Judgment & Order (Cav):

Susmita Phukan Khaund, J.

1. This appeal is directed against the judgment and order dated 30.04.2022, passed by the learned Sessions Judge, Kamrup at Amingaon in Sessions Case No. 266 of 2014, convicting the appellant under Section 302 of the Indian Penal Code, 1860 (IPC for short) and sentencing him to undergo Imprisonment for Life and to pay a fine of Rs.10,000/- (Rupees Ten Thousand) with default stipulation.

Factual Matrix :-

2. The deceased Janaki Basumatary was proceeding to the field to provide tea and snacks to her son at around 6.30 A.M. on 01.08.2022. Janaki Basumatary was intercepted by Smt. Prava Basumatary (hereinafter referred to as the appellant or the accused), who attacked her with a dao, causing grievous injuries on her neck. The victim's son Janata Basumatary as well as the O/C of Boko Police Station, were informed about the incident by the village headman Shankar Rava over telephone and on receipt of the telephonic information, Boko P.S. GD entry No. 2 dated 01.08.2012 was registered and the Investigating Officer (IO in short) was entrusted with the investigation.

3. The IO went to the place of occurrence at about 8.40 A.M., prepared the sketch map and searched for any weapon of offence. He could not find any weapon of offence. He saw the victim's body lying in a pool of blood at the place of occurrence (PO for short). However, he took pictures of the body and held inquest of the body, in presence of witnesses. In the PO itself, he received an information from the O/C of Boko P.S. that the accused Prava Rani Basumatary surrendered at the Boko P.S. and admitted that she committed the offence and threw the dao at the backside of the latrine of her father-in-law Amarika Basumatary's house and the O/C asked him (IO) to recover the dao. The IO immediately proceeded to Amrika Basumatary's house at village No. 2 Sakhati and searched for the dao and seized the same in presence of witnesses. He recorded the statements of the witnesses present at the time of seizure of dao. Thereafter, he returned to the police station along with the body of Janaki Basumatary and forwarded the body for Postmortem examination at GMCH.

4. At about 11.45 A.M., the O/C of Boko P.S. received a written FIR from complainant Janata Basumatary and registered Boko P.S. case No. 315 (8)/2012 under Sections 341/302 of the IPC and the IO continued with the investigation, after closing the MCD and opening the CD for investigation. He recorded the statement of the accused at the P.S. and arrested her and thereafter, the accused was produced before the CJM, Kamrup, Guwahati. Meanwhile, the IO retired from service on 31.08.2012 and handed over the Case Diary to the O/C of Boko Police Station. His successor Mozibur Rahman collected the PM report and submitted charge sheet against the accused.

5. The case was then committed for trial by the committal Court on submission of charge sheet. The appellant who was already on bail, appeared before the learned Trial Court. At the commencement of trial, a formal charge under Sections 341/302 of the IPC was framed and read over and explained to the accused, who abjured her guilt and claimed innocence.

6. To substantiate its stance, the prosecution adduced the evidence of 12 witnesses including the Medical Officer (MO for short) and the IO and exhibited several documents as well as the weapon of offence. The witnesses and the exhibits are described as follows :-

                  

                  

                  

7. Heard Mr. P. Kataki, learned counsel for the accused-appellant and Ms. B. Bhuyan, learned Additional Public Prosecutor assisted by Ms. R. Das, learned counsel for the respondent State.

Arguments for the Appellant :

8. Learned counsel for the appellant laid stress in his argument that the prosecution has failed to prove beyond a reasonable doubt that the appellant has committed the offence of murder. The contradictions and the discrepancies surfacing from the evidence extend a benefit of doubt to the appellant.

Arguments for the Prosecution :-

9. Per contra, learned Additional Public Prosecutor laid stress in her argument that this is an open and shut case. No contradictions as per Section 145 of the Indian Evidence Act, 1872 (Evidence Act for short) qua Section 162 of the Code of Criminal Procedure, 1973 (CrPC for short) could be elicited through the cross-examination of the witnesses. No infirmity is discernible in the decision of the learned Trial Court. It is contended that the statements of the appellant under Section 313 of the Cr.PC were evasive. This appeal is bereft of merits and is liable to be dismissed.

