Dhirendra Sarkar @ Dhiren and Others vs State of Assam

D.N. Choudhury, J.—This appeal is directed against the judgment and order dated 10.7.96 in Sessions Case No. 46 of 1993 passed by the learned Sessions Judge, Cachar, Silchar convicting and sentencing the accused Appellants u/s 148 / 149 / 302 / 342 / 201 IPC sentencing the accused-Appellants to undergo rigorous imprisonment for life and to pay a fine of Rs. 5000/- each and in default to pay fine to undergo rigorous imprisonment for a period of one year.

A FIR was lodged at the Silchar Police Station by one Ranjit Das about the assault caused on his brother Rasamoy Das while he was returning from Kour Singh''s residence at Alambag. According to informant Rasamoy Das could not be found out inspite of an extensive search. It is further alleged in the FIR that a number of persons of his village had said to him that the accused persons after having killed him removed the dead body to some other place by a truck. In the above first information report dated 23.2.91. 7 persons were named. The said information was registered as Silchar P.S. Case No. 195/91 u/s 147 / 148 / 149 / 302 / 201 IPC. After investigation, police submitted charge sheet against the accused persons under the aforesaid Sections of law.

The learned trial Court framed charges against the aforesaid seven accused persons Under Sections 148 / 149 / 302 / 342 / 201 of the IPC law which were read over, explained and interpreted to the accused persons, to which the accused persons pleaded not guilty and claimed to be tried.

The prosecution examined as many as 14 witnesses. P.W. 1- Alimuddin Laskar identified the accused persons in the dock. He also deposed that he knew deceased Rasamoy, who died 2/3 years before. He also stated that he was informed that a person was murdered and he was Rasamoy Das. The witness was confronted with the statement u/s 161 of the Code of Criminal Procedure.

P.W. 2-Dhiraj Mahan Nath who deposed that he knew ail the accused persons, that 2/3 years before, while he was going home from School, at the Alambag bus stoppage he heard people discussing that some incident occurred in the line bus. Thereafter the above witness was also declared hostile and he was confronted with the earlier statement made before the police.

P.W. 3-is a sub-Divisional Medical and Health Officer, Silchar Civil Hospital. He performed the post mortem examination on the dead body of Rasomoy Das, He found a decomposed swollen dead body and also found all 7 injuries were ante mortem. In his opinion, the death was due to shock and haemorrhage, resulting from the injuries as described in the post mortem report.

P.W. 4 Kulabashi Das, who deposed that he knew all the accused persons, who were in the dock. He further deposed that Rasamoy Das died about 2/3 years before. On the day of occurrence there was a scuffle between Dhirendra Sarkar and Rasamoy, and Chunilal told him that on the previous day his nephew Dhirendra had a quarrel with Rasamoy and there was a brawl and Rasamoy was sent for medical examinations. He also made some arrangement to that effect and sent Haralal and Bhusan Das to enquire and locate the injured Rasamoy and after three-four hours they came back and told that Rasamoy was not available in the Silchar Medical College Hospital, nor at Sibitobichia primary Health Centre. On the same day in the after noon police was informed and police came on enquiry. Next day police arrested accused Sudhin Sarkar and on being interrogated he told police that Rasamoy was killed and his dead body was buried under the earth in a tilla which was inside a ''beel''. Thereafter police went with Magistrate and recovered the dead body of Rasamoy Das.

P.W. 5-Nitai Chandra Das. He also identified the accused in the dock and informed that he knew Rasamoy Das. On the date of occurrence in the evening while he was going to Alamchera Bazar through village path, suddenly he heard uproar from the house of accused Ramen Sarkar. Then he went to the house of Ramen Sarkar and saw Rasamoy Das lying on the courtyard of Ramen Sarkar. He also saw him bleeding with injuries. He saw accused Gopal Das. Sudhir Sarkar, Harendra etc. The witness was declared hostile by the prosecution.

