Anil Gour was in the house situated in the field which is his
main house. The house of Uma, sister of Anil Gour is situated near the house of
the accused-Anil. Tankeswar Gour (deceased) regularly consumes liquor and
creates nuisance. She did not come out when she heard the ruckus. On the date
of the occurrence, it was raining from 6/7 PM and therefore she did not know
for how long the quarrel lasted. She stated that earlier too quarrel used to take
place among the brothers for their share over land. She was informed by the
Gaonburah that her son has been entangled in this case. She stated that on the
night of the incident, her son was asleep in her house. On the day the police
took away the dead body, she was questioned. She denied the suggestion that
Anil Gour did not kill the deceased Tankeswar Gour. She also did not deny the
Page No.# 19/30
suggestion that it is not a fact that nobody told her that Anil Gour had killed
Tankeswar Gour.
25. P.W.-12 is Jogen Baruah, who at the relevant point in time was the in-
charge of Shivastan Police Outpost. On 26.05.2014, the complainant lodged an
ejahar which was received and a GD Entry vide GDE No. 424 dated 26.05.2014
was recorded and the ejahar was forwarded to Samaguri P.S. for registration of
the case. Prior to lodging of the ejahar, at about 6.20 AM, the complainant
verbally informed that Tankeswar was murdered. On the basis of the G.D. Entry,
the P.W-12 went to the house of the informant and found her husband lying
dead in the courtyard. He informed the C.O. (Samaguri) and Officer-in-Charge
of Samaguri Police Station to get the post-mortem examination of the dead
body. The Officer-in-Charge of Samaguri Police Station held that the inquest of
the dead body and sent it to the Civil Hospital for post mortem examination. He
recorded the statements of the witnesses. He also seized of the lathi and a rod
in the presence of the witnesses. Having found the accused involved in the case
near the house of the complainant, he brought them to the police station. He
drew the sketch map of the incident with his signature and identified his
signature thereon. After concluding the investigation, he handed over the case
diary to the Officer-in-Charge of the Police Station and submitted charge-sheet
on the basis of his investigation. He identified the charge-sheet as well as the
signature of the Officer-in-Charge with which he deposed that he was familiar
with.
During cross-examination, he stated that at 6.30 AM on 26.05.14, the
complainant orally informed her about the incident but he did not obtain her
signature. The written ejahar was lodged at about 10 PM on the following day.
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Subsequent to the receipt of the ejahar, the Officer-in-Charge of Samaguri Police
Station asked him to investigate the case. He stated that the Officer-in-Charge
of Samaguri Police Station did not give him written permission to investigate the
case before lodging on the FIR. He stated that the place of occurrence is about
10 KM away from Samaguri Police Station and he went to the place of
occurrence which took in 15/20 minutes to reach on his motorbike. There are
about 7/8 houses near the place of occurrence. He met the Gaonburah at the
place of occurrence, whose name is Lalit Binjuwar (P.W-5). The house of Naresh
Gowala and with witness Radheshyam Gour is at Sialmati. All the witnesses are
from Sialmati. The complainant said that her husband came home last night
under influence of alcohol and that she was in the house with two daughters
and the two daughters had taken meal. The complainant stated that her
husband was preparing roti/chappati and at that time Anil Gour came with an
axe to assault her husband and assaulted him and that she along with her two
daughter stook shelter in the house of Kartik Ram for the night and that in the
following morning she came and found her husband lying dead. The house of
Kartik Ram is about ½ furlong away from the house of the complainant. Witness
Hatila (P.W-2) had stated before the P.W-12 that she was sleeping after taking
meal on that night and that having heard the hue and cry, she came out and
saw Madan Panika, Bhola Panika and Anil Gour with axe in their hands coming
to assault and that out of fear her mother entered the house and they assaulted
her father. When the accused persons had attempted to assault her, she fled
away. Blood came out through the mouth of her father when he was assaulted
and that on the following day he found her father lying dead. P.W.-12 collected
the two (2) seized articles from the place of occurrence. He stated that there
was frequent quarrel between the parties with regard to landed properties.
Page No.# 21/30
26. The accused persons were also examined under Section 313 Cr.P.C.
The case projected on behalf of the accused bestowed as a case of total denial
as is evident from the answers given to the said 313.
27. The learned trial Judge framed the following question for
determination:
“Whether the accused persons on 25.05.14 at 09.30 pm in furtherance of
common intention committed did commit murder by intentionally causing the death
of Tankeswar Gour and thereby committed an offence punishable under Sections
302/34 of IPC?”