Decision of the Trial Court :-

10. The learned Trial Court acquitted the appellant of charges under Section 341 of the IPC. The Trial Court held that the evidence of the sole eye witness PW-2, Sri Dibakar Basumatary was found to be reliable. It was held that PW-2 categorically stated that while he was returning from the paddy field, riding his bicycle, on the road near Bhakatpara Muga Farm, he saw Janaki Basumatary standing on the road and chatting with the appellant. As he crossed the ladies who were chatting, he immediately heard a groan, from behind and he looked back and saw Janaki Basumatary lying on the road and Prava Rani Basumatary inflicting blows on Janaki with a dao (machete). Thereafter, Prava Rani Basumatary left the PO. He immediately rushed to the house of Piyari Mohan Rabha and informed him about the incident. This evidence of PW-2 was substantiated by the evidence of PW-4 Piayari Mohan Rabha.

11. The son of the deceased was informed and he lodged the FIR. The husband of the deceased rushed to the spot. The police was also informed and the Investigating Officer (IO for short) came to the PO and embarked upon the investigation. It was also held by the learned Trial Court that the injuries described by PW-2 and the other witnesses have been proved by PW-7, Dr. Amar Jyoti Patowary, who performed the Postmortem. It was held that the defence could not rebut the evidence and justify why the evidence of PW-2 could be disbelieved and why would PW-2 falsely implicate the appellant.

12. The Trial Court relied on the decision of the Supreme Court in Gulam Sarbar-vs-State of Bihar in Criminal Appeal No. 1316 of 2012 wherein it has been held that the number of witnesses is not important but the quality of the witnesses is important. It was also observed by the Court that conviction can be based on the testimony of the sole eye witness as per Section 134 of the Evidence Act. There is no legal impediment to conviction based on testimony of single witness.

13. The learned Trial Court held PW-2 to be the key witness whose evidence was substantiated by the evidence of the other witnesses. The appellant was thereby convicted under Section 302 of the IPC and sentenced to Imprisonment for Life.

Analysis, Reasonings and Conclusion :-

14. Now, the question that falls for consideration is that whether the Trial Court has erred in convicting the appellant. To decide the case in its proper perspective, the evidence is reappreciated.

15. The eye witness, Dibakar Basumatary deposed as PW-2 that on the day of the incident at about 5 A.M., he was returning from the paddy field after spraying manure in his paddy field. At that time, on his way back on the road near Bhakatpara Muga Farm, he noticed Janaki Basumatary and Smt. Prava Rani Basumatary engrossed in a discussion. Janaki was carrying a Jakoi (fishing implement) and a tiffin box. As soon as he crossed the ladies, he immediately heard a groan from behind, and he looked back and saw Janaki Basumatary lying on the road and Prava Rani Basumatary/appellant inflicting blows on Janaki with a dao. After some time, the appellant left the PO and she started following him (PW-2). She called him, but he did not respond as he was terrified and he immediately went to Piyari Mohan Rabha’s house and informed him about the incident. Meanwhile, the villagers assembled at the PO and he too went along with them.

16. This evidence of PW-2 is corroborated by the evidence of PW-4, Piayri Mohan Rabha, who testified that on 01.08.2012 at about 7.30 A.M., he received the information from Janaki Basumatary and immediately rushed to the PO and found the body of Janaki Basumatary on the roadside near Bhakatpara Muga Farm. Many people including the Gaon Burah had already assembled at the PO. The statement of PW-4 that he received information from Janaki Basumatary appears to be wrongly typed, as in his cross-examination he stated that he learnt about the incident from Dibakar Basumatary (PW-2) who came to his house and informed him about the incident.

