D. Biswas, J.@mdashThe appellant Sri Moni Gogol @ Khagen Gogol was tried by the learned Sessions Judge, Dibrugarh in sessions Case No. 115/96 u/s 302 IPC for causing death of Sri Phanidhar Saikia and Khargeswar Saikia, two brothers. On conclusion of trial, the learned Sessions Judge convicted the appellant u/s 302 IPC and sentenced him to rigorous imprisonment for life and to pay a fine of Rs. 2000, in default, to rigorous imprisonment for a further period of three months. Being aggrieved thereby, the appellant has preferred this appeal.
2. The prosecution case is that on 20.11.1994 Phani Saikia and Khargeswar Saikia, brothers of the informant had gone to the house of the appellant to hold a discussion over a dispute and the appellant caused their death by assaulting them with a dao.
3. The police on receipt of the ejahar lodged by PW-1 Sri Tulon Saikia registered a case and on conclusion of investigation submitted chargesheet u/s 302 IPC.
4. Before the learned Sessions Judge, 13 witnesses were examined by the prosecution to bring home the charge against the appellant while no evidence was adduced by way of defence. The learned Sessions Judge, after appreciation of the evidence on record, awarded the verdict of guilt.
5. Sri Ranjan Gogoi, learned Sr. counsel, submitted that the medical evidence show that both the deceased sustained multiple injuries of different dimension and character capable of being caused by a sharp cutting and pointed weapons and, therefore, the appellant who was holding a dao could be held liable for the incised injuries only. Sri Gogoi further urged that there being no evidence to show that the incised injuries were sufficient in the ordinary course of nature to cause death, the appellant could not be held responsible for causing the death of both the brothers all-alone.
6. The argument advanced by Sri Gogoi otherwise suggest that the defence is limited to the gravity and extent of the offence committed by the appellant and the quantum of punishment imposed. It would, therefore, be appropriate to advert to the question as to whether the conviction of the appellant u/s 302 IPC could be sustained or not.
7. The evidence of PW-1 Sri Tulon Saikia shows that on the previous day of the occurrence, he had an altercation with the appellant over a bi-cycle accident caused by the appellant. The appellant at the sight of the brothers of PW-1 fled away from the scene and PW-1 Tulon took the bi-cycle to his house. Next day, Robin Saikia, President of the Panchayat and Palowan Gogoi, co-villager, decided to settle the dispute. At about 2.00 P.M. Palowan Gogoi came to the house of this witness to find out whether villagers had gathered. All of them were waiting for the President to come while Palowan Gogoi went out to search for the President. A litter later, Palowan Gogoi came back and reported that both the brothers of PW-1 were lying dead in the courtyard of the appellant. PW-1 Tulon Saikia then informed the matter to the police. At about 6.30 P.M. Tulon Saikia along with police went to the house of the appellant where he found both his brothers lying dead with cut injuries. One hand of Phani Saikia was found severed. This witness in his cross-examination stated that he also saw daos in the hands of his deceased brothers.
8. PW-2 is the younger brother of the appellant. He stated that on the day of occurrence, on return from the field, he found his mother lying unconscious in the courtyard. He carried his mother inside and at that moment Pratima Bordoloi informed him to go their house where a quarrel had taken place. He went there and found Phani Saikia and Khargeswar Saikia lying dead in the Verandah of the appellant''s house. PW-3 Sri Prafulla Saikia was declared hostile. It was suggested to him that he had told the police that the appellant Moni Bordoloi told him that he had hacked both Phani and Khargeswar Saikia who came with daos to assault him. PW-13 the Investigating Officer also proved this contradiction. PW-4 Sri Pradip Bhhuyan went to the place of occurrence and found both the brothers lying dead. PW-5 Smt. Putuli Bordoloi is the mother of the appellant. She stated that deceased Phani Saikia and Khargeswar Saikia came to their house and one of them kicked her. She fell down and became unconscious. At this stage she was declared hostile and it was suggested to her that she told the police that she saw the appellant taking out a dao from his house and assaulted Khargeswar at the first instance and then Phani. She further stated that she could not bear with the scene and became unconscious. This suggestion given to her by the prosecution during the course of cross-examination has also been proved by P.W.-13, the I.O. The evidence of P.W.-6 Sri Lakheswar Saikia is of great importance in the sense that when he went to the house of the appellant where Khargeswar and Phani were lying dead, he saw the appellant Moni standing with a dao in his hand along with Chandra Bordoloi with a Khukri and Dudu Bordoloi with an Axe. Although he made an attempt to show that the assailant was not Moni alone, he, however, admitted during the course of cross-examination that he did not tell the I.O. about the presence of Chandra and Dudu with arms. This admission by the witness belies the presence of Chandra and Dudu. We are not adverting to the evidence of P.W.-7 Smt. Golapi Saikia, the mother of both the deceased, who went to the place of occurrence and saw the dead bodies of her two sons as she did not speak of anything about the appellant. However, she stated that she had seen the neck of Phani almost severed and the hand of Khargeswar torn apart.