28. The learned trial Judge relied primarily on the testimony of P.W.1 and
P.W.-2 as well as the statement made by P.W.-2 under Section 164 Cr.P.C. to
come to a conclusion that the testimony were found to be corroborative of each
other with some minor discrepancies which does not shake the credibility of the
prosecution version projected before the trial Court.
29. P.W.-1 and P.W.-2 are both eye witnesses and are therefore, primary
witnesses who support the case of the prosecution. Their testimonies have not
been shaken during the cross-examination except for some minor discrepancies.
P.W.-1 and P.W-2 had, in their testimony, stated that they had seen all the four
(4) accused entering their house dragging their husband and father respectively
to the courtyard and assaulting them with axe, dao and lathi. Both P.W-1 and
P.W-2 corroborate each other testimony that when P.W.-1 tried to prevent the
assault, she was threatened and also subjected to assault by the accused
persons because of which she sustained injuries. P.W.-2 also in her testimony
clearly stated that she had seen the accused persons assault her father and that
blood was coming out of his mouth and subsequently he felt silent. Because she
Page No.# 22/30
was intimidated by the accused persons, she along with her younger sister and
mother went and took refuge in one of the neighbour houses. The testimony of
P.W.-1 and P.W.-2 as eye witnesses that the accused persons had entered the
house of the deceased has remained unshaken.
30. The post-mortem report conducted on the deceased reflects bruises,
ecchymosis in different parts of the body/lathi marks/ rigor mortis are present.
Hematoma in the occipital area along with two (2) numbers of cut injuries
lacerated are noted on the scalp although the scalp and the vertebrae are found
to be healthy. The membrane however, was found “ruptured”. The brain and the
spinal cord were found to be congested full of blood in the cranium in spaces. In
so far as the Thorax is concerned, the following injuries were noticed:
“1. Walls ribs and cartilages: Sternum fractured
2. Pleurae: Blood in pleural cavity
3. Larynx and trachea:
Injured. Collapsed.
4. Right lung:
5. Left lung: Congested
6. Pericardium:
Healthy
7. Heart:
8. Vessels: Full of blood.”
In so far as the abdomen is concerned, the following is the report seen in
the post-mortem:
1. Walls : Healthy
2. Peritoneum : Blood present
3. Mouth, pharyanx, oesophagus :Congested healthy
4. Stomach and its contents : Food particles
5. Small intestine and its contents :
Gaseous material
6. Large intestine and its contents :
7. Liver :
8. Spleen :
9. Kidneys : Healthy congested
Page No.# 23/30
10. Bladder :
11. Organs of generation external and internal :
31. The evidence of the medical doctor who conducted the post-mortem,
namely P.W.-9 supports the findings in the post-mortem report. His opinion into
the cause of death is very clear that it is due to ” shock & haemorrhage as a
result of sustained injury of body & head”.
In his cross-examination, he had stated that lacerated injury can be
cause by blunt object and that there are possibilities of getting such type of
wounds by falling on the ground.
32. Taking into consideration the evidence of P.W.-1 and P.W.-2 read with the
evidence of the doctor conducting the post-mortem report namely P.W.-9, it is
evident that the deceased died due to shock and haemorrhage due to the
injuries sustained. The injuries reflected in the post-mortem report appears to
be sufficient to cause death to an ordinary person. Although during the trial, the
defence tried to shake the evidence of the doctor, P.W-9 who conducted the
post-mortem report to suggest that these injuries could be caused by blunt
object and that there is a possibility that such type of injuries can happen by
falling on the ground. The fact remains that there is no evidence to suggest that
the defence has not been able to shake the evidence projected by the eye
witnesses. However, the evidence of the eye witnesses that the accused persons
had assaulted the deceased has not been shaken. The nature of the assault as
is evident from the testimony of P.W-1 and P.W.-2 are sufficient cause the
injuries which are reflected in the post-mortem report and this fact has
remained unshaken inspite of the attempt made by the defence to suggest that
such injuries can be caused by blunt object or also by falling on the ground. In
the statement made by the P.W.-2under section 164 Cr.P.C., she had clearly
Page No.# 24/30
implicated all the four (4) accused that they were armed with ‘dao’, ‘lathi’ and
‘axe’ and assaulted their father. This statement under section 164 Cr.P.C. largely
corroborates with her testimony made during the trial.