17. No contradictions could be elicited through the cross-examination of PW-2 or the crossexamination of PW-4.

18. PW-4 denied the suggestion of the defence counsel that PW-2 had killed Janaki Basumatary and then he came to his (PW-4’s) house after committing the crime. This suggestion was however not made to PW-2.

19. PW-1, Janata Basumatary is the informant and the son of the deceased and he deposed that on the date of the incident, he was informed by Pradip Khaklary that the appellant assaulted his mother with a dao. He immediately rushed to the PO and saw his mother’s body lying on the roadside, near Bhakatpara Muga Farm. He noticed several cut injuries on several parts of her body. He lodged the FIR, Exhibit-1. He proved his signature as Exhibit-1(1). He proved his signature on the printed form of FIR as Exhibit -2(1).

20. PW-1 further deposed that the police arrived at the PO and held inquest on the dead body. He proved his signature on the inquest report as Exhibit-3(1). He further deposed that the witness Dibakar Basumatary (PW-2) told him that while he was returning from the paddy field, he saw his (PW-1’s) mother engrossed in a discussion with the appellant on the road and when he was proceeding ahead, he heard a sound and looked back and saw the appellant attacking his mother with a dao. Thus, the evidence of PW-1 clearly reveals that he was informed by PW-2, the eye witness, who saw the appellant inflicting dao blows on the deceased. The evidence of PW-1 and PW-2 can be held to be direct evidence as per Section 60 of the Indian Evidence Act, 1872 (Evidence Act for short).

21. PW-3 Sri Lalit Basumatary is the husband of the deceased, who stated that on 01.08.2012 at about 6-7 A.M., the appellant inflicted dao blows on his wife, on the road side, near Bhakatpara Muga Farm. His wife sustained injuries on her neck and different parts of her body. Pradip informed him about the incident and he rushed to the PO and found his wife already lying dead on the roadside. Thereafter, the police arrived. The appellant along with a dao surrendered before the police. Police visited the PO and held inquest. He proved his signature on the inquest report as Exhibit-3(1). The cross-examination of PW-3 is not noteworthy.

22. The evidence regarding the injuries sustained by the deceased has been substantiated by the evidence of the Medical Officer Dr. Amar Jyoti Patowary. He deposed as PW-7 that on 01.08.2012 while serving as Associate Professor in the Department of Forensic Medicine, GMCH, he performed Postmortem on the body of Janaki Basumatary, a female aged 50 years on police requisition vide Boko P.S. GDE No. 02 dated 01.08.2012. He conducted the autopsy at 3 P.M. and found the following :-

                   “…Injuries

                   (i) Chop wound with separation of right index finger in proximal phalanx along with one incised wound of size 3 cm X 1cm X muscle deep in dorsam of proximal palm the right middle finger.

                   (ii) Incised wound of size 15cm X 2cm bone deep in left face with separation of left ear in lower half and fracture of left ramus of mandible and mastoid.

                   (iii) Chopped wound of size 32cm X 11cm in left side of the neck with dissection of vertebrael column at the level of the 6th and 7th cervical vertebrae and dissection of trachea and part of larynx, oesophagus and all the sub-tissue of the neck on the left side.

                   (iv) Stab wound of size 6cm X 2.5cm bone deep over left shoulder and incised wound of size 7cm X 3cm muscle deep on left side of root of the neck with a gap of 3 cm in between the 2 wounds.

                   (v) Incised wound of size 15cm X 3cm bone deep on left face over left ramus of mandible.

                   (vi) Incised wound of size 16cm X 3cm bone deep in the middle and just above the injury no. 5 and then both joined together.

                   (vii) Incised wound of size 5 cm X 0.5cm muscle deep on right side of the neck 7 cm above clavicle.”

23. According to the opinion of the doctor, all the injuries were ante-mortem, caused by sharp cutting, moderately heavy weapon and homicidal in nature. The time of death was 6-12 hours. PW-7 proved his signatures on the Postmortem report as Exhibit-5(1) and 5(2). He also proved his signatures on the inquest report as Exhibit-3(5) and 3(6). He proved his signatures on the dead body challan as Exhibit 8(1) and his signature on the forwarding letter as Exhibit-7(1).