9. P.W.-9 is Palowan Gogoi who was taking a leading part in the settlement of the dispute. He had seen Khargeswar and Phani lying dead in the courtyard of Moni Bordoloi who was standing nearby with a dao in his hand. This witness testified that the appellant was murmuring "Palowan I have killed, I have killed". This witness also saw a mechi dao in the hands of Moni Bordoloi. The statement of this witness cannot be disregarded since he appears to be a disinterested witness. His statement that the appellant was uttering that he had killed both the brothers gains support from the state of P.W.-11 Sri Chandra Kanta Duwarah who also deposed that he found the appellant sitting on the verandah smoking cigarette and uttering to himself he had hacked Phani and Khargeswar.
10. The evidence of the witnesses recapitulated above as a whole indicate that it was Moni Bordoloi who alone caused the death of both the brothers. The defence could not elicit anything out of the witnesses to disturb their credibility. The contradictions and omissions proved by the prosecution with regard to the statement of P.Ws.-3 and 5 also lend support to the prosecution case.
11. Mr. Gogoi, learned counsel, argued that it was not at all possible for the appellant alone to inflict both the incised and stab injuries and as such, it cannot be legally concluded that it was the appellant who was responsible for causing the death of Phani and Khargeswar. It would be convenient at this stage to refer to the injuries sustained by the deceased brothers. The injuries as evidenced by the Medical Officer are as follows:-
12. Injuries found on the person of the deceased Phani Saikia is reproduced below:-
1. An obliquely placed incised wound present on flexor surface of the left wrist joint directed downwards and towards medialy size 8 x 3 cm. with incised the lower and of both radius and ulna bone.
2. A horizontally placed stab wound on sternal notch size 3 x 2 cm. with penetrating the anterior wall of trochlea.
3. A vertically placed stab wound on middle part of back of the right thigh size 3 x 2 cm. muscle deep.
4. A horizontally placed incised wound on lower part of back of the thorax on right side size 4 x 2 cm. muscle deep.
5. An incised wound present on right side of occipital area of scalp in the sagittal plane size 10 x 2 cm. brain deep.
6. An incised wound 2 cm. away towards right from the injury No. 5 in the same place size 7 x 2 cm. brain deep.
7. An obliquely placed incised wound on right side of scalp extend from upper part of right ear up to 3 cm. distal to the tip of the right mastoid process size 8 x 2 cm. brain deep.
8. An oblique, placed incised wound extend from right angle of the mandible up to lower part of neck on right side with incised the skin, muscles great vessels or right side or neck, right angle of the mandible, cervical 4th and 5th vertebrae and spinal cord, trachea and oesophagus.
9. An obliquely placed incised wound 2 cm. above the injury No. 8 in the same plane extend from middle part of right cheek up to middle part of the neck on right side incised the skin, muscle, and great vessels of neck on right side and incised the right maxilla, cervical 3rd and 4th vertebrae and spinal cord and trachea and oesophagus.
Cranium and spinal canal:
Scalp - Incised as described. Skull-incised as described under injury No. 5 to 9.
Vertebrae - Incised as described - Membrane - Incised under injury No. 5 to 9.
Brain - Incised under injury No. 5 to 7.
Spinal Cord - Incised as described.
Examination of neck - no ligature mark.
Incised wound as described.
Examination of Thorax Wall - Incised as described.
Trachea - Incised and stab as described others were healthy.
Examination of Abdomen Oesophagus - Incised. Others healthy. Organs of generation- Healthy.
Opinion: Cause of death was shock and haemorrhage resulting from injuries sustained. All injuries were antemortem and homicidal in nature.