33. In Abdul Sayeed Vs. State of Madhya Pradesh & Ors, reported in (2010)
10 SCC 259, the apex Court held that special evidentiary value is required to be
given to the testimony of the witness who was himself injured in the incident. It
is held that where a witness to the occurrence has been injured in the incident,
the testimony of such a witness is generally considered to be very reliable, as he
is a witness that 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. Referring to earlier precedents, the apex Court held that
“Convincing evidence is required to discredit an injured witness.” The apex Court
held that the testimony of the injured witness is to be accorded a special status
in law. The injury to the witness becomes an inbuilt guarantee of his presence
at the scene of the crime and because the witness will not want to let his actual
assailant go unpunished merely to falsely implicate a third party for the
commission of the offence. The apex Court went on to hold that where the eye
witnesses’ account is found credible and trustworthy, a medical opinion pointing
to alternative possibilities cannot be accepted as conclusive. The eye witnesses’
account requires a careful independent assessment and evaluation for its
credibility, which should not be adversely prejudiced on the basis of any other
evidence, including medical evidence, as the sole touchstone for the test of such
credibility.
34. In Solanki Chimanbhai Ukabhai Vs. State of Gujarat, reported in (1983) 2
SCC 174, the apex Court held that ordinarily, the value of medical evidence is
Page No.# 25/30
only corroborative. It proves that the injuries could have been caused in the
manner alleged and nothing more. The use which the defence can make of the
medical evidence is to prove that the injuries could not possibly have been
caused in the manner alleged and thereby discredit the eye-witnesses. Unless,
however the medical evidence, in its turn, goes so far that it completely rules
out all possibilities whatsoever of injuries taking place in the manner alleged by
eye witnesses, the testimony of the eye-witnesses cannot be thrown out on the
ground of alleged inconsistency between it and the medical evidence. It was
held that the position of law is that in cases where there is a contradiction
between medical evidence and ocular evidence, it can be crystallised to the
effect that though the ocular testimony of the witness has greater evidentiary
value vis-à-vis medical evidence, and when medical evidence makes ocular
testimony improbable, that becomes a relevant factor for the process of
evaluation of evidence.
35. Coming to the facts of this case as have been discussed above, the
testimony of P.W-1 and P.W-2 who are eye witnesses corroborate each other
with very minor contradictions. Similarly, the statement given immediately after
the investigations were initiated by P.W.-2 under Section 164 as well as the
evidence given by P.W.-2 during the trial is largely corroborative with very minor
contradictions. The defence has not been able to shake the evidence given by
the P.W.-1 and P.W.-2. The projection sought to be made by the defence
referring to the possibility of the injuries suffered by the victim by blunt objects
or by falling on the ground cannot rule out the ocular testimony of the
witnesses P.W.1 and P.W.-2. The defence has not able to lay before the trial
Court or draw inference from the medical evidence that the testimony of the
ocular witnesses namely P.W.-1 and P.W.-2 in respect of the assault by the
Page No.# 26/30
accused appellants on the deceased could not under any circumstances have led
to the injuries sustained and as reflected in the post-mortem report. This
attempt although made by the defence cannot be sustained as the injuries
sustained by the deceased as is evident from the post-mortem report, are
capable of being received due to assault inflicted by the accused persons as per
the testimony of P.W.-1 and P.W.-2.
36. Under such circumstances, the attempt made by the defence to shake the
credibility of the prosecution case that the injuries sustained by the deceased
were not from the assault cannot be accepted and will have to be overruled.
37. Under such circumstances as have been held by the Apex Court, since the
testimony of the ocular witnesses namely P.W.1 and P.W.-2 could not be shaken
during the evidence, there is no infirmity seen by the trial Court arriving at a
conclusion of conviction of the accused persons largely based on the testimony
of P.W.-1 and P.W.-2.
38. In so far as the arguments of the counsel for the defence is concerned
that the conviction could not have been sustained under Section 34 of the IPC
as there was no common intention is also required to be discredited inasmuch
as from the evidences of the several witnesses besides the ocular witnesses of
P.W.-1 and P.W.-2, it is evident from the testimony of the witnesses that there
was a land dispute between the accused persons and the victim as is evident
from the testimony of the several witnesses.
39. As has been discussed above, this is not a case of fights between two
groups of people or even mob violence. The testimony of the eye witnesses
along with other witnesses clearly reveal that there was a land dispute between
the accused persons and the deceased and as per the testimony of the eye
Page No.# 27/30
witnesses namely P.W.-1 and P.W.-2, all the four (4) accused persons entered
together into the compound and started assaulting the deceased person and
also assaulted the P.W.-1 and P.W.-2. There is a vivid description of the accused
persons who had assaulted the deceased with specific object like ‘lathi’, ‘dao’
and ‘axe’. The injuries sustained on the body of the victim reveals that there
were several injuries inflicted on the body of the deceased including the
sternum of the victim. As such, it is not a case of sudden assault at the hit of
the moment leading to the death of the victim. There were repeated assaults on
the victim leading to several injuries on his scalp, his sternum, chest and other
parts of the body leading to subsequent death of the deceased. The post
mortem report clearly reveals that the death occurred due to shock and
haemorrhage suffered due to the injuries sustained by the accused persons and
which are ante mortem in nature. As such, the case sought to be projected by
the defence that there was no common intention amongst the accused cannot
be accepted and therefore the said submissions are also rejected.