24. The evidence of PW-7 clearly reveals that the victim indeed sustained several cut injuries on her face and neck. Her mandible was also fractured. The incident occurred at about 7 A.M. and the Postmortem report clearly reveals that the time since death was 6-12 hours. Some incised wounds were also detected by PW-7.

25. Thus, it can be held that the evidence of PW-7 has conclusively proved that the deceased was relentlessly hacked to death with nothing but a dao. There is not even an iota of doubt that the deceased died in the morning of 01.08.2012. This fact substantiates the evidence of PW1, PW2, PW3 and PW4, as well as the evidence of other witnesses.

26. The Gaon Burah, Sri Shankar Rava deposed as PW-5 that the incident occurred at about on 01.08.2012 at around 7 A.M. Dibakar Basumatary informed him about the assault which took place on the road adjoining Gopalpur Sericultural Farm. He immediately went to the PO and saw the dead body of Janaki (mother of the informant). He noticed cut marks on her left shoulder, cheek and ear. A finger was also severed off. He informed the police over phone and police arrived and examined the dead body, held inquest and took his signature. He proved his signature on the inquest report as Exhibit-3(3). He further deposed that the police took charge of the dead body. The police was also informed at that time that the appellant threw the dao in the bamboo thicket owned by her father-in-law Amrika Basumatary. The police recovered the dao from the bamboo thicket and seized the same in their presence. He proved his signature on the seizure list as Exhibit-4(1).

27. It is also apt to mention that no contradictions could be elicited through the crossexamination of this witness as per Section 145 of the Evidence Act vis-a-vis Section 162 of the CrPC, but his evidence corroborates and substantiates the evidence of PW-1, PW-2, PW-3, PW-4 and PW-7.

28. Sri Lohit Tulsiary deposed as PW-6 that the incident took place on 01.08.2012. At about 6.30 A.M., he heard a commotion raised by Piyari Mohan Rabha/PW-4 and Prabhakar Basumatary/ PW-10 and others. He immediately went out and rushed to the PO and saw the dead body of Janaki Basumatary lying on the road side, with cut injuries on her left shoulder, near left cheek and neck. The body was lying in a pool of blood and he also noticed that her fore-finger was severed off and was found lying near the body. The Gaon Burah, PW5 was present along with the other villagers. The Gaon Burah informed the police who came and held inquest. He proved his signature on the inquest report as Exhibit-3(4). He further noticed that the weapon of offence was recovered after a couple of hours, around 9.30-10 A.M. from the bamboo thicket in the premises of Amrika Basumatary’s house. He proved his signature on the seizure list relating to seizure of dao as Exhibit-4(1).

29. The conspicuous part of the evidence in this case is that no contradictions could be elicited through the cross-examination of the witnesses vis-à-vis the cross-examination of the IO as per Section 145 of the Evidence Act qua Section 162 of CrPC. This prompted the learned Additional Public Prosecutor to submit that this is indeed an open and shut case.

30. The evidence of PW1 to PW7 is also corroborated and substantiated by the evidence of the other witnesses. Smt. Bharati Basumatary, PW8 was declared a hostile witness, but her evidence clearly reveals that on the day of the incident, she heard that the appellant had caused the death of Janaki by inflicting cuts. She was cross-examined by the prosecution, but that part of her evidence which corroborates the prosecution evidence is sufficient. PW8 is a co-villager and so is PW9, Kulendra Basumatary. The evidence of PW9 reflects that on the day of the incident, at about 7.30 a.m., his wife informed him about the incident. He immediately rushed to the place of occurrence i.e., the PWD road near the Muga farm, and he saw the deceased lying on the ground with cut injuries on her left cheek, left side of her ear and neck, and her forefinger was chopped off and was lying near the body. She was bleeding profusely and she was already dead by then.

