Someswar Medhi and Another vs State of Assam

D.N. Chowdhury, J.—This appeal is directed against the judgment and order dated 14.3.96 passed by the learned Sessions Judge, Nagaon in Sessions Case No. 151(N)/91 covicting and sentencing the accused Appellants to undergo imprisonment for life u/s 302/34 IPC and further to undergo simple imprisonment for three months u/s 323/34 IPC.

The prosecution case in brief is that the informant the wife of the deceased (P.W. 7) appeared in Jajori Police Station and lodged the following information before the O.C. Jajori Police Station:

At about 11 a.m. today, my husband Madhab Medhi went to his own yard and cut a ''Jati'' bamboo. When he brought the bamboo and kept it in the courtyard, accused Someswar Medhi chased my husband with a dao and hacked him on the head. At the same time, accused Rebat Medhi started beating him on his hands and feet with an iron crowbar. As a result, my husband fell down on the courtyard. When I resisted, Rebat Medhi hit me on the head with the crowbar, causing grievous injuries. Someswar Medhi and Rebat Medhi beat my husband Madhab Medhi and then ran away, leaving him at the point of death. Jogeswar Medhi and my mother-in-law (Madhab''s mother) seriously injured me by assaulting with lathis. At the time of occurrence no other villager came to the spot as the two accused persons were roaming with weapons in their hands. The said accused persons have killed my husband in a very cruel manner.

The deceased Madhab along with his wife and three minor kids was living in a single room. On the date of occurrence i.e. on 16.10.87 the deceased Madhav cut a bamboo from the bamboo grove belonging to the family. An altercation ensued amongst the brothers for cutting the said bamboo. Thereafter, the elder brother Someswar Medhi and tile younger brother Rebat Medhi smarted assaulting Madhav with dao, siprang, Jathi etc. As a result of the above beating Madhav died at the spot.

The inured wife of the deceased Lilimai Medhi went to Jijari Police Station and lodged the FIR, Exhibit-2 regarding the death of her husband in the hands of the accused persons. Police registered a case and visited the place of occurrence. The dead body was found in the courtyard of the accused persons. The inquest was held and the dead body was sent for post mortem examination After completition of the investigation police submitted charge sheet against these two accused persons as well as Shri Pradip Medhi, Smti. Puapa Medhi and Smti Jogeswari Medhi. On committal of the case, the learned Sessions Judge framed charge under Sections 302/323/34 IPC against all the five accused persons. Prosecution examined 10 witnesses and defence also examined two witnesses. During trial of the case, two accused persons, namely Rebat Medhi and learned Sessions Judge constituted a Medical Board for that purpose. Learned Sessions Judge also recorded the statements of Prasad one of the Member of the Board. Considering the report of the Medical Board and on assessing the condition of the witnesses, the learned Sessions Judge resumed the trial by order dated 6.7.94.

The learned Sessions Judge convicted and sentenced the accused persons relying on two eye witnesses, namely, P.W. 7 Smti Lilimai Medhi and P.W. 8 Smti. Ripa Medhi. P.W. 7 is the wife of the deceased and P.W. 8 is the daughter of the deceased. P.W. 1 and 2 are co-villagers, P.W. 3 is a Gaonbura. They were not the eye witnesses to the occurrence P.W. 4 is the Doctor Dilip Kumar Das who conducted the post-mortem held on 17.10.87 at Hoagaon Civil Hospital and found the following injuries:

(1) penetraing injury on right mastoid region 6 cm x 2 cm x bone deep.

(2) Lacerated injury on right parietal region 4 cm x 2 cm x bone deep.

(3) Lacerated injury on right paretal bone 3 cm x 2 cm x bone deep.

(4) Lacerated injury on fault or the shunk 5 cm x 2 cm x bone deep.

(5) Lacerated injury on forehead above the left eye brow 2 c.m. x 1 cm x bone deep.

(6) Compound fracture of left arm

(7) Lacerated injury on right leg 2 in No. 2 cm x 2 cm muscle deep and cm x 1 c.m. x muscle deep.

(8) Compound fracture both bones of left leg at its lower third.

(9) Incised wound a left pina(ear) 1 cm x 1/2 cm.

(10) Abrasion on left petoral region 1 cm x 1 cm.

(11) Abrasion on chest wall near sterno-clavicular joint 3 cm x 2 cm.

(12) Fracture of 3rd and 4th left ribs.

