Harilal Malpaharia Vs. State of Assam - Court Judgment

SooperKanoon Citationsooperkanoon.com/1181898
CourtGuwahati High Court
Decided OnNov-26-2015
Case NumberCrl.A(J) No. 41 of 2015
JudgeA.K. Goswami &Amp; The Honourable Mrs. Justice Rumi Kumari Phukan
AppellantHarilal Malpaharia
RespondentState of Assam
Excerpt:
order (oral) a.k. goswami, j. 1. heard mr. k. lahkar, learned amicus curiae appearing for the appellant. also heard mr. k.a. mazumder, learned additional public prosecutor, assam. 2. this appeal from jail is presented against the judgment dated 10.03.2015 passed by the learned additional sessions judge (ftc), lakhimpur, in sessions case no.126(nl)/2014, corresponding to g.r. case no.783/2014, arising out of n.l. police station case no.413/2014 under section 302 ipc. by the impugned judgment, the appellant is convicted under section 302 ipc and sentenced to suffer rigorous imprisonment for life with a fine of rs.15,000/-, in default of payment of fine, to undergo further rigorous imprisonment for 6(six) months. 3. at about 9.25 p.m. on 03.05.2014, one anaru malpaharia came to the silonibari out post and informed by submitting an ejahar that around 7.30 p.m. on that day, harilal malpaharia, a resident of the same line where the informant was also residing, killed his wife, sukurmoni malpaharia, by hitting her in the head with an iron hammer. a general diary entry (ext-7) being g.d.e. no.53 dated 03.05.2014 was recorded and the same was sent to the officer-in-charge, north lakhimpur police station for registering a case, wherein, the ejahar (ext-1) was registered as n.l. p.s. case no.413/2014 under section 302 ipc. 4. after completion of investigation, police submitted charge-sheet against the accused-appellant under section 302 ipc. the case being exclusively triable by the court of sessions, the same was committed by the committal magistrate vide order dated 24.07.2014 to the court of sessions judge, north lakhimpur and on transfer for disposal to the court of learned additional sessions judge (ftc), lakhimpur, sessions case no.126(nl)/2014 was registered. charge being read over, the accused pleaded not guilty and claimed to be tried. 5. during trial, prosecution examined 9 witnesses. apart from exhibiting the ejahar and the g.d. entry, the prosecution also exhibited the inquest report, seizure list by which a hammer was seized, post-mortem report, sketch map, charge-sheet as ext-2, ext-3, ext-4, ext-5 and ext-6, respectively. defence adduced no evidence. the plea taken by the appellant was of denial. 6. the learned trial court based its order of conviction on circumstantial evidence. 7. mr. lahkar, learned amicus curiae has submitted that the learned trial court was manifestly wrong in concluding that the prosecution was able to prove the offence against the accused beyond all reasonable doubts and that the circumstances emanating from the evidence on record formed a chain so complete that there was no escape from the conclusion that within all human probability, the crime was committed by the accused and none else and that other circumstantial evidence are also inconsistent with the innocence of the accused. another submission advanced by mr. lahkar is that there are contradictions in the evidence of prosecution witnesses. in a case, which rests on circumstantial evidence, prosecution has to prove motive for the crime and in the instant case, prosecution failed to prove motive for the crime allegedly committed by the appellant, he submits. his further submission is that the weapon of offence, namely, the iron hammer was not sent with the finger print of the appellant for forensic science examination and as such there was no proof that the hammer was used by the appellant. he has also submitted that ejahar was lodged by pw-1 on the basis of information received by him from his nephew pabin over telephone and non-examination of pabin is fatal to the prosecution case. 8. mr. k.a. mazumder, learned additional public prosecutor, on the other hand, has submitted that materials on record abundantly demonstrate culpability of the appellant in the commission of the crime and the learned trial court was correct, in view of the circumstances appearing against the accused-appellant, to convict the accused-appellant under section 302 ipc. mr. mazumder has submitted that non-examination of pabin in the attending facts and circumstances of the case, will have no bearing. 9. it is also submitted that absence of forensic science examination will not help the accused in any manner in view of the overwhelming materials against the appellant. motive may be a relevant factor, but merely because no motive was proved, will not entitle the appellant the benefit of doubt when the circumstantial evidence unerringly established the guilt of the accused, he contends. 10. we have considered the submissions of the learned counsel for the parties and have examined the evidence on record. 11. the ejahar was lodged by pw-1, who, as it appears, is a related brother of the accused. he is a witness in ext-2. he had stated in his evidence that his nephew pabin had informed him about the incident over phone and on receiving the information, he went to the place of occurrence and found his sister-in-law lying on a bed in the house and that the accused was kept confined by his co-villagers. in his cross-examination, he had deposed that he had not earlier heard about any quarrel between the accused and his deceased wife. 12. pw-2 is a reported witness and he also found, on going to the place of occurrence, the deceased lying dead on the bed. 13. the evidence of pw-3 is that she lives in the same line in the garden (an expression used in a tea garden) where the accused resides and that their houses are contiguous. in her evidence she had stated that as there was a commotion inside the house of the accused at night, she had called the neighbours and on going there, found the door of the house of the accused locked from inside. when asked to open the door, the accused opened the door and on going inside, she found that the deceased had already died and that accused was inside the house alone. they called the garden chowkidar and after confining the accused, handed him over to the police. 