Khilendra Konwar vs The State Of Assam

(M. Zothankhuma, J)

Heard Mr. N.K. Barua, learned Amicus Curiae, for the appellant. Also heard Ms. B. Bhuyan, learned Senior Counsel and Additional Public Prosecutor, Assam, assisted by Ms. R. Saloi, learned counsel for the State.

This is an appeal from jail against the impugned judgment dated 19/01/2024 passed by the learned Sessions Judge, Dibrubarh, in Sessions Case no. 183/2021, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 5000/-, in default, simple imprisonment for 6 months.

The brief facts of the case is that an FIR dated 03/08/2021 was submitted by Prosecution Witness- 1 (PW-1), who is also the informant, to the Officer-in-Charge of the Bamunbari Police Outpost stating that around 7 a.m, the appellant had struck his wife late Bijay Laxmi Konwar, on 3 or 4 parts of her body with a sharp weapon and killed her. Pursuant to the FIR, Bamunbari OP GDE No. 46 dated 03/08/2021 was entered and thereafter, the same was sent to the Officer-in-Charge of Tingkhong Police Station for registering a case. Accordingly, Tingkhong P.S. Case No. 178/2021 dated 03/08/2021 under Section 302 IPC was registered. After the Investigating Officer (PW-10) had completed the investigation, charge sheet was submitted against the appellant, on a prima facie case under Section 302 IPC having been found established against the appellant.

Charge was thereafter framed by the learned Trial Court against the appellant under Section 302 IPC, to which he pleaded not guilty and claimed to be tried.

The learned Trial Court thereafter examined 11 Prosecution Witnesses and the appellant under Section 313 Cr.P.C. The learned Trial Court having found that the prosecution had been able to establish the guilt of the appellant beyond reasonable doubt, for having committed the offence punishable under Section 302 IPC on the basis of the evidence of two eyewitnesses, which was corroborated by the evidence of the informant and the Doctor, who had examined the dead body, convicted the appellant under Section 302 IPC and sentenced him accordingly, as has been stated in the foregoing paragraphs.

The learned Amicus Curiae submits that there is little room to maneuver for the appellant in the present case, inasmuch as, there are two eye witnesses, who had seen the assault being made by the appellant with a dao on the deceased, besides the informant having seen the deceased appellant chasing the eye witnesses (PW-2) with a dao, just prior to the appellant killing the deceased. He also submits that the assault on the deceased with a dao has been corroborated by the injuries described in the Post-Mortem Examination Report made by the Doctor (PW-9), who had examined the dead body. Further, the examination of the appellant under section 313 Cr.P.C. shows that he had admitted to striking the deceased. He further submits that the reason for the assault made by the appellant on the deceased, has been reflected in the last answer given by the appellant to the last question asked, during examination of the appellant under section 313 Cr.P.C, wherein he believed that the deceased was practicing witchcraft, because of which the appellant was suffering immense body pain. Further, the appellant had alleged that the deceased had first hit him on the head, while the son of the deceased had thrown a brick at the appellant, due to which the assault took place.

Ms. B. Bhuyan, the learned APP, submits that the evidence of PWs- 1, 2 and 5 prove that the appellant was the person who had killed the deceased. Further, the Doctor's evidence corroborated the fact that the deceased had died due to the injury inflicted upon the deceased by means of a dao. The learned APP also submits that the appellant had surrendered in the Police Station along with the dao, which had been seized by way of the seizure list which was exhibited as Ext. 2. She also submits that the FSL report on the dao and the gamosa, proved that human blood of the same type was present in both the materials, which had been seized by the Police. She submits that as the above facts have clearly proved the guilt of the appellant, the impugned judgement should be upheld.

We have heard the learned counsels for the parties.

The evidence of PW-1, who is the informant and the cousin brother of the appellant, is to the effect that while he was in his field at around 8 a.m on 03.08.2021, he saw the appellant chasing his son (PW-2) with a dao. Thereafter, the appellant went inside the compound of Tapan Dawri (PW-6) and then came towards their house and struck his wife. He was thereafter informed by his son (PW-2) that the appellant had struck his wife at the entrance of the kitchen. On rushing to his house, he saw his injured wife with injuries on her head, face and back. Though she was taken to Tiloijan Hospital, she died.