P.W. 6 is Kuwar Singh who deposed about coming of Rasomoy at his house at Kamalabagan, under Alambag police station. At that time Rasamoy was in breavement since his mother died. He came with bare body and with "Dhora-gola". He went to him for money. The witness stated that he could not repay him and thereafter at about 12 noon he left him. Rasomoy also invited him to the Sradha Ceremony of his mother. Two days thereafter he knew that Rasamoy Das dead.

P.W. 7 is Masaddar Ali Laskar who deposed that on the day of occurrence he was at his house in between 4-30 to 5 ''O''clock in the evening. At that time he saw accused Dhiren, Gopal, Ramen and Sudhir proceeding towards their house taking along Rasomoy after beating him with iron rod. He asked them not to assault him in that manner. The accused asked the witness not to go in that direction. Rasamoy was with a bare body and was wearing a piece of Coarse cloth over his waist. He heard that Rasamoy was dead. In cross-examination the witness stated that his house was on a hillock. At the sight of the tussle he came down from the hillock. He saw Rasamoy was taken towards Ramen''s house and the witness left for his own house.

P.W. 8 is Rati Kanta Das. He is a grocery shop owner. He was present when police seized the material exhibit. This witness stated that the accused Sudhin showed the place from where the police recovered the dead body of Rasamoy by digging the earth. In cross-examination he stated that Rasamoy was his nephew. From the shop he saw his aunt with the police in the jeep Car. The place where the dead body was found would be about 2/3 K.M. away from his shop. Sudhin was with handcuffs. He found 60/70 people assembling there from where the dead body was recovered.

P.W. 9 is Sribhusan Das @ Sanyasi. This witness deposed that on the day of occurrence at night he was at Alamchora Bazar where he heard that Chunilal''s nephew had assaulted and ragged away Rasamoy towards their house and next day in the morning he went to the house of Kulabasi Das where he bound. Chunilal Sarkar and heard Chunilal Sarkar saying to Kulobasi that on the previous day Rasomoy was assaulted by his nephew and Rasomoy had been hospitalised.

P.W. 10 is Umesh Chandra Das. He knows all the accused persons namely- Dhirendra Sarkar, Gopal Das, Ramendra Sarkar, Sudhin Sarkar, Sunilal Sarkar, Borendra Laskar and Harendra Das. This witness stated that in the north of his house were the residences of Ramendra Sarkar, Birendra Sarkar, Sudhin Sarkar, Dhirendra Sarkar. On the day of occurrence he was at his house. All on a sudden, he heard a scream from the direction of Ramendra Sarkar''s house. He went to the front of Ramendra Sarkar''s house and from their he saw accused Dhirendra Sarkar, Gopal Das, Birendra Sarkar, Sudhin Sarkar, Ramendra Sarkar, Harendra Sarkar and Sunilal Sarkar in a body dragging Rasomoy Das to Ramendra''s house from the road. He further stated that the accused persons assaulted Rasomoy. Four of them had iron rods in their hand while the rest were armed with ''Lathis''. Dhirendra'' Ramendra, Gopal and Sudhin were armed with iron rods. He told them that Rasomoy was a ''Kiradharai'' and asked them not to assault him. At that time Rasomoy had worn kira as his mother had died. Accused Sunilal them told him -"Where were you when I was insulted." The accused also threatened to kill him. He went away Next day the witness went to Damcherra bazar. There he saw villagers producing Sudhin Sarkar before the police. The Daroga asked Sudhin about the killing of Rasomoy. He named all the accused persons including Sunilal that they had killed Rasomoy. He saw the villagers producing Sudhir Sarkar. In cross-examination witness stated that he saw the scuffle for about 8/10 minutes. He did not call for any one from the neighbourhood. The witness stated that be told the Daroga that he knew the deceased. He also said that while he was proceeding towards his home suddenly he heard a scream from the direction of Ramendra Sarkar''s house and he had gone to front of Ramendra''s house and saw the accused persons dragging Rasomoy to Ramen''s house and assaulting him with iron rods. The witness was cross-examined at length and confronted with the statements made before u/s 161 Code of Criminal Procedure.

