AM Bujor Barua, J
1. Heard Mr. S Islam, learned Amicus Curiae for the appellant and also heard Mr. M Phukan, learned Additional Public Prosecutor for the State of
Assam.
2. By the order dated 24.06.2019, service of notice on the respondent No.2/informant was accepted but inspite of such service, none appears.
3. An ejahar dated 19.12.2013 was lodged by one Juwel Choi before the Officer-In-Charge of Sapekhati Police Station, inter-alia stating that at about
9 am on 19.12.2013, when his son Faruwel Choi went to the house of his neighbour Simon Bodhra, his nephew Abhiram Bodhra had beheaded his son
which had caused instantaneous death. Accordingly, the accused appellant was charged of having caused death of Faruwel Choi and was committed
under Section 302 of the Indian Penal Code.
4. PW-2, Juwel Choi, the informant in his deposition stated that the deceased Faruwel Choi was his son and he was aged about 11 years at the time of
his death and that the accused Abhiram Bodhra had killed him one year ago. At the time of the incident, the witness was doing the work of a daily
wage worker in the house of a person and while doing so he heard Simon Bodhra shouting at someone and came out and saw that his son Faruwel
Choi was lying at the courtyard of his house and he was beheaded. He also deposed that the accused appeared in the police station with a dao in his
hand. In cross, the witness stated that after the incident, he had seen the accused proceeding along the road with a dao in his hand but he did not know
where he went. Later on he came to learn that the accused appeared in the police station.
5. PW-3, Jackson Nag had stated that at the time of the occurrence, he was in his house and his sister-in-law told him that the accused had cut his
nephew i.e. the son of his sister. He further stated that his sister â€"in-law Sushila Nayak had told him about the incident which is again reiterated in
the cross by stating that no person except for Sushila Nayak had told him about the incident.
6. PW-4, Simon Bodhra in whose house the incident had taken place in his deposition stated that the deceased Faruwel Choi was his grandson
whereas the accused is his nephew. He stated that at around 9.30 am on 19.12.2013, he was in his house and his house is located about 10 Nals away
from that of the house of the accused where one Nal is equivalent to 12 feet. In his deposition, he stated that at the time of the incident, the deceased
Faruwel Choi was playing with a puppy on the courtyard of his house and the accused brought a Naga dao and beheaded him by hacking with a dao in
his presence. He further stated that the accused thereafter took the severed head to the bank of the pond and thereafter appeared in the police
station. But in cross, PW-4 stated that at the time of the incident, he was behind the house about 10 Nals away from the place of occurrence and his
house is between the place of occurrence and the place where he had been. He further stated in cross that the courtyard of the house where the
occurrence took place is not visible from behind the house.
7. PW-5, Jakobe Nayak stated that around 8.30 am on the given day, he was having meal in his house when he received the information that accused
had cut his nephew Faruwel Choi. Upon going to the house of Faruwel Choi, he saw him lying dead with his head severed. He stated that as the
accused fled he had chased him but as the accused was holding a dao, he got frightened and informed the police.
8. PW-6, Abhimanyu Das, the investigating officer in his deposition had stated that upon visiting the place of occurrence, he had drawn a sketch map
which was exhibited as Exbhit-6. He stated that upon being shown by the local people, he went to the nearby pond and recovered the severed head of
the deceased Faruwel Choi which was lying beside the pond. He also deposed that he conducted the inquest of the body and the detached head at the
place of recovery. In cross, PW-6 stated that the witness Simon Bodhra during investigation had stated that the accused had detached the head of
Faruwel Choi with a Naga dao but in the charge sheet, he had mentioned that the accused had used a kalam dao to commit the offence. He also
stated that the witness Jacobe Nayak had not stated before him that he had chased the accused and after seeing the dao in his hand, he informed the
matter to the police.
9. PW-1, Dr. Phanidhar Gogoi who is the doctor who conducted the post-mortem had stated the following injuries amongst others to have been found:
Wounds:
Two chop wounds on left side of scalp. Neck is cut at the level of thyroid.
Cranium and spinal canal:
Two chop wounds on right side of the scalp, deep into the scalp.
Membrane- congested.
Brain and spinal cord-congested, cut the spinal cord at the level of sixth vertebra.
The doctor opined that the death was caused by syncope and coma as a result of cutting of the neck vessels upon being detached from brain.
10. Mr. S Islam, learned Amicus Curiae appearing for the appellant contends that none of the prosecution witness could prove beyond reasonable
doubt that it is the accused who had caused the injury on the deceased because of which his head got severed.
11. Mr. M Phukan, learned Addl.P.P. on the other hand relies upon the evidence of PW-4 Simon Bodhra who is projected to be an eye-witness who
had seen the occurrence.