The evidence of PW-2 is to the effect that the appellant chased him with a dao and he tried to take shelter in the house of Tapan Dawri (PW-6). During that time his mother was cutting vegetables. Seeing PW-2 running, his mother said something which he did not hear clearly. When the appellant heard the voice of PW-2's mother, he went inside their compound. PW-2 also went inside his compound and then saw the appellant catch hold of his mother by her hair and cut his mother's face, head and back with a dao. Though they had taken the deceased to the Tiloi Dispensary, her mother died.

The evidence of PW-3 is to the effect that he heard a commotion while working in the field. On going towards the house where there was a commotion, he saw the appellant fleeing and his sister-in-law lying on the ground with injuries on her face, head and back. Though she was taken to the hospital, she died.

The evidence of PW-4 is to the effect that PW-2 told her that the appellant had struck his mother. On going to the place of occurrence, she saw injuries on the head, back and face of the deceased.

The evidence of PW-5 is to the effect that he knew the appellant as well as the deceased, who was her daughter-in-law. PW-5 stated that on the day of the occurrence, the deceased was cutting vegetables in front of the kitchen, while she was in the house. The appellant then came from the back and cut her daughter-in-law with a dao.

The evidence of PW-6 is to the effect that he heard that the appellant had assaulted the deceased and that the appellant had thereafter given himself up before the Police in the Police Station.

The evidence of PW-7 is to the effect at about 11 a.m on 03.08.2021, while he was posted at the Rajgarh Outpost as Sentry, the appellant came with a bloodstained dao and told him that he had cut one lady. As the occurrence was under the Bamunbari Outpost, S.I. Rudra Kanta Bora was informed, who came and seized the dao from the appellant in his presence, which was exhibited as Material Ext-1. PW-7 also identified the seized dao in the Court.

The evidence of PW-8 is to the effect that he was made witness to the seizure of the dao in the Rajgarh Outpost and that he had signed on the Seizure List. He also identified the dao in the Court.

The evidence of PW-9, who is the Doctor who performed post-mortem examination on the deceased on 03.08.2021 is to the effect that he found the following injuries on the victim :-

The evidence of PW-10 is to the effect that he seized one bloodstained gamosa (towel) and bloodstained soil. He also seized the bloodstained dao. Inquest was conducted on the dead body of the deceased and thereafter the dead body was sent for post-mortem examination. He also collected the FSL examination report with regard to the bloodstained dao and the gamosa. As he found a prima facie case established against the appellant under Section 302 IPC, he submitted the charge sheet.

The evidence of PW-11 is to the effect that she was the Senior Scientific Officer, Serology Division, Directorate of Forensic Science, Assam, Kahilipara, Guwahati and that on examination of the materials sent to her, she found that the dao and the gamosa gave positive test for human blood.

The examination of the appellant under Section 313 Cr.P.C shows that he admitted to hitting the head of the deceased once, while in respect of another question, the appellant stated that he did not strike the deceased many times. The explanation given by the appellant as to the reason for assaulting the victim was on the ground that the deceased had been practicing witchcraft upon him, due to which he suffered from immense body pain. Further, the deceased had told him that she would kill him and had hit him on the head, while her son had thrown a brick at him. Thus to save himself, he had given one blow with the dao on the deceased.

A perusal of the evidence of the Prosecution Witnesses shows that there is nothing to doubt the truthfulness of the evidence of the eyewitnesses, who are PW-2 and PW-5, who had seen the appellant striking the deceased with a dao. Further, PW-1 had also seen the appellant chasing PW-2 with a dao. PW-3 had seen the appellant fleeing from the place of occurrence.

The evidence of the Doctor (PW-9) corroborates the evidence of the PW-2 and PW-5, with regard to the appellant assaulting the victim with a dao. The explanation given by the appellant during his examination under Section 313 Cr.P.C corroborates the evidence of the eyewitnesses that he was at the place of occurrence and had assaulted the victim. The FSL report has also corroborated the fact that the dao was the weapon used for killing the deceased.

On considering all the above facts, we are of the view that there is no infirmity with the finding of the learned Trial Court that the Prosecution had been able to prove the guilt of the appellant, for committing an offence punishable under Section 302 IPC. Accordingly, we do not find any ground to interfere with the impugned judgment dated 19/01/2024 passed by the learned Sessions Judge, Dibrubarh, in Sessions Case no. 183/2021.

The appeal is accordingly dismissed.

Send back the TCR.

In appreciation of the assistance provided by the learned Amicus Curiae, his fees should be paid by the Gauhati High Court Legal Services Committee, as per norms.