P.W. 12 is Ranjit Das. Deceased Rasomoy Das was his younger brother. He fully corroborated P.W. 1 who lodged the First information Report. The witness stated that at the relevant time he was at Tarapur, Silchar and before that he was at Alombag. His brother Rasomoy and his mother used to stay with him at Silchar. At the time of occurrence they were in morning period and wearing "Kira". On the day of occurrene Rasomoy went to Alombag with a view to get some money from Kowar Singh. Next day his brother has been murdered by Ramen Sarkar, Dhiren Sarkar, Sudhin Sarkar, Gopal Das, Haren Das etc. There after he lodged an ejahar before the Silchar Police Station. On the same day police went for investigations and he accompanied the police and he showed the houses of the accused persons to police. Next morning he returned to his place and on the same day in the afternoon some villagers had apprehended accused Sudhin Sarkar. Then he went there with police. He along with police went to Damchara Bazar where they found accused Sudhin. Accused Sudhin confessed before investigating police officer where the dead body of his brother Rasomoy was concealed. Thereafter accused Sudhin led them to the place of concealment of the dead body. Next day he along with police accompanied by Magistrate went to the same place and recovered the dead body of the deceased Rasomoy Das. The witness was cross-examined at length. He was present when the seizure list. Ext. 7, was prepared.

P.W. 13 is Shri Chunilal Paul, who is the investigating Police officer. This witness stated that on 24.2.91 at about 3-15 RM. at Silchar Police station one of the accused, Sudhindra Sarkar was apprehended by the villagers and he left for the said place to arrest the other accused. The witnesses detained the accused and the accused told him that after killing the deceased Rasomoy Das, his dead body was buried and he would be able to show the place where the dead body was concealed. On 25.2.91 the District Magistrate deputed one Shri N.C. Choudhury, S.D.O.(Sadar) to the said place. He also accompanied him to that place and as per his order the dead body was dug up and the same was identified by the brother of the deceased, Ranjit Das. At that time Sudhindra Sarkar was also present. He held the inquest on the dead body of deceased, vide Ext. 4. He sent the dead body for the post mortem examination. This witness stated that he recorded the statement of the accused Sudhindra Sarkar who led him to the place where the dead body was concealed and thereafter recovered the dead body by police in presence of a Magistrate and prepared an inquest report and the same was proved as Ext 9. The witness was cross-examined, more particularly, about the recovery of the dead body on 25.2.91. The witness stated that he could record the statement of Sudhin before be led him to recover the dead body. On 24.2.91 accused Sudhin had led him to show place where the dead body was concealed. On that day the accused was detained in the police station for the purpose of interrogation. On 25.2.91 at about 10-30 A.M. the dead body was recovered in presence of a Magistrate. The witness obtained the signatures of the accused on Ext. 9 and recorded the statement on 25.2.91. This witness stated that he recorded the Ext. 9 after recovery of the dead body of the deceased. The witness however, denied the suggestions that Sudhir Sarkar was arrested by police when the dead body was concealed on a tilla.

The learned trial Court on consideration of the evidence on record convicted die accused persons as indicated above.

Mr. N.M. Lahiri, learned senior counsel appearing on behalf of the Appellants, firstly, submitted that the learned Sessions Judge committed error in convicting the Appellants u/s 148 / 149 IPC. The prosecution failed to prove the essential ingredients of involvement of the accused persons. Mr Lahiri further questioned the admissibility of Ext. 9 which was recorded after recovery of the dead body of the deceased. Mr. Lahiri, the learned senior counsel submitted that the same could not have been admitted as a piece of evidence u/s 27 of the Evidence Act. Mr. Lahiri, the learned senior counsel, further contended that the prosecution failed to prove its case and the evidence of P.W.s 7, 10 and 11 could not be acted upon. In course of his argument, Mr. Lahiri, the learned senior counsel, also pointing out to the material Exhibit 1. identified by the investigating officer, expressed his surprise in view of the presence of the shirt with the dead body when the deceased, according to the prosecution, was unclothed save and except the bare coarse Dhoti which he was wearing due to observance of rite. The story of recovery of the dead body as sought to be portrayed by the prosecution, throws doubt on the prosecution story, submitted the learned Senior counsel Mr. Lahiri.