P.W. 5 is a constable who took the dead body from his residence to the Nagaon Civil Hospital P.W. 6 is Rebat Ch. Medhi. P.W. 7 in her testimony stated that accused Someswar Medhi is her husband''s elder brother and accused Rebat Medhi is her husband''s younger brother, accused Pradip is her husband''s younger brother. Other two accused, namely Puspa Medhi is her mother-in-law and accused Jogeswar is her ''Ja'' (husband''s brother''s wife). The occurrence took place on Friday, the 16th October, 1987 at about 9.30 A.M. She narrated the full incident which relate to the assault of the deceased by the accused persons. The entire incident took place for cutting a bamboo by the deceased for which altercation took place between the deceased and the accused Someswar Medhi who forced her to go out from the room. On asking her husband she left for her maternal uncle-in-law''s house along with kids which was situated nearby. Her husband also went there and asked'' her to come back to home. Coming home she found that all the articles had been taken out from the room. She called her husband from maternal uncle''s house and told him that the articles had been thrown out. Her husband came ahead while she followed him, she heard her husband crying ''I am dying'', Coming in she saw accused Rebat and Someswar assaulting her husband. Rebat had a spear and crow-bar in his hands. Someswar assaulted her husband with a dao, she tried to save her husband, she also assaulted and she become unconscious. She was taken to kitchen by somebody and administered water etc. on her head. After some time she came to know that her husband died. She then went to Police Station and narrated occurrence there, the O.C. having written it down obtained her signature Exhibit-2 is the ejahar. P.W. 8 was aged about 11/12 years when she was examined by the Court. She stated that at the time of occurrence she was about six years. She said her father cut a bamboo, the accused persons assaulted her father and he fell down on the road. She was cross-examined by the accused persons and stated that bamboo was cut from the backyard of the house. She stated that her father cut one bamboo.

P.W. 9 was the O.C. of the Jajari Police Station who investigated the case, P.W. 10 is the Doctor who examined P.W. 7 Lilimai Medhi and on her examination, the found the following injuries.

One lacerated wound on the left half parietal region of head. Size 5 cm x 5 cm approx. bone deep.

One abrasion with red linear will diffused margin on the right shoulder measuring 10 cm x 4 cm approx.

One abrasion on the left side of the neck measuring 1 cm x 1 c.m. x Skin deep.

According to opinion of doctor, the injuries were simple in nature and of recent origin and was caused by blunt weapon.

The defence examined Arup Kr. Laskar and Smti. Ajita Bhattacharjee. P.W. 1 Doctor in his evidence stated on 13.3.87 he examined one Rebat Medhi in his chamber and found that the patient was suffering from fear phychosis and scabies. He prescribed some medicines to control the fear physchois. He again examined the said person on 22.3.87. As there was no mark of improvement, he advised the patient to go to Mental Hospital, Tezpur. The witness also proved the prescription given by him. D.W. Smti. Ajita Bhattacharjee is an U.D. Assistant in the office of the Superintendent of Civil Hospital, Nagaon. She was examined by defence to prove a certificate issued by Dr. G.M. Pathak (since deceased), on seeing the Register maintained by this Hospital, the witness stated that one Rebat Ch. Medhi was examined by Doctor Salim Ahmed at about 12.15.PM. on 16.10.87 and found the following injuries.

One linear cut injury 1 inch x 1 inch x 1 inch left side over the scapular 4 belong clavicular line in the posterior auxilleary line.

Linear cut injury over the deltoid muscle.

(i) 1" x 1/2" x l/2" (one stitch given)

(ii) l/2" x 1/4" x 1/4"

Right side

3" x 2" x 1" on the middle part of the right forearm.

4" x 2" proximal to the Rt. wrist joint.

Learned trial Court on assessing the evidence on record held two Appellants Someswar Medhi and Rebat Medhi guilty of causing death of the deceased and convicted them u/s 302 IPC. Learned Sessions Judge also found that Someswar was the real assailant for causing death of the deceased and both the accused had common intention to kill the deceased. Learned Session Judge however, did not find guilty other three accused persons guilty. Learned trial Court also considered as to whether the offence committed by the accsused amounting to murder or culpable homicide. Considering the nature of injuries and the instantenous death of the deceased and the manner by which injuries were caused by the two accused, the learned trial Court held that the accused had common intention to kill the deceased. Learned Sessions Judge also considered the defence plea more particularly the plea of insanity raised on behalf of the accused Rebat Medhi, but rejected the plea and held that neither there was any insanity at the time of occurrence nor he was insane when the trial was held, thetefore the accused Rebat Medhi was not entitled to benefit u/s 84 IPC and accordingly convicted and sentenced the accused as mentioned above.

