Decided on March 30,1995

STATE Respondents


B.M. Mitra, J. - (1.)The present appeal is at the instance of the accused/appellant being directed against the judgment and sentence of life imprisonment under Sec. 302 of Indian Penal Code and under Sec. 326 thereof for four years. By the impugned judgment, the sentences will run concurrently. The said judgment is delivered by the learned Sessions Judge of Port Blair in Sessions case No. 22 of 1990.
(2.)An unfortunate incident took place on Feb. 7, 1989, leading to the death of a lady by the name of one Nagamma who used to reside with her husband as a tenant in the house of one Ambika. It appears from the reading of the allegations as narrated by the learned Sessions Judge that on the fateful day on 7-2-89 the husband of the deceased Rajendran went to work in the Rubber Plantation site and his wife during his absence went out with a kettle to bring tea from a nearby shop. The attention of PW10 and PW11 were drawn in the morning over shout - "save, save" of a lady coming from the side of the house of Ambika. Hearing such shouts, PW10 Rajendran came out from the room of the first floor on the varandah facing the road. The said Rajendran along with one Anil Bengra, PW15 then saw the deceased Nagama running away towards the rubber plantation site followed by the accused Guruswamy whose body was wrapped in a chader and two persons, namely, Ramamurthy and Panchavarnam were going ahead of Nagamma towards the Plantation site. In the process of this the chader fell from the body of the accused and Rajendran and Anil saw a straight Dah (Mat. Ext. IV) in the hand of the accused. Being chased by the accused with the uplifted weapon, Nagamma first tried to protect herself by taking shelter against Ramamurthy who asked the accused to stop. The accused threatend him to kill if he intervene and the said Ramamurthy fled away out of fear. Then Nagamma again tried to protect herself in her bid to take refuge under the shelter of Panchavarnam. The accused tried to strike the weapon aimed at Nagamma but it fell on the shoulder of Panchavarnam causing bleeding injury and cutting the shoulder bone of the said person. After sustaining the assault, Panchavarnam also fled away towards the Rubber Plantation site and Nagamma in her desperate bid raised her hands to protect herself. The accused struck her with that Dah on the head, neck and hands on the victim lady and then tied away with the said weapon towards the jungle beyond the house of Maria Das. After the information of the said happening was communicated, it resulted in congregation of certain persons at the PO and some of them are figuring as PWs. The said PWs as referred to, by way of evidence in the judgment came to the PO and saw the injured lady lying near the road with bleeding injury on head, neck and on her hands. The same was followed by the arrival of the husband of the deceased lady. At that juncture a passenger bus arrived there. The further case of the prosecution is that some of the police officials connected with the excise department were on regular duty in excise raid. When the said party was going back the concerned PS and the said police party went to the spot and saw the injured lady in pool of blood by the side of the road in front of the house of Ambika and came to know from the people gathered there that PW 10 Rajendran saw the entire occurrence.
(3.)A formal FIR was drawn up and a copy thereof was given to P.L. Krishna Rao, (PW19) who carried the same by Scooter to Bamboo flat and handed over a copy of the FIR to SHO Vijay Singh who already arrived there with the injured lady. Then the lady was referred therefrom to the hospital. She was ultimately being attempted to be offered medical aid to G.B. Pant Hospital, Port Blair. On examination of the injured lady the concerned doctor Lt. Col. J.R. Sharma (PW20) found certain injuries in the body of the injured lady which was deliniated in the Judgment under challenge. As the condition of the injured lady was serious, then SHO Vijay Singh immediately contacted the Executive Magistrate. PW9 who came to the hospital ward at about 12.15 in the noon and obtained the opinion of the Doctor at 12.30 p.m. that the patient was fit to state that incident. The Magistrate recorded by dying declaration of Nagamma, deceased which was marked as Exhibit 7 wherein it has been stated that on that fateful day the accused Guruswamy struck her with the Dah out of enemity on the road when she was out to take tea and that one Panchavarnam and another saw the incident. It is further alleged that at 11.30 a.m. on the next day, i.e., 8-2-1989 the police personnel in search of the accused started keeping watch at different boats arriving at Chatham jetty and ultimately a vehicle was spotted at Aberdeen Bazar at about 3.30 p.m. It is alleged that at that time at the particular bus stand some passengers were seen coming out from the bus and the accused was one of them. He had a white plastic bag in his hand. On suspicion the accused was challenged by that party and opening that plastic bag a blood stained Dah was found. It is also stated that the accused was there with a banian, shirt, jangia and a lungi. Stains of blood were also in the said garments and even it can be traced from the evidence that the blood stains bearing on the said garments were examined and it was particularly found on the shirt of the accused signs of blood of 'B' group which tallied with the blood group of the victim lady. The lady ultimately succumbed to her injury and the accused was arrested and on interrogation a charge sheet was submitted against the accused under Sec. 302/326 Penal Code on 25-9-1980. The case was thereafter committed to Sessions. It is not out of context to mention in this connection that the other injured person who sustained injury and evidence was collected to the effect that he suffered injury leading to grevious hurt as the victim lady tried to take a cover under him.

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