Bhupen Doley vs The State Of Assam

Bhupen Doley, Son of Late Punya Doley, Resident of Jon Misuk, Sisi Kolghor, P.S.- Dhemaji, District- Dhemaji ----- Accused/Appellant - VERSUS - 1. State of Assam

2. Dilip Doley, Son of Lalindra Doley, Resident of village Jaumichuk Gaon, P.S.-Dhemaji, District-Dhemaji, Assam

----- Respondents/Opposite Parties.

BEFORE Hon'ble Mr. Justice Manash Ranjan Pathak Hon'ble Mr. Justice Hitesh Kumar Sarma

Advocate for the appellant : Mr. BN Gogoi, learned Amicus Curiae

Advocate for Respondents : Mr. NJ Dutta, Addl. P.P.

Date of hearing :: 18th of November, 2017.

Date of Judgment & Order :: 8th of December, 2017 .

JUDGMENT & ORDER (CAV)

(HK Sarma, J)

The Criminal Appeal (J) No. 63/2014, has been preferred

by appellant Bhupen Doley against the judgment and order, dated

15.05.2014, in Session Case No. 74(DH)/2006 passed by the learned

Crl. A.(J) No. 63 of 2014 Page 1 of 10 Sessions Judge, Dhemaji, convicting and sentencing the appellant to

imprisonment for life and to pay a fine of Rs 10,000/- in default to

undergo rigorous imprisonment for 6 months on each count for his

conviction under Sections 449/302 of Indian Penal Code (IPC).

[2] The facts leading to this appeal may be summarized as

follows:-

[3] On 1.12.2005, an FIR was lodged by Sri Dilip Doley at

Machkhowa Police Outpost, under Dhakuakhana Police Station, alleging

that on that day at about 6 p.m accused Bhupen Doley entered into the

house of deceased Sarbeswar Doley and stabbed him by a sharp cutting

instrument causing his death instantly.

[4] On receipt of the FIR it was forwarded to Dhakuakhana

Police Station. Dhakuakhana Police Station registered a case being No.

125/2005 under Section 302 IPC and investigated into it. Upon

completion of the investigation, a charge sheet was laid against accused

Bidyadhar Doley, Bhupen Doley and Janmeswar Doley for offences

under Section 450/302/34 of IPC.

[5] The offences being triable exclusively by the Court of

Session, the learned Chief Judicial Magistrate, Dhemaji, committed the

case to the Court of Session at Dhemaji. It may be pointed out that

accused Janmeswar Doley absconded even before the commencement

of trial and hence he was declared as absconder and case was filed as

against him. After hearing both sides, charge under Sections 449/302/34 Crl. A.(J) No. 63 of 2014 Page 2 of 10 of IPC were framed against accused Bidyadhar Doley and Bhupen Doley

to which they pleaded not guilty and claimed to be tried. In the course

of trial, however, accused Bhupen Doley, the appellant herein,

absconded and the case against him stood filed. The trial thereafter

proceeded against accused Bidyadhar Doley. Prosecution examined nine

(09) witnesses including the Medical Officer and the Investigating Police

Officers. Accused Bidyadhar Doley was acquitted of all the charges and

set at liberty by a judgment dated 13.06.2011 in the Sessions case out of

which this appeal arose. An appeal, vide Crl. Appeal No. 132/2011 was

also preferred by Smt. Sumitra Doley, wife of the deceased. The said

appeal was dismissed and acquittal of the accused Bidyadhar Doley was

maintained by this Court vide judgment, dated 25.07.2013.

[6] In the meanwhile accused appellant Bhupen Doley was

arrested on the strength of pending arrest warrant. On his production

before the Sessions Judge, Dhemaji, trial as against him commenced. All

the prosecution witnesses were recalled for cross examination and all

prosecution witnesses were accordingly cross examined on behalf of

accused-appellant Bhupen Doley. At the closure of prosecution

evidence, as required under Section 313 of CrPC, all the incriminating

materials were put to the accused person. The accused Bhupen Doley

denied the accusation levelled against him and also declined to adduce

any evidence. After hearing arguments tendered by the Prosecution as

well as the defence, the learned Sessions Judge, Dhemaji, convicted and

sentenced the accused appellants as aforesaid.