14. pw-4 also deposed that on hearing the hue and cry of the deceased, pw-3 called them and then they all went to the house of the accused. the deceased had already died when they reached there. they saw the accused in the house, who had tried to escape on seeing them, whereupon the villagers caught hold of him and informed the garden manager. 15. pw-5 had also reached the place of occurrence at night and he is a witness in ext-2 and ext-3. 16. pw-6 is another witness who had gone to the house of the accused hearing commotion. he found sukurmoni lying dead inside the house and the accused standing with a hammer in hand, which he dropped seeing the public. he is also witness in ext-3. 17. pw-7 is a nephew of the accused and he also happened to go to the house of the accused at night following the commotion. 18. pw-8 is the doctor who conducted the post-mortem examination and he exhibited the same as ext-4. in his evidence, he described the injuries as follows: on examination, i found laceration over left parietal area of head, size 6 cm x 1 cm x 1 cm. there was also contusion over left supra scapular area, size 7 cm x 1 cm. i also found fracture of left parietal bone and separation of left fronto parietal bone junction. i also found blood stain over left parietal area with sub-dural hematoma with approximately 32 ml of blood collection. there was also contusion over left parietal lobe of brain, size 2 cm x 2 cm x 2 cm. there was another contusion over left shoulder. the injuries were ante-mortem in nature. in my opinion, the deceased died due to head injury. in his cross-examination, he had stated that such type of head injury could be sustained if a person had fallen on hard substance from a higher place. 19. pw-9 deposed regarding the steps that he had taken during the course of investigation. in his cross-examination, he had stated that pw-3 did not tell him that having seen the incident, she had called in the garden chowkidar and the police and handed over the accused to the police after tying him up. he also stated that pw-4 did not tell him that she had seen the accused inside the house and that the accused had tried to run away. through cross-examination of pw-9, the defence could establish that pw-5 did not tell him that on his arrival at the place of occurrence, he had found the accused tied-up and that as people gathered, the accused had dropped the hammer. 20. in his statement under section 313 crpc, the appellant had admitted that he had been sleeping inside the house alone. however, he stated that he had not committed any crime. he also stated that he could not say how or why the deceased raised the commotion. 21. there is no cross-examination of pw-9 with regard to the deposition of pw-3 that the door of the house of the accused was locked from inside and that the accused had opened the door when demanded by the people and that the accused was alone inside the room. thus, the evidence of pw-3 on the most crucial aspects of the case has remained unimpeached. pw-9 was also not cross-examined with regard to the deposition of pw-4 that as she went inside the house of the accused, she saw the accused standing there with a hammer in hand. pw-4 of course, it was stated that by pw-9, did not tell him that she had seen the accused inside the house. but in our considered opinion, the same will not have any impact on the prosecution case as the appellant had admitted that he was inside the house. it is clear from the evidence on record that the accused and the deceased were the only two persons inside the house as the evidence has ruled out presence of any third person and that the door of the house was locked from inside. there was a commotion in the house of the accused prompting neighbours to gather and they demanded the accused to open the door. the door was opened by the accused and the witnesses saw the dead body of the wife of the accused lying in the bed. the injuries sustained by the deceased are consistent with blows of a hammer, which was also seized. merely because the hammer and the finger print of the accused were not sent for forensic science examination, we are of the considered opinion that in the facts and circumstances of this case, the same will not dent the prosecution case. independent witnesses had testified against the accused and there was no suggestion that the witnesses were inimical to the accused. as such, there is no reason to disbelieve their testimony. 22. it is true that in a case resting on circumstantial evidence, motive plays a significant role. however, it is also equally well settled that if there are circumstances which would lead to the only conclusion that it was the accused alone and none else who committed the murder, then the motive becomes immaterial. 23. we are of the opinion that the facts established is consistent with the hypothesis of the guilt of the accused and the chain of evidence is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. therefore, it cannot be said that for failure to establish motive, the substratum of the prosecution case had fallen apart. we also find substance in the argument of mr. mazumder that having regard to the evidence on record, non-examination of pabin will not derail the prosecution case. 24. taking that view, we do not find any merit in this appeal and accordingly, the same is dismissed. 25. for the assistance rendered, mr. k. lahkar, learned amicus curiae will be entitled to a fee of rs.7,500/- to be paid by the assam state legal services authority. 26. registry will send back the records.
Judgment:

