Hrishikesh Roy, J. - (1.) THIS appeal is presented to challenge the judgment and order dated 28.1.2005 in Sessions Case No.39 (S-S)/03 rendered by the Second Additional Sessions Judge, Sivasagar, whereby the two appellants have been convicted under Section 302/34 and sentenced to life imprisonment and to pay a fine of Rs.10,000/- each; in default 5 years rigorous imprisonment. For the second conviction under Section 201/34 of the IPC, the accused were sentenced to 5 years rigorous imprisonment and fine of Rs.5,000/- each; in default 2 years rigorous imprisonment. The sentences were ordered to run concurrently.
(2.) IN the FIR lodged at the Nitaipukhuri Police Out Post by Dilip Phukan (PW.1), it was alleged that on 9.1.2003 at about 7:30 P.M., when Anil Phukan, the elder brother of the informant entered the house of Tulyadhar Baruah for some reason, Tulyadhar Baruah and his younger brother Lakhi Baruah killed him. The incident came to light when Balin Lahan (PW.6) saw the bicycle of the informant borrowed by Anil Phukan abandoned, in front of Tulyadhar Baruah's house. Then inquiries were made and marks of blood in the varandah and inside Tulyadhar's house were found and sign of dragging was also seen. After further search, dead body of Anil Phukan was found with his hands tied and face down, in a nearby pond. On receipt of the information, the Nitaipukhuri Police Out Post GD Entry No.146/2003 dated 9.1.2003 was made and was forwarded to the jurisdictional Police Station and Demow PS Case No.2/2003 was registered under section 302/34 of the IPC. After police completed their investigation, the appellants Tulyadhar Baruah and Lakhi Baruah were charged with committing murder of Anil Phukan and were also charged with destruction of evidence. The learned Chief Judicial Magistrate, Sivasagar by order dated 28.7.2003, committed the case to the Court of Sessions, Sivasagar as it was a sessions triable case. During the trial 12 witnesses were presented by the prosecution while the accused did not adduce any evidence. The accused Tulyadhar in his statement under Section 313 of the CrPC claimed innocence whereas, his brother Lakhi admitted that he assaulted Anil Phukan when the latter made a rape attempt on Tulyadhar's wife, Minu Baruah (PW.10). "PW.1 Dilip Phukan stated that the deceased Anil Phukan was his elder brother. This witness after returning home from shopping at about 7 P.M. was informed by Balin Lahon that, he has seen the former's bicycle abandoned near the gateway of the accused persons? house. Since the bicycle was borrowed by Anil Phukan and he was not found anywhere, they called on Tulyadhar Baruah and asked him about his missing elder brother. While Tulyadhar Baruah expressed his ignorance on the whereabouts of the missing person, PW.1 and his accompanying brother Biren Phukan (PW.2) noticed blood stains on the verandah of the house of the accused Tulyadhar. Then they asked the door to be opened and went inside the Tulyadhar Baruah's house where they also noticed blood stains on the floor. Suspecting some foul play, they looked around the nearby area with their torch light and found the body of their elder brother Anil Phukan in a shallow pond inside the house compound of Tulyadhar. Then the Gaonburha and the police were informed and a blood stained axe was recovered from inside the accused's house on the same night. According to the witness, Tulyadhar Baruah stated that his younger brother Lakhi had killed the deceased." PW.2 Biren Phukan is another younger brother of the deceased who accompanied the informant in search of their missing brother Anil. He also testified that the bicycle of his elder brother was found lying in front of Tulyadhar Baruah's house and that blood marks were seen on the verandah and on the floor of the house of the accused. The witness also noticed marks of dragging on the floor and following those marks, they found the dead body of their brother Anil lying in the shallow pond. According to PW.2, Tulyadhar Baruah's wife had stated that Lakhi and Tulyadhar have done the crime. The witness was a witness to the seizure list (Exhibit 2) to the recovery of the blood stained axe from inside Tulyadhar's house. In his cross-examination PW.2 stated that he did not know whether Tulyadhar was present in his house at the time of occurrence. "PW.3 Bharat Bhusan Barua is the village Gaonburha who stated that on 9.1.2003 at about 10 P.M., Dilip Phukan (PW.1) came to his house in a motor cycle and informed him about the incident. He then accompanied the PW.1 to the house of Tulyadhar where the dead body was lying. He noticed fresh marks of blood on the verandah and inside the house of the accused." P.W.3 went to the pond near the accused Tulyadhar's house and found the dead body of Anil Phukan lying face down in the shallow waters of the adjacent pond. He gave his signature on the Seizure Memo (Exbt.2) showing recovery of a bloodstained axe from the house of Tulyadhar. "P.W.4 is Biman Phukan who is a cousin brother of the deceased. He accompanied the other brothers of the deceased when they visited Tulyadhar's house. He corroborated P.W.1 and P.W.2 on all material particulars about blood on the varandah and inside the house of Tulyadhar and the body of the deceased being discovered in the nearby pond. In his cross-examination, the witness stated that he saw the abandoned bicycle, at the gateway of Tulyadhar's house." P.W.5 is the uncle of the deceased. He stated that the police questioned Tulyadhar's wife inside her house. When the police