12. In order to examine the rival contention, we look into the evidence of PW-4. Although PW-4 in his examination-in-chief had specifically stated that
the accused brought out a Naga dao and beheaded the deceased Faruwel Choi by hacking him with a dao in his presence, but at the same time the
witness in his cross-examination had stated that at the time of the incident he was behind his house at a distance of about 10 Nals ( where one Nal is
equal to12 feet) and was away from the place of occurrence. He also deposed that his house is in between the place of occurrence and the place
where he was located and further that the courtyard of the house where the occurrence had taken place was not visible from behind the house where
he was located. In view of such statements being made in the cross-examination, we are not inclined to accept PW-4 to be an eye witness who had
seen the occurrence taking place.
13. PW-5, Jakobe Nayak who deposed that upon going to the house of the deceased, he had seen him lying dead with his head severed and as the
accused fled, he had chased him, but as he was holding a dao, he got frightened and informed the police. Although PW-4 deposed that he had seen the
accused fleeing away from the place of occurrence with a dao in his hand, but again PW-6, the investigating officer in his cross-examination had
stated that the witness Jakobe Nayak had not stated before him that he had chased the accused and after seeing the dao in his hand, he informed the
matter to the police. As it is stated by the investigating officer that PW-5 Jacobe Nayak had not stated before the police that he had seen the accused
fleeing away from the place of occurrence with a dao in his hand, we are of the view that a statement as such made in his examination-in-chief
appears to be an improvement at the stage of trial. But at the same time, PW-2 Juwel Choi in his deposition had stated that when he heard PW-4
Simon Bodhra shouting at someone, he came out from the house where he was working as a daily wage worker and saw his son Faruwel Choi lying
on the courtyard of his house with his head severed. But in cross, PW-2 specifically stated that after the incident, he saw the accused person
proceeding along the road from the place of occurrence with a dao in his hand but he did not know where he was going. But later on, he came to learn
that the accused had appeared in the police station. This piece of evidence in the deposition of PW-2 had not been confronted by the defence and as
such, the part of the evidence that PW-2 had seen the accused proceeding along the road from the place of occurrence with a dao in his hand
remained intact. If the accused was seen by a witness leaving the place of occurrence with a dao in his hand, we are of the view that under the
provision of Section 106 of the Indian Evidence Act, the burden would shift upon the accused to explain as to under what circumstance, he was
leaving the place of occurrence with a dao in his hand.
14. For the purpose, when we look into the statement of the accused under Section 313 of the Cr.P.C., we find that against a question that the head of
the deceased was lying at a distance of 4 Nals, accused answered that it was ‘yes’ and his head was kept at the pond side. Against a question
that the accused had surrendered at the police station with a dao in his hand, the accused stated that it was ‘yes’ and after killing the deceased,
he went to the Bimalapur police station. Against a question that the accused had confessed before the investigating officer that after killing the
deceased, he went to the nearby pond and washed his hand and dao after leaving the detached head at the pond side, the accused answered it to be
‘yes’.
15. A conjoint reading of the aforesaid answers of the accused clearly indicates an admission by the accused that it was he who had caused the injury
on the deceased as a result of which, his head was severed. Although an admission under Section 313 Cr.P.C. cannot be the basis for a conviction of
an accused but the statements made under Section 313 Cr.P.C. can always be used to corroborate the other evidence on record.
16. PW-2, Juwel Choi in his unconfronted evidence had stated that he had seen the accused leaving the place of occurrence with a dao in his hand
which shifts the burden to the accused under Section 106 of the Indian Evidence Act to explain under what circumstances, he was leaving the place
of occurrence with a dao in his hand. The explanation from the accused comes in his statement under Section 313 Cr.P.C. wherein he admit that he
had caused the injury upon the deceased which has severed his head. In the circumstance, we are of the view that the statement of the accused under
Section 313 Cr.P.C. can be used to corroborate and explain the circumstance which emanates from the evidence of PW-2 that the accused was
seeing leaving the place of occurrence with a dao in his hand.
17. In the aforesaid circumstance, we are of the view that prosecution has proved beyond all reasonable doubt that it was the accused appellant alone
who had caused the injury on the deceased with a dao which had resulted in the severance of his head and also further that the accused thereafter
took the severed head and kept it beside the nearby pond. Accordingly, we conclude that the conviction of the accused appellant under Section 302 of
the IPC as per the Judgment and order dated 19.02.2018 of the learned Sessions Judge, Sivasagar in Session Case 120 (S-C)/2014 and sentencing him
to a rigorous imprisonment for life and also to pay a fine of Rs.2,000/- in default further simple imprisonment for 2 months requires no interference.
18. The appeal stands dismissed.
19. Before parting with the record, we appreciate the valuable service rendered by Mr. S Islam, 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.
20. Send back the LCR.