40. Coming to the further objection of the counsel for the defence that the
inquest was not conducted as per the provisions of the Cr.P.C. and that the
same was conducted by the police officer and therefore not sustainable also is
not accepted in view of the fact that the Assam Police Manual permits the
recording of inquest by police officer.
41. Under such circumstances, the investigating authority ordinarily follows the
requirement as prescribed under the police manual during the course of
investigation. Even if the said contention of the defence counsel is accepted,
that by itself will not make the investigation fatal as taking into account the
evidence adduced during the trial, it is seen that during investigation, the
Page No.# 28/30
prosecution had undertaken the investigation largely in terms of the procedure
prescribed.
42. In Pedda Narayana and Ors Vs. State of Andhra Pradesh , reported in
(1975) 4 SCC 153, the Apex Court held that the proceedings under Section 174
Cr.P.C is a very limited scope. The object of the proceedings is merely to
ascertain whether a person has died under suspicious circumstances or an
unnatural death and if so, what is the apparent cause of the death. The
question regarding the details as to how the deceased was assaulted or who
assaulted him or under what circumstances he was assaulted is foreign to the
ambit and scope of the proceedings under Section 174. Neither in practice nor
in law was it necessary for the police to have mentioned these details in the
inquest report.
43. A perusal of Section 174(1) Cr.P.C. reveals that where the Officer-in-charge
of a Police Station or some other police officer specially empowered by the State
Government receives information that the person has committed suicide or has
been killed by another or by animal or by machinery or by accident or as died
under circumstances raising reasonable suspicion that some other person has
committed an offence, he shall immediately give intimation thereof to the
nearest Executive Magistrate empowered to hold inquest and unless otherwise
directed by any Rule prescribed by the State Government or by general or
special order of the district or Sub-Divisional Magistrate shall proceed to the
place where the body of the deceased person is located and thereafter in the
presence of two or more respectable inhabitants of the neighbourhood shall
make an investigation drop a report of the apparent cause of death describing
such wound, fractures, bruises and other marks of injury as may be found in the
Page No.# 29/30
body stating in what manner or by what weapon or instrument such marks
appeared to be inflicted.
A perusal of the said Section reveals that although it is the empowered
Magistrate who is to conduct the inquest, however, the same is subject to such
Rule or order as may be issued by the competent authority from time to time.
Under the Assam Police Manual, a Police Officer as prescribed thereunder is
empowered to undertake inquest and therefore it cannot be held that the
inquest conducted by the Police Officer is contrary to the provisions of Section
174 Cr.P.C.
44. From a perusal of the judgment under appeal, it is evident that this
argument was never addressed before the learned trial Judge. Be that as it may,
since this is an appellate Court and the arguments made is entirely a question of
law, this Court considers it necessary to address this issue. From the evidence of
P.W.-12, it is seen that the inquest was undertaken by the Officer-in-Charge of
the Samaguri Police Station which had registered the FIR. The said Officer-in-
Charge was not a part of the witnesses presented before the Court during the
trial. As discussed, no prayer was made or arguments were made before the
trial Court questioning the correctness of the inquest report.
Under such circumstances, in the absence of the testimony of the Officer
conducting the inquest report and read with the testimony of the P.W.-12 that
the inquest report was conducted by the Officer-in-Charge of Samaguri Police
Station, which is permitted under the Assam Police Manual, the objection raised
that the inquest conducted is contrary to the provisions of Section 174Cr.P.C.,
has to be rejected.
In any view of the matter, there is no other objection in respect of the
Page No.# 30/30
inquest report that it contains information which is prima faciecontrary to the
evidence adduced by the ocular witnesses namely P.W.-1 and P.W.-2.
45. In view of the discussions above, the judgments referred to the by the
learned counsel for the appellants are not applicable to the facts and
circumstances of the present appeals and therefore, the appellate Court does
not consider it necessary to refer to the said judgments.
46. Under such circumstances, this Court is of the view that there is no
infirmity in the judgment rendered by the learned trial Judge in Sessions T(1)
Case No. 18(N)/2016 or in the appreciation of the evidence as adduced. Both
the appeals therefore fail and the same are dismissed.
47. The Registry will ensure that the remuneration due to the learned Amicus
Curiae is released to Shri A. Dhar, Advocate, who was appointed as Amicus
Curiae in this matter.
48. The trial Court records be remitted back.
49. Let a free copy of this judgment and order be provided to the appellants.
JUDGE
Comparing Assistant