Mr. J. Singh, learned Public Prosecutor, on the other hand, pointed out that the common object of the accused & assaulting and causing death of the deceased, was duly proved from the evidence on record.

In the instant case, the prosecution sought to prove its case on the testimony of P.Ws. 7, 10 and 11 and as well as the eye witnesses. In addition, it also relied upon Exhibit 4, discovery made of the deceased at the instance of one of the accused.

We have already indicated the evidence of the witnesses, P.W. 7, who named the four accused, viz., Dhiren, Gopal, Ramen and Sudhin. But P.Ws. 10 and 11, however, indicated the names of other three accused persons. The testimony of P.Ws. 7, 10 and 11 no doubt, suffer from some contradictions, but the totally of the evidence of the witnesses unerringly pointed to the guilt of the accused, who witnessed the occurrence. The evidence of these witnesses were corroborated by the evidence of P.Ws. 4, 5, 6, 8, 12, 13 and 14. The testimony of P.W. 5, who was declared hostile by the prosecution was acted upon by the learned trial Court. It is not the law that the testimony of a hostile witness cannot be relied upon in all circumstances. It all depends on the facts and circumstances. Section 154 of the Evidence Act deals with the situation permitting a party to put his own witness "questions which might be put in cross-examination by the adverse party". In a criminal case, when a witness is cross-examined and contradicted with the permission of the Court u/s 15A of the Evidence Act, the testimony of the witness as a matter of law, cannot be obliterated from the record altogether. The judge is given the full discretion to judge the situation. A statement made to a police officer leading to the discovery of a fact, is an admissible piece of evidence if the same is made while the accused was in custody when he made the statement. The dead body was recovered from the place where the corpus was concealed and buried as a consequence of information furnished by the accused, Sudhin Sarkar. The fact discovered pointedly referred to a material fact to which the information directly linked. The recovery of the dead body from the secret chamber at the instance of the said accused is an important circumstance though we have some doubt about the admissibility of Exhibit 9, the material Exhibit 1, which was referred to by the investigating officer, was about wearing a full shirt, According to the investigating officer, the above shirt was found inside a grave and identified by his brother Ranjit Das as P.W. 12. Ranjit Das in his evidence, deposed that one torn shirt was found in the grave, material Exhibit 5. The said shirt was seized by the police. From the above evidence, it cannot be said that the said shirt was that of deceased, Rasamoy Das, as no witness said that he was wearing a shirt. The witnesses described the occurrence and their evidence cannot be discarded as unreliable on that count.

On consideration of all aspects, we do not find any material to differ from the findings of the learned trial Court regarding involvement of the accused.

Mr Lahiri, the learned senior counsel, submitted that from the evidence on record, it did not establish the guilt of the accused u/s 302 IPC, therefore the accused could not have been convicted u/s 302 IPC.

We have given our anxious consideration on this matter. The injury No. 5 on the left side of the fore-head, 1" above the left eye brow. 1/2" x 1/2" x bone deep, caused depressed fracture on the frontal bone with rupture of brain membrane. There are six other injuries on the different parts of the body-some are bruised and some are lacerated. The nature of the injuries indicate the manner in which those were caused to the deceased, unerringly pointing to the intention of the accused, persons to cause the death or their intention to cause injury which was likely to cause the death of the deceased. The evidence on record established the intention to inflict the particular bodily injuries found to be present on the deceased and under no circumstances, can be said to have been done a accidentally or unintentionally. Taking into account all the attending circumstances, we do not have any hesitation to concur with the views of the learned trial Court holding the Appellants guilty of the offences charged against them.

We find no merit this appeal. Accordingly appeal is dismissed.