Sonu Nahak vs State Of Assam

AM Bujor Barua, J

Heard Mr. R Sarma, learned Amicus Curiae for the appellant. Also heard Mr. M Phukan, learned Additional Public Prosecutor, Assam appearing for the State of Assam.

Service report dated 21.05.2017 of the Officer-in-Charge, Chariduar Police Outpost reveals that notice upon the informant/respondent No.2 has been duly served. Inspite of such service none appears.

An ejahar dated 22.02.2013 was lodged by Rohit Keot before the Officer-in-Charge of Chariduar Police Outpost, inter alia, stating that at around 8.30 PM on 21.02.2013, the accused person Sanu Nahak had unauthorizedly entered into the house of the informant, even though, the family members were sleeping and he woke up his parents by knocking at the door, stating that he had something to discuss. In doing so, the mother of the informant opened the door and the accused killed his father by repeatedly hacking him with a sharp dao that he was carrying. In the circumstance, the accused appellant was charged of having entering the house of the informant Rohit Keot and intentionally causing the death of his father Paresh Keot and thereby committed an offence punishable under Section 302 of the IPC.

PW-1, Dr. Hiranjan Saikia, who had conducted the post mortem examination on the body of the deceased had deposed that the following injuries were found:

"Multiple cut injuries - size of 4 x 2 x 1 inches extending from scalp to neck with a cut injury of vertebra and spinal cord and major vessels in the neck.

Brain and spinal cord is lacerated.

Right forearm: incise cut injury size of 7cm x 3cm x 1cm"

PW-1 also gave the opinion that the injury in the neck was sufficient in the ordinary course to cause death and further in his opinion the person died due to haemorragic and neurogenic shock as a result of cut injury in the neck which was ante-mortem in nature.

PW-2, Pushpa Keot, who is the wife of the deceased in her evidence deposed that she was sleeping with her husband after having food when the accused came and banged on the door continuously. In the circumstances, PW-2 opened the door and thereafter the accused cut her husband with a dao. When she started shouting, the accused pushed her and she fell down and sustained injuries in both her hands. She reiterated that she could do nothing and the accused cut her husband. She also deposed that her son Rohit Keot went to his friend's house and when he came he saw his father had already died. PW-2 further stated that one Chowkidar Hindu Munda was informed and when he came he also saw the dead body.

PW-3, Hindu Munda stated that the wife of the accused and another lady came to his house and told him to go to the house of Paresh Keot as a quarrel was going on. He deposed that he had seen the accused on the way and was shouting that he had cut. When he reached the house of Paresh Keot, he saw that he was lying dead on the floor and his wife and his son were present. Thereafter, police was informed and they came.

In cross, the PW-3 stated that his house is ½ KM away from the house of the deceased Paresh. PW-3 also stated in cross that it was a dark night and there was no 'electric' (electric light) on the road. The witness stated in cross that there was a chaki light (earthen lamp) burning in the house of the deceased Paresh.

The evidence of PW-4 and PW-5 in our view would not be of much relevance and both the witnesses came to the place of occurrence much later and in fact they arrived even after PW-3 Hindu Munda, who himself came after the occurrence had taken place.

PW-6 Rohit Keot in his deposition stated that he was near his house and he was returning home and then he saw the accused coming out of his house.

The deposition of PW-6 appears to be consistent with the deposition of PW-2, where she stated that PW-6 Rohit Keot had gone to his friend's house and when Rohit came he saw his father was already dead.

In cross PW-6 stated that the house of the accused is adjacent to their house. He also stated that they were in visiting terms with the accused and that once there was a quarrel.

We have also gone through the evidence of PW-7, Kulendra Bharali, the Investigating Officer. The evidence of PW-7 does not reveal any such confrontation by the defence as regards the evidence rendered by the prosecution witnesses, more particularly, PW-2, PW-3 and PW-6.

PW-2 is the wife of the deceased and she was sleeping with her husband after having food on the night of the occurrence. While they were so sleeping, the accused came and banged the door and he was shouting continuously and in that situation, the PW-2 opened the door. On the door being opened, as stated by PW-2, the accused came and cut her husband with a dao. The said statement is again reiterated by stating that the accused had cut her husband.

PW-2 being the wife of the deceased was with her husband in the room when the accused came and assaulted the deceased by causing the injuries found on his body. We are of the view that PW-2 is the most natural witness whose presence can neither be doubted nor any suspicion can be raised, in the absence of any further material. The occurrence took place in the night hours when PW-2 and the deceased were sleeping being the husband and wife. The accused came and required the door to be opened and when opened, he came in and assaulted the deceased. The evidence of PW-6 in the cross reveals that an earthen lamp was burning in the house of the deceased when the occurrence took place which leads credence to the evidence of PW-2 that she had seen the accused entering in and causing the assault. The evidence of PW-2 who is the eye witnesses to the occurrence had not been confronted by the defence in any manner even to the extent that no suggestion was made before the investigating officer that such submissions were not made by PW-2 before the police during the investigation. In the circumstances, we are to accept the evidence of PW-2 to be the eye- witness of the occurrence.