31. PW9 also noticed the villagers who had assembled at the place of occurrence. Later, he heard from the villagers that the accused caused the injuries. In sync with the evidence of PWs 8 and 9, another witness who is the nephew of the accused, Sri Prabhakar Basumatary, deposed as PW10 that the informant is a co-villager. The incident occurred about five years ago. One morning while he was at home, he heard a commotion in the locality and he went to the place of occurrence near the Muga farm. Many villagers were assembled and the accused was also present. He saw the dead body which was wrapped with a bamboo mat. The police interrogated him and took his signature on the inquest report. He proved his signature as Exhibit-3(7). Sri Amrika Basumatary, PW11, however, did not identify the appellant as his daughter-in-law, but he stated that the appellant/accused is his neighbour. He further deposed that he heard from the villagers that the accused killed the deceased.

32. All the witnesses were cross-examined, but no contradictions could be elicited through the cross-examination of the witnesses vis-à-vis the cross-examination of the I.O. It has surfaced through the cross-examination of PW6 that the appellant admitted at the police station that the dao was lying on the backside of the compound of Amrika Basumatary. This dao was seized. The dao was stained with blood. He proved his signature on the seizure list as Exhibit-4(1) and PW5 also identified his signature on the seizure list relating to seizure of dao as Exhibit-4(1).

33. The weapon of offence as stated by PW6 was seized by the I.O., Shri Dharmeswar Basumatary, who deposed as PW12 that the accused Prabha Rani Basumatary surrendered at the Boko P.S and disclosed that after committing the offence, she threw the dao at the back side of the latrine of her father-in-law, Amrika Basumatary’s house, and the O.C. asked him ( PW-12) to seize the dao. He further stated that he went to Amrika Basumatary's house and seized the dao in presence of witnesses vide Exhibit-4. He proved his signature on the seizure list as Exhibit-4(3). The fact that the dao was seized in connection with this case has been proved by the I.O. which has been corroborated by the evidence of PW6. PW6 who was present during the seizure of the dao proved his signature on the seizure list as Exhibit 4(1) and he categorically stated that the weapon of offence was recovered from the bamboo thicket within Amrika Basumatary's premises. Through crossexamination of PW6 and the cross-examination of PW12, the defence failed to controvert the fact that the dao was seized vide Exhibit-4, the seizure list. PW12 also deposed that on 01.08.2012, the O.C. received the information that the appellant assaulted Janaki Basumatary with a sharp weapon at the PWD road in front of Muga farm which resulted in the death of Janaki Basumatary.

34. After receiving the information, the O.C. registered Boko P.S. GD entry No. 2 dated 01.08.2012 and entrusted him with the investigation. He went to the place of occurrence at 8:40 a.m. and prepared the sketch map, vide exhibit-10. He proved his signature on the sketch map as Exhibit-10(1). He noticed that the body of the deceased was lying in a pool of blood and he noticed injuries on different parts of the body. He did not find any weapon of offence at the place of occurrence and he took photographs of the body and held inquest of the body in presence of witnesses. He proved his signature on the inquest report as Exhibit- 3(8). He further deposed that while he was at the place of occurrence, he received information over phone from the O.C. of Boko P.S. that the appellant had surrendered at the Boko P.S. and disclosed that she committed the offence and threw the dao at the backside of the latrine of her father-in-law, Amrika Basumatary's house.

35. He (PW-12) further deposed that he went to Amrika Basumatary's house at village No. 2 Sakhati and recovered the dao in presence of the local people, and as shown by Bharati Basumatary. The dao was lying at the basti campus of Amrika Basumatary’s house and he seized the same in presence of witnesses vide Exhibit-4. Thereafter, he returned to the police station along with the body and forwarded the body to GMCH for autopsy. At about 11:45 a.m., the O.C. received a written ejahar from Janata Basumatary and registered Boko P.S. case No. 315(8)/2012 under Sections 341/302 of the IPC. He closed the MCD and opened the CD and continued with the investigation, as he was already entrusted with the investigation. He recorded the statements of the accused at the police station and he arrested her and produced her before the Chief Judicial Magistrate, Kamrup, Guwahati.