came out after the questioning, they asked the Gaonburha (P.W.3) and the witness on the identity of Lakhi. They informed the police that Lakhi was Tulyadhar's younger brother. Then they took police to Lakhi's house but he was found absent. A few days later, Lakhi was apprehended at Digboi. "P.W.6 is a co-villager who was not related to the accused or the deceased. He was inviting people for his mother's Shraddha ceremony and it was he who noticed the abandoned bicycle of Dilip Phukan near Tulyadhars house. He recognized the bicycle to be of Dilip because of its big seat. After inviting people when he returned, he informed Dilip Phukan about the abandoned bicycle. Then the witness was told by PW.1 Dilip that the bicycle was borrowed by Anil Phukan (deceased). P.W.6 accompanied Dilip on his motor cycle at the latter's request, to bring back the bicycle. But although they found the bicycle, they did not find Anil in the vicinity and those who gathered there including Biman Phukan and Biren Phukan, made a search of the surrounding area with torch lights. The witness later learnt that dead body of Anil was found in the shallow pond in the compound of the accused Tulyadhar." P.W.7 is a co-villager and a neighbour of Tulyadhar. At about 8 p.m. on the night of the incident, he heard hue and cry in Tulyadhar's house. He heard severely beating sound emanating from the accused's house. But he did not come out of his house. Later on Balin Lahan (P.W.6) came to invite P.W.7 to the Shraddha ceremony. The evidence of P.W.8 Ajit Phukan who is the uncle of the deceased shows the deceased to be a person habituated to liquor. In his cross-examination, P.W.8 stated that the character of the deceased was not good. "P.W.9 is Dr. Biman Kr. Das who held postmortem examination on 10.1.2003 on the dead body of Anil Phukan. He recorded the following injuries on the body of the deceased. The dead body was stout, rigor mortis present. External Appearance : 1. One incised wound on the front of the head measuring 4 X 1 X bone deep. 2. One incised wound on the occipital region of the scalp, size 2 X X bone deep. 3. Upper part of the left ear is missing by a cut wound. 4. Abrasions two in numbers on the posterior wall of the Ch size 4 X 2. 5. Abrasions on both wrist size 3 X . All the wounds are ante mortem in nature. Cranium and Spinal Canal : Skull frontal bone fracture, below wound No.1. Subdural and subarach cord space contains blood. Brain haemorrhage on the surface of the front lube of the Thorax Healthy; Abdominal organs are health. Stomach contains food particulars. Cause of death : Death in my opinion was due to the injuries only head sustained by the deceased. Injuries are homicidal in nature. According to the doctor, the head injury has caused the death of Anil Phukan." P.W.10 is Smti. Minu Baruah the wife of the accused Tulyadhar Baruah. She is the only eyewitness of the occurrence. PW.10 stated that on the night of the occurrence, Anil Phukan came to her house and asked for a glass of water. When she gave him the water, Anil Phukan caught her by her hand. She raised alarm and hearing her scream, her Deor? (husband's younger brother) Lakhi entered her house and obstructed Anil. Then Anil picked up an axe from inside the house and tried to assault Lakhi who then snatched away the axe from Anil's hand and given an axe blow on Anil. At the time of the incident, her husband Tulyadhar was not present and he was informed about the incident, after he returned home from the market. In her cross-examination, P.W.10 stated that Anil entered her house on the pretext of drinking water and then he tried to rape her. Anil was drunk at that time. Her brother-in-law Lakhi tried to protect P.W.10 and resisted Anil and when Anil charged Lakhi with an axe, then Lakhi grabbed the axe from Anil's hand and gave a retaliatory blow. "P.W.11 was the Magistrate who recorded the confessional statement (Exbt.10) of the accused Lakhi Baruah. He testified that Lakhi was given time for reflection, before he gave his confessional statement. The final evidence in the case is of PW.12 Khagen Saikia, who was officiating as the officer-in-charge in the Nitaipukhuri Police Outpost. In course of the police investigation, he seized the bloodstained axe from Tulyadhar's house and also filed the charge sheet against the accused Tulyadhar and his brother Lakhi under Section 302/34 of IPC. In his cross-examination, the I.O. stated that the deceased Anil Phukan on his own entered the accused persons? house on that fateful night. He testified about the arrest of Lakhi Baruah on 28.1.2003 from Panbari village under Digboi Police Station."
(3.) IN the statement of the accused Lakhi recorded under Section 313 of Cr.P.C., he admitted that he killed Anil Phukan by dealing an axe blow and had dragged and thrown him in the adjacent pond. But he explained that Anil attempted to rape his elder brother's wife and when he tried to protect her, Anil tried to hack him with an axe and he in turn hacked Anil Phukan to death with the same axe by snatching it away from Anil. Similar plea of guilt was made by Lakhi in his confessional statement given before the Magistrate on 30.1.2003 (Exbt.12). The accused Tulyadhar Baruah in his statement given under Section 313 CrPC stated that he was not present in his house at the time of the occurrence and that he learnt about the same from his wife when he returned home. He further stated that his younger brother Lakhi Baruah killed Anil Phukan, as Anil attempted to rape wife of the accused.;