A contention is raised that PW-2 being the wife of the deceased is an interested witness and therefore her deposition should not be taken as it is. PW-2 may be a related witness but being a related witness on its own may not be concluded that the witness is also an interested witness. In its pronouncement rendered in the case of State of Rajasthan -vs- Kalki, reported in (1981) 2 SCC 725 wherein in paragraph 7, the Hon'ble Supreme Court has held as follows:

" Related is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness n the circumstances of a case cannot be said to be 'interested.'

In the said pronouncement, the Supreme Court had the occasion to distinguish between a related witness and an interested witness where a conclusion was arrived that every related witness may not be an interested witness unless evidence is available on record that the related witness has some other interest to implicate the accused concerned.

In the instant case, no such evidence is available on record that PW-2 being the wife of the deceased had any other interest to implicate the accused alone in the offence so as to bring home an advantage to the defence that PW-2 is also an interested witness and therefore her evidence could not be wholly relied upon. We further take note that in all other aspects, the evidence rendered by PW-2 had been corroborated by the other witnesses to the extent that PW-2 stated that her son Rohit had gone to his friend's house and when he came, he saw that his father had already died, where PW-6 in his deposition stated that he was near his house and upon returning home, he saw the accused coming out of their house and his father died. The evidence rendered by PW-6 that he had seen the accused coming out of their house also remains unconfronted. Other than the Amicus Curiae making a feeble attempt to say that as it was a dark night and, therefore, PW-6 could not have seen the accused coming out, no other attempt had been made to discredit the PW-6. The PW-6 and the accused person are neighbours who reside in the adjacent houses and therefore the familiarity of PW-6 with that of the accused cannot be denied and further they were in a visiting term.

The evidence of PW-3 to the extent that upon being informed about the quarrel when he came out, he saw the accused on the way shouting that he had cut and proceeded towards the house of his elder brother also corroborates the eye witness evidence rendered by PW-2 which again remains unconfronted. The medical evidence of PW-1 that there were multiple cut injuries of size of 4x2x1 inches extending from scalp to neck with a cut injury of vertebra and spinal cord and major vessels in the neck is also consistent with the evidence of PW-2 that the accused had entered the house and had cut the deceased. We also take note of that the seizure of the sword that was used in the offence was seized on being produced by the accused.

In view of the aforementioned materials on records, we cannot but to take the view that it is the accused alone who had assaulted the deceased causing the injury on his body resulting in his death.

From the nature of the injury that we have found on the body of the deceased, we again cannot but conclude that while committing the assault on the deceased, the accused had the intention to cause his death. Accordingly, we find that the act of the accused person falls within the first situation of Section 300 IPC, where the death caused is done with the intention of causing death. But again from the evidence on record and the conduct of the accused, other than the faint attempt to show that there was quarrel between the accused and the deceased, we find that the act of the assault on the deceased done by the accused cannot be brought within any of the four Exceptions to Section 300 of the IPC. Accordingly, we arrive at a conclusion that the accused had committed culpable homicide which amounts to murder.

In view of above, we find no infirmity in the conclusion of the learned Additional Sessions Judge, Sonitpur in its Judgment and order dated 18.01.2017 in Sessions Case No.89 of 2015 to the extent of convicting the accused appellant under Section 302 IPC. Accordingly, we also affirm the sentence imposed by the learned Sessions Judge for rigorous imprisonment for life and to pay a fine of Rs.3000/- in default thereof a simple imprisonment for another two months for the offence under Section 302 IPC.

As the evidence on record also shows that the accused had also committed house trespass in the house of the deceased in order to commit an offence which is punishable, amongst others, with imprisonment for life or with rigorous imprisonment for a term not exceeding 10 years, we are of the view that conviction of the accused appellant under Section 449 IPC also does not require any interference. Accordingly, the conviction imposed by the learned Additional Sessions Judge under Section 449 of the IPC is also upheld and the sentence of rigorous imprisonment for 7 years and a fine of Rs.2000/- in default there of simple imprisonment for another month for the offence under Section 449 IPC is also upheld. As provided by the learned Additional Sessions Judge, the sentences will run concurrently.

The appeal stands dismissed.

Send back the LCR.

Before parting with the record, we appreciate the valuable service rendered by Mr. R Sharma, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/- as legal fees be paid to him by the High Court Legal Service Committee upon production of a copy of his judgment and order.