Mr. B.D. Goswami, learned Amicus Curiae appearing on behalf of the accused Appellants has taken us to the material on record and submitted that there is no legal evidence to hold guilty so far the two accused persons are concerned. Mr. Goswami, learned Amicus Curiae referring to the evidence of P.Ws. 7 and 8 pointed out that even on their own material uncle and her other family members who were present at the place of occurrence at the time of occurrence wm the vital witness and their non-exmination affected the varasity of the witness of P.Ws. 7 and 8 Mr. Goswami further submitted that P.W. 8 was a child witness and conviction based solely on the evidence of P.Ws. 7 and 8 P.W. 7 is the wife of the deceased and P.W. 8 is a child witness and the Court ought not to have convicted the accused persons u/s 302 IPC on the basis of these two witnesses and in absence of intention to cause death of the deceased.

We have heard Mr. B. Banerjee, learned Public Prosecutor, Assam. The evidence of P.W. 7 cannot be thrown out only on the ground that she is the near relative of the deceased. She is the most material witness who was always with her husband (deceased) and witnessed the entire occurrence which took place before her. There is ring of truth in her statement P.W. 8 was no doubt a child witness, but on that ground her evidence cannot be discarded. Section 118 of the Indian Evidence Act provides that all persons shall be competent to testify unless the Court considers that they are prevented from under standing the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. A lunatic is not incompetent to testify, unless he is prevented his lunacy from understanding the questions put to him and giving rational answers to them. These two witnesses are the most material and natural witnesses who unfolded the narrative and the learned trial Court acted upon their evidence and found both the accused persons as guilty of the offence and convicted them u/s 302/34 IPC. It may be stated that the P.W. 8 who was a child witness was student of Class VII at the relevant time. The learned trial Court adopted an appropriate procedure in ascertaining the intellectual capacity and understanding of the witness. Law has not prescribed any age limiting the Court to exclude the evidence of a person. Neither any cut and dried way can be formulated defining the degree of intelligence, knowledge and competance to disable a child to be a competent witness. It all depends on the adroitness, good sense and discretion of the trial Judge. It is however desirable that the trial Judge should record there opinion that the child understands the duty of speaking the truth. We have ourselves looked to that aspect of the matter and we are satisfied with the competence and credibility of P.W. 8. We do not find any infirmity in the evidence of these two witnesses and basing the evidence of these two witnesses along with the testimony of doctor both the accused were rightly held guilty by the learned trial Court. We have already indicated that the learned trial court followed the right procedure in trying the accused Rebat and Pradip in conformity with Chapter XXV of the Code of Criminal Procedure. We also do not find that the accused person Rebat was of unsound mind to get protection of Section 84 IPC. As regards conviction of the accused u/s 304 IPC considering the nature of the injury and the part played by accused Someswar, it is apparant that the accused Someswar caused the injuries on the person of the deceased with an intention to cause death and therefore, he was rightly convicted u/s 302 IPC. However, from the testimony of P.Ws. 7 and 8 as well as the evidence of P.W. 10 the element of participation of the accused Rebat in causing the death of Madhab cannot be inferred. The essence of accountibility u/s 34 of the IPC is tibe existence of a common intention energizing the offenders and involvement in a criminal act in furtherance of the common object.

P.W. 7 in her evidence contended that quarrel started for cutting a bamboo and it was Someswar who threatened the deceased that "you cut the bamboo and I shall cut you too". The witness stated Rebat had a Spear and a Crow-bar in his hands. Someswar assaulted her husband with a Dao. Then her mother-in. law, ''Ja'' and Pradip held husband while Someswar and Rebat continued to asault him from the front. The witness tried to save her husband. While Someswar was assaulting two cut-blows slipped and struck Rebat in the body. At that stage her mother-in-law beg Someswar to leave. From the testimony of witnesses, it cannot be inferred that accused shared with Someswar the common intention to cause the death of Madhab. Therefore, accused Rebat cannot be roped u/s 34, the materials on record amply proved that the accused Rebat was guilty for culpable homicide not amounting to murder and accordingly accused Rebat is convicted u/s 304 Part-II IPC. We accordingly sentence Rebat with six years R.I. u/s 304 Part-II IPC.

In the result, the appeal filed by Soemswar is rejected and the appeal filed by Rebat is partly allowed. The conviction and sentence u/s 323/34 IPC against both the Appellants are sustained.

We appreciate the assistance rendered by Mr. B.D. Goswami, the learned Amicuas Curiae and the Public Prosecutor. Mr. B.D. Goswami, the learned Amicus Curiae, shall be paid the hearing-fees for two day as admissible.