Order (Oral)

A.K. Goswami, J.

1. Heard Mr. K. Lahkar, learned Amicus Curiae appearing for the appellant. Also heard Mr. K.A. Mazumder, learned Additional Public Prosecutor, Assam.

2. This appeal from jail is presented against the judgment dated 10.03.2015 passed by the learned Additional Sessions Judge (FTC), Lakhimpur, in Sessions Case No.126(NL)/2014, corresponding to G.R. Case No.783/2014, arising out of N.L. Police Station Case No.413/2014 under Section 302 IPC. By the impugned judgment, the appellant is convicted under Section 302 IPC and sentenced to suffer rigorous imprisonment for life with a fine of Rs.15,000/-, in default of payment of fine, to undergo further rigorous imprisonment for 6(six) months.

3. At about 9.25 P.M. on 03.05.2014, one Anaru Malpaharia came to the Silonibari Out Post and informed by submitting an ejahar that around 7.30 P.M. on that day, Harilal Malpaharia, a resident of the same line where the informant was also residing, killed his wife, Sukurmoni Malpaharia, by hitting her in the head with an iron hammer. A General Diary Entry (Ext-7) being G.D.E. No.53 dated 03.05.2014 was recorded and the same was sent to the Officer-in-Charge, North Lakhimpur Police Station for registering a case, wherein, the ejahar (Ext-1) was registered as N.L. P.S. Case No.413/2014 under Section 302 IPC.

4. After completion of investigation, police submitted charge-sheet against the accused-appellant under Section 302 IPC. The case being exclusively triable by the Court of Sessions, the same was committed by the Committal Magistrate vide order dated 24.07.2014 to the Court of Sessions Judge, North Lakhimpur and on transfer for disposal to the Court of learned Additional Sessions Judge (FTC), Lakhimpur, Sessions Case No.126(NL)/2014 was registered. Charge being read over, the accused pleaded not guilty and claimed to be tried.