Crl. A.(J) No. 63 of 2014 Page 3 of 10 [7] Examined the trial Court's record including the evidence

laid by the prosecution as well as the judgment put to challenge in this

appeal.

[8] Heard Mr. BN Gogoi, learned Amicus Curiae, appearing

for the appellant. Also heard Mr. NJ Dutta, learned Additional Public

Prosecutor, appearing for the State of Assam.

[9] The entire case of the prosecution hinges upon the direct

evidence of PW3, Smt. Sumitra Doley, widow of deceased Sarbeswar

Doley, PW4, Smt Jugamaya Doley and PW5, Smt. Hema Doley, the

daughters of deceased.

[10] PW3, Smt. Sumitra Doley deposed that the incident took

place inside their house at about 5.30 p.m in her presence. According to

PW3, accused Bhupen Doley, the appellant herein, Janmeswar Doley

(since absconded) and accused Bidyadhar Doley (already acquitted)

came to their house. Accused Bidyadhar Doley was waiting outside

whereas accused Bhupen Doley and Janmeswar Doley came inside their

house. Accused Bhupen Doley and Janmeswar Doley started an

altercation with her deceased husband over a land matter. In the course

of altercation accused Jamneswar grabbed her deceased husband and

accused Bhupen Doley stabbed him in his abdomen with a sharp

weapon. Thereafter the accused persons fled from the scene

immediately. PW3 also deposed that her husband died on the spot.

Crl. A.(J) No. 63 of 2014 Page 4 of 10 [11] The cross examination of PW3 does not, in any manner,

shake her credibility as witness. The defence could not elicit anything

which could render the testimony of PW3 as improbable.

[12] The evidence of PW4, Smt Jugamaya Doley and PW5,

Smt. Hema Doley need not be reproduced here since both these

witnesses have deposed that they have seen the incident leading to the

death of their father. Their evidence is that accused Jamneswar grabbed

their deceased father and accused Bhupen Doley stabbed him in his

abdomen with a sharp weapon.

[13] The cross examination of these witnesses by the defence

does not show that the credibility of these witnesses have been

impeached in any manner.

[14] Apart from the direct and reliable oral evidence of PW3,

PW4 and PW5, prosecution has also adduced in evidence a statement of

the accused Bhupen Doley which lead to the recovery of the dao, the

weapon of offence. Ext 10 is the statement of accused Bhupen Doley

wherein he has stated that he can show the place where he had hidden

the dao. On the basis of the statement of this accused-appellant the dao

was recovered.

[15] Relying on the case of Kottaya v. Emperor, reported in

A.I.R. 1947 P.C. 67 the Hon'ble Supreme Court in the case of

Ramkishan Mithanlal Sharma v. State of Bombay, reported in AIR 1955

SC 104 held that Section 27 (of the Evidence Act) is an exception to the

Crl. A.(J) No. 63 of 2014 Page 5 of 10 rules enacted in Sections 25 and 26 of the said Act which provide that

no confession made to a police officer shall be proved as against a

person accused of an offence and that no confession made by any

person whilst he is in the custody of a police officer unless it is made in

the immediate presence of a Magistrate, shall be proved as against such

person. Where, however, any fact is discovered in consequence of

information received from a person accused of any offence, in the

custody of a police officer, that part of the information as relates

distinctly to the fact thereby discovered can be proved whether it

amounts to a confession or not. The expression "whether it amounts to

a confession or not" has been used in order to emphasise the position

that even though it may amount to a confession that much information

as relates distinctly to the fact thereby discovered can be proved against

the accused. The section seems to be based on the view that if a fact is

actually discovered in consequence of information given some

guarantee is afforded thereby that the information was true and

accordingly can be safely allowed to be given in evidence. But, the

extent of the information admissible must depend on the exact nature

of the fact discovered to which such information is required to relate.