13. Injuries found on the person of the deceased Khargeswar Saikia is also reproduced below:-
1. A horizontally placed incised wound present on dorsum of the left hand size 2 x a cm. skin deep.
2. A stab wound present on right side of the chest in the anterior axillary line on 5th etc. space size 3 x 2 cm. thoracic cavity deep.
3. A stab wound present on left hypochondrial area 4 cm. below the midpoint of left costal cartilage 3 x 2 cm. abdominal cavity deep.
4. A stab wound present on midline of the abdomen 6 cm. above the umbilicus 3 x 2 cm. abdominal deep.
5. A stab would present on right side of the back of the thorax in illiuc space, 10 cm. away from midline 3 x 2 cm. thoracic cavity deep.
6. A vertically placed incised wound present on left side on back of the thorax in between 8th to 10 illiuc space and 3 cm. away from midline 4 x 1 muscle deep.
7. A vertically placed incised wound 2 cm. lateral to the injury No. 6.4 x 1 muscle deep.
8. An obliquely placed incised wound present on back of the neck at the level of C 3 vertebrae, directed downwards and towards left 18 x 4 cm. and incised the underlaying skin muscles, great vessels, C3, vertebrae, oesophagus and trachea leaving only a tag-of skin in front.
9. An obliquely placed incised wound extend from 2 cm. in front of the middle of left ear, directed upward and backward up to occipital area of scalp 20 x 2 cm. brain deep.
10. An incised wound on left side of the scalp 4 cm. above the injury No. 9 and parallel with the injury which extend from left zygomatic area 3 cm. away from lateral angle of left eye up to left parietal area of scalp size 20 x 2 cm. brain deep.
11. A horizontally placed incised wound present on left front to parietal area of scalp 15 x 2 cm. brain deep.
Examination of cranium and spinal canal.
Scalp :- Incised as described under injury No. 9, 10 and 11.
Skull :- Incised left Zygoma, left temporal, occipital, left parietal frontal bone under injury Nos. 9, 10 and 11.
Vertebrae :- 3rd clavicle incised under injury no.8 Brian - Incised under injury Nos. 9, 10 and 11.
Examination of thorax Wall Stab and incised wound as described. Right pleurae punctured under injury Nos. 2 and 5. Cavity contain 150 ml. of blood.
Trachea - Incised under injury No. 8. Right lung was punctured under injury No. 2 and 5. Stomach punctured on anterior wall under injury No. 4 contained undigested rice, large intestine was punctured the descending colon.
Opinion - Cause of death was shock and haemorrhage resulting from injury sustained. All injuries were antemortem and homicidal in nature. Time since death 12-24 hours. These injuries were sufficient in the ordinary course of nature.
14. The injuries quoted above show that both the deceased sustained multiple incised and stab injuries. Phani had sustained as many as nine injuries while Khargeswar sustained ten injuries. Most of the injuries are incised in nature. The multiple injuries of different dimension and nature suggest ghastly manner in which the crime has been committed. The evidence of the witnessed referred to above, establish beyond any doubt that Moni was standing near the dead bodies with a mechi dao. As is commonly known mechi dao is a crescent shape sharp cutting weapon with pointed edge. The nature of injuries caused by a mechi dao will depend upon the projection in which it is used. It is capable of causing both the incised as well as stab injuries. The deceased Phani sustained seven incised injuries and two stab injuries while Khargeswar sustained seven incised injuries and four stab injuries. Therefore, there cannot be any doubt that it was the appellant Moni who had caused the above injuries with the ''mechi dao''. The names of Chandra and Dudu was first introduced as the co-assailants by P.W.-6 during the course of trial. It was obviously with a view to reduce the gravity of the offence committed by Moni. The explanation given by P.W.-6 Lakheswar that he did not name Dudu and Chandra to the police as he was not asked anything about them by the I.O. merits no consideration. In our considered opinion, it was a belated attempt to save the appellant. The evidence on record as a whole unerringly show that it is the appellant who had caused the death of both the brothers. The omissions and contradictions in the evidence of P.W.-3 Prafulla, P.W.-5 Putuli and P.W.-6 Lakheswar Saikia duly proved by P.W.-13 the I.O., further reinforce the above conclusion. The impugned judgment, obviously, calls for no interference.
15. In the result, the appeal is dismissed.