36. PW12, further deposed that retired from service on 31.08.2012 and he handed over the CD to the O.C. His successor, I.O., Mozibur Rahman collected the post-mortem report and submitted charge-sheet against the appellant under Sections 341/302 of the IPC. He proved the extract copy of the Boko P.S. GD entry No. 2 dated 01.08.2012 as Exhibit-9 and he identified the signature of Hriday Kalita as Exhibit-9(1). He proved his signature on the Command certificate as Exhibit- 6(2), his signature with prayer for autopsy as Exhibit-7(2) and his signature on the dead body challan as Exhibit-8(2). He identified the signature of Mozibur Rahman, with which he is acquainted as Exhibit-11(1) and the charge-sheet as Exhibit-11. He identified the dao as material Exhibit-8.

37. All the witnesses including the I.O. were cross-examined in extenso. Through the vigorous cross-examination of the witnesses, the evidence could not be contradicted. Rather, PW4 affirmed through his cross-examination that after witnessing the incident, the eye witness, PW2 immediately came to his house and narrated the incident to him. Thus, it can be safely held that this is indeed an open and shut case.

38. Recapitulating the entire evidence, it is held that PW2 witnessed the incident and he immediately rushed to PW4's house. PW1 was informed about his mother's death and so were the Gaonburha and the other villagers. The Gaoburha's evidence as PW5 corroborates and substantiates the evidence of PW1, PW2, PW3 and PW4. Initially, the police was informed over phone and the O.C. after receiving the telephonic information, immediately entrusted PW12 to investigate the case. A GD entry, Exhibit-9 was registered and PW-12 swung into action. He went to the place of occurrence and prepared the sketch map. A close scrutiny of the sketch map, Exhibit-10 clearly reveals that the incident occurred at Sakhati PWD Road adjacent to the office of the Muga Farm at Bhakatpara No. 2 Sakhati Village.

39. PW1, PW2, PW3, PW4, PW5, PW10 and PW12 have categorically stated that the incident occurred at Sakhati Village, near the Muga Farm. PW12 recovered the body from the Muga Farm and forwarded the body for post-mortem examination. The evidence of PW1, PW2, PW3, PW5, PW9 and PW12(I.O.) that the deceased sustained fatal injuries on her left cheek, mouth, shoulder and neck has been substantiated by the evidence of the Medical Officer, who deposed as PW7.

40. It has already been held in the foregoing discussions, how the weapon of offence was recovered. This weapon of offence was also identified by the I.O. Although there was only one witness in this case, the evidence of this eyewitness inspires confidence. This eye witness, immediately rushed to PW4's house and narrated the incident to him. The evidence of PW4 is direct evidence as it refers to a fact which could be heard and PW4 categorically stated that he heard about the incident from the eyewitness, PW2. Thereafter, one by one, the victim's son was informed about the incident and so was the Gaonburah and they stated that they were informed about the incident. As per Section 134 of the Evidence Act- no particular number of witnesses shall in any case be required for the proof of any fact. In the instant case, the evidence of one eyewitness was sufficient to bring home the charges leveled against the appellant. The learned trial court has correctly acquitted the appellant from the charges under section 341 IPC because there is no evidence that the deceased was restrained by the appellant at the time of the incident. The decision of the Trial Court that there is clinching evidence that the accused committed murder of Janaki Basumatary warrants no interference.

41. Considering the uncontradicted and uncontroverted evidence of the witnesses, we record our concurrence to the decision of the learned Trial Court. No infirmity could be deciphered in the decision of the learned Trial Court. Sound reasonings were recorded and the evidence has been properly analyzed by the learned Trial Court.

42. Thereby, the appeal is dismissed as this appeal is bereft of merits.

43. Send back the Trial Court Records.

44. We appreciate the assistance provided by the learned Amicus Curiae and recommend for payment of the honorarium.