5. During trial, prosecution examined 9 witnesses. Apart from exhibiting the ejahar and the G.D. Entry, the prosecution also exhibited the Inquest Report, Seizure List by which a hammer was seized, Post-Mortem Report, Sketch Map, Charge-Sheet as Ext-2, Ext-3, Ext-4, Ext-5 and Ext-6, respectively. Defence adduced no evidence. The plea taken by the appellant was of denial.

6. The learned Trial Court based its order of conviction on circumstantial evidence.

7. Mr. Lahkar, learned Amicus Curiae has submitted that the learned Trial Court was manifestly wrong in concluding that the prosecution was able to prove the offence against the accused beyond all reasonable doubts and that the circumstances emanating from the evidence on record formed a chain so complete that there was no escape from the conclusion that within all human probability, the crime was committed by the accused and none else and that other circumstantial evidence are also inconsistent with the innocence of the accused. Another submission advanced by Mr. Lahkar is that there are contradictions in the evidence of prosecution witnesses. In a case, which rests on circumstantial evidence, prosecution has to prove motive for the crime and in the instant case, prosecution failed to prove motive for the crime allegedly committed by the appellant, he submits. His further submission is that the weapon of offence, namely, the iron hammer was not sent with the finger print of the appellant for Forensic Science Examination and as such there was no proof that the hammer was used by the appellant. He has also submitted that ejahar was lodged by PW-1 on the basis of information received by him from his nephew Pabin over telephone and non-examination of Pabin is fatal to the prosecution case.

8. Mr. K.A. Mazumder, learned Additional Public Prosecutor, on the other hand, has submitted that materials on record abundantly demonstrate culpability of the appellant in the commission of the crime and the learned Trial Court was correct, in view of the circumstances appearing against the accused-appellant, to convict the accused-appellant under Section 302 IPC. Mr. Mazumder has submitted that non-examination of Pabin in the attending facts and circumstances of the case, will have no bearing.

9. It is also submitted that absence of Forensic Science Examination will not help the accused in any manner in view of the overwhelming materials against the appellant. Motive may be a relevant factor, but merely because no motive was proved, will not entitle the appellant the benefit of doubt when the circumstantial evidence unerringly established the guilt of the accused, he contends.

10. We have considered the submissions of the learned counsel for the parties and have examined the evidence on record.

11. The ejahar was lodged by PW-1, who, as it appears, is a related brother of the accused. He is a witness in Ext-2. He had stated in his evidence that his nephew Pabin had informed him about the incident over phone and on receiving the information, he went to the place of occurrence and found his sister-in-law lying on a bed in the house and that the accused was kept confined by his co-villagers. In his cross-examination, he had deposed that he had not earlier heard about any quarrel between the accused and his deceased wife.

12. PW-2 is a reported witness and he also found, on going to the place of occurrence, the deceased lying dead on the bed.

13. The evidence of PW-3 is that she lives in the same line in the garden (an expression used in a Tea Garden) where the accused resides and that their houses are contiguous. In her evidence she had stated that as there was a commotion inside the house of the accused at night, she had called the neighbours and on going there, found the door of the house of the accused locked from inside. When asked to open the door, the accused opened the door and on going inside, she found that the deceased had already died and that accused was inside the house alone. They called the garden chowkidar and after confining the accused, handed him over to the police.

14. PW-4 also deposed that on hearing the hue and cry of the deceased, PW-3 called them and then they all went to the house of the accused. The deceased had already died when they reached there. They saw the accused in the house, who had tried to escape on seeing them, whereupon the villagers caught hold of him and informed the garden Manager.

15. PW-5 had also reached the place of occurrence at night and he is a witness in Ext-2 and Ext-3.

16. PW-6 is another witness who had gone to the house of the accused hearing commotion. He found Sukurmoni lying dead inside the house and the accused standing with a hammer in hand, which he dropped seeing the public. He is also witness in Ext-3.