[16] In view of the direct oral evidence that accused appellant

Bhupen Doley had inflicted stab injuries on the body of deceased

Sarbeswar Doley by a sharp cutting instrument coupled with the

recovery of the dao on the strength of statement of the accused

Crl. A.(J) No. 63 of 2014 Page 6 of 10 appellant, leaves no manner of doubt as to the guilt of the accused

appellant.

[17] The question now is whether the act of the accused

amounts to culpable homicide not amounting to murder or murder. In

this regard Ext 6, the post mortem report of the deceased Sarbeswar

Doley and the evidence of PW6, the Medical Officer, reveal that the

deceased had sustained the following injuries which he had recorded in

the post-mortem examination report vide Ext.6:-

"On external examination, a perforating wound is found on the left side of the abdominal wall. The enterior end of the wound is found 4 inch left and above the umbilicus. The end is 2½ " X 1" in diameter and a small portion of intestine came out through this end. There is slight oozing of clotted blood through this end.

The posterior end of the wound is found in between 11th and 12th rib, left which is 3" lateral of the mid-line. The end is 1½ "X 1" in diameter. There is oozing of clotted blood is seen at this end and on dissection through this wound, a huge collection of clotted blood is seen inside the abdominal cavity.

The spleen is cut through. The cut margins of the spleen is washed with water. The blood stains are not removed. Therefore, the injury is ante-mortem in nature.

No other injury or ligature mark is seen on the body. This injury is sufficient to cause death of person in ordinary course of nature."

It is not even disputed by the defence that death of Sarbeswar

Doley was homicidal. In the opinion of the PW6, the death is due to

hemorrhagic shock. The injuries certainly come within the ambit of

Clause 3rdly to Section 300 IPC which provides as follows;

3rdly.--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, Crl. A.(J) No. 63 of 2014 Page 7 of 10 [18] In the case of Virsa Singh v. State of Punjab, reported in

AIR 1958 SC 465 the Hon'ble Supreme Court observed that 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 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.

[19] The Hon'ble Supreme Court in Virsa Singh (supra), held

that once the four elements, as aforesaid, are established by the

prosecution (and, of course, the burden is on the prosecution

throughout) the offence is murder under Section 300 "thirdly". It does

not matter that there was no intention to cause death. It does not

matter that there was no intention even to cause an injury of a kind that

Crl. A.(J) No. 63 of 2014 Page 8 of 10 is sufficient to cause death in the ordinary course of nature (not that

there is any real distinction between the two). It does not even matter

that there is no knowledge that an act of that kind will likely to cause

death. Once the intention to cause the bodily injury actually found to

be present is proved, the rest of the enquiry is purely objective and the

only question is whether, as a matter of purely objective inference, the

injury is sufficient in the ordinary course of nature to cause death. No

one has a licence to run around inflicting injuries that are sufficient to

cause death in the ordinary course of nature and claim that they are not

guilty of murder. If they inflict injuries of that kind, they must face the

consequences; and they can only escape if it can be shown, or

reasonably deduced, that the injury was accidental or otherwise

unintentional.

[20] The fact that the accused-appellant caused the fatal injuries

to the deceased with sharp object while the deceased was caught hold

by his co-accused, that too in the house of the deceased, and the fact

that the accused appellant went to the house of the deceased at the

time of the occurrence armed with sharp object, speaks volumes of the

intention of the accused-appellant to cause the death of the deceased.

[21] In view of the nature of injuries sustained by the deceased

and unprovoked attack on deceased made by the appellant he is found

guilty of committing an act falling under Section 300 3rdly and it

amounts to murder. On perusal of the impugned judgment in this

regard and it is found that the learned Sessions Judge, Dhemaji, has

Crl. A.(J) No. 63 of 2014 Page 9 of 10 appreciated the evidence in correct perspectives and arrived at a proper

finding on facts and law. Thus, no interference on the conviction of the

appellant for the offences under Sections 449/302 IPC is called for.

[22] Appeal is, accordingly dismissed.

[23] Send down the LCR with a copy of this judgment.

[24] This Court appreciates the assistance rendered by the

learned Amicus Curiae, Mr. BN Gogoi and directs that an amount of Rs

7000/- be paid to him as honorarium for his assistance.

JUDGE JUDGE

Nilakhi

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