17. PW-7 is a nephew of the accused and he also happened to go to the house of the accused at night following the commotion.

18. PW-8 is the doctor who conducted the post-mortem examination and he exhibited the same as Ext-4. In his evidence, he described the injuries as follows:

On examination, I found laceration over left parietal area of head, size 6 cm x 1 cm x 1 cm. There was also contusion over left supra scapular area, size 7 cm x 1 cm. I also found fracture of left parietal bone and separation of left fronto parietal bone junction. I also found blood stain over left parietal area with sub-dural hematoma with approximately 32 ml of blood collection. There was also contusion over left parietal lobe of brain, size 2 cm x 2 cm x 2 cm. There was another contusion over left shoulder. The injuries were ante-mortem in nature.

In my opinion, the deceased died due to head injury.

In his cross-examination, he had stated that such type of head injury could be sustained if a person had fallen on hard substance from a higher place.

19. PW-9 deposed regarding the steps that he had taken during the course of investigation. In his cross-examination, he had stated that PW-3 did not tell him that having seen the incident, she had called in the garden chowkidar and the police and handed over the accused to the police after tying him up. He also stated that PW-4 did not tell him that she had seen the accused inside the house and that the accused had tried to run away. Through cross-examination of PW-9, the defence could establish that PW-5 did not tell him that on his arrival at the place of occurrence, he had found the accused tied-up and that as people gathered, the accused had dropped the hammer.

20. In his statement under Section 313 CrPC, the appellant had admitted that he had been sleeping inside the house alone. However, he stated that he had not committed any crime. He also stated that he could not say how or why the deceased raised the commotion.

21. There is no cross-examination of PW-9 with regard to the deposition of PW-3 that the door of the house of the accused was locked from inside and that the accused had opened the door when demanded by the people and that the accused was alone inside the room. Thus, the evidence of PW-3 on the most crucial aspects of the case has remained unimpeached. PW-9 was also not cross-examined with regard to the deposition of PW-4 that as she went inside the house of the accused, she saw the accused standing there with a hammer in hand. PW-4 of course, it was stated that by PW-9, did not tell him that she had seen the accused inside the house. But in our considered opinion, the same will not have any impact on the prosecution case as the appellant had admitted that he was inside the house. It is clear from the evidence on record that the accused and the deceased were the only two persons inside the house as the evidence has ruled out presence of any third person and that the door of the house was locked from inside. There was a commotion in the house of the accused prompting neighbours to gather and they demanded the accused to open the door. The door was opened by the accused and the witnesses saw the dead body of the wife of the accused lying in the bed. The injuries sustained by the deceased are consistent with blows of a hammer, which was also seized. Merely because the hammer and the finger print of the accused were not sent for Forensic Science Examination, we are of the considered opinion that in the facts and circumstances of this case, the same will not dent the prosecution case. Independent witnesses had testified against the accused and there was no suggestion that the witnesses were inimical to the accused. As such, there is no reason to disbelieve their testimony.

22. It is true that in a case resting on circumstantial evidence, motive plays a significant role. However, it is also equally well settled that if there are circumstances which would lead to the only conclusion that it was the accused alone and none else who committed the murder, then the motive becomes immaterial.

23. We are of the opinion that the facts established is consistent with the hypothesis of the guilt of the accused and the chain of evidence is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. Therefore, it cannot be said that for failure to establish motive, the substratum of the prosecution case had fallen apart. We also find substance in the argument of Mr. Mazumder that having regard to the evidence on record, non-examination of Pabin will not derail the prosecution case.

24. Taking that view, we do not find any merit in this appeal and accordingly, the same is dismissed.

25. For the assistance rendered, Mr. K. Lahkar, learned Amicus Curiae will be entitled to a fee of Rs.7,500/- to be paid by the Assam State Legal Services Authority.

26. Registry will send back the records.