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2006 DIGILAW 186 (GAU)

Priyalal Sarkar v. State of Tripura

2006-02-24

A.B.PAL, I.A.ANSARI

body2006
JUDGMENT A.B. Pal, J. 1. The judgment dated 7.11.02 passed by the learned Addl. Sessions Judge, West Tripura, Khowai in S.T. No. 9 (WT/K)/2002 convicting Sri Priyalal Sarkar, the Appellant herein, under Section 302 of Indian Penal Code (IPC) and sentencing him to suffer RI for life stands impugned in the present appeal. 2. The prosecution version is that on 26.10.95, the deceased Jagadish Sarkar was returning home from Khasia Mangal. On the way, the Appellant herein, attacked him and assaulted him mercilessly with lathi (wooden stick) causing grievous injuries. One Smt. Shantabala Sarkar (PW 2) informed Sri Bishnupada Sarkar (PW5), the father of the deceased, who at once came to his son's rescue. Smt. Jyotsna Bala Sarkar (PW 6), the mother of the deceased also reached the scene. The deceased who was lying by road side with bleeding injuries disclosed to his parents that Priyalal Sarkar and Suprasanna Sarkar had attacked and assaulted him. Other villagers also reached there and the deceased was shifted to the hospital. But he succumbed to the injuries soon after he was brought to the hospital. On the same day, after the death of his son, the unfortunate bereaved father lodged the First Information Report (FIR) with Teliamura Police Station following which investigation was given afoot. During investigation both the accused persons named in the FIR were found absconding. After completion of the investigation during which ten witnesses were examined and statement of PW 4 recorded under Section 164 of the Code of Criminal Procedure (for short, 'Code') was brought on record. The investigating Police Officer submitted chargesheet against Priyalal Sarkar, the Appellant herein and Supra alias Suprasanna Sarkar (absconder) under Section 302 read with 34 IPC. Though the Appellant could be arrested eventually the Police could not arrest the other accused for a considerable long period and because of that reason, the proceeding against the absconder was adjourned sine die. Sessions trial, thus, came to be held only against one accused Priyalal Sarker, the convict Appellant herein. Though the Appellant could be arrested eventually the Police could not arrest the other accused for a considerable long period and because of that reason, the proceeding against the absconder was adjourned sine die. Sessions trial, thus, came to be held only against one accused Priyalal Sarker, the convict Appellant herein. Basing on the statements of Bishnupada Sarker (PW 5) and Smt. Jyotsnabala Sarkar (PW 6), the parents of the deceased, and the circumstantial evidence gathered from confronted portion of the earlier statements of other witnesses who later turned hostile, the learned trial court arrived at a finding that the Appellant along with the absconder was responsible for causing murder to the deceased and accordingly, the conviction and sentence followed. 3. We have heard Mr. S. Kar Bhowmik, learned Counsel for the Appellant and Mr. R.C. Debnath, learned PP-in-charge for the State. 4. PW 1 Narayan Sarkar and PW 4 Debu Sarkar are the two villagers who were present in the place of occurrence immediately after the deceased was mercilessly beaten and left on the road side by the assailants. But both the witnesses turned hostile and they were confronted with their previous statements recorded by the investigating Police Officer. PW 4 made a statement to the Sub Divisional Judicial Magistrate (SDJM), Khowai on 15.11.95 in connection with this case which was recorded under Section 164 of the Code. The said statement has been marked as Ext. 3. PW 1 in his statement in chief admitted that after hearing hue and cry he went to the place of occurrence and found the deceased with injuries on the road side. He advised the people assembled there to shift the victim to the hospital immediately. He also visited the Teliamura Hospital and came to know that the victim had expired. He refused to say that he had knowledge about the assailants. But in his previous statement to the Police to which his attention was drawn, he stated that the deceased disclosed to him that Supra (absconder) and Priyalal (Appellant) had caused the injuries on the deceased. PW 4, Debu Sarkar, similarly stated that he had no knowledge about the assailants though he admitted that he made a statement to the Magistrate but he could not remember what exactly he stated. He identified his signature on his statement. But the Addl. PW 4, Debu Sarkar, similarly stated that he had no knowledge about the assailants though he admitted that he made a statement to the Magistrate but he could not remember what exactly he stated. He identified his signature on his statement. But the Addl. PP, for reasons best known to him, declared PW 4 hostile and confronted him with his statement to the investigator. From the confronted portion which he denied to have made the story that surfaced is that on the day of occurrence at about 2 pm, a hue and cry woke him up from his nap. He saw Suprasanna (absconder) assaulting the deceased on the bank of a tank owned by this witness. He at once rushed there and dispersed the two and asked Suprasanna why he was assaulting Jagadish, the deceased. But without giving any reply, Suprasanna left the place. He advised Jagadish to go to his house. But when he was proceeding towards his house, the Appellant herein ushered into the scene, caught hold of the victim and started assaulting with firewood. A blow of firewood on the head of the victim caused by the Appellant proved fatal as the victim immediately collapsed on the ground bleeding profusely. 5. The statement of this witness Debu Sarkar (PW 4) recorded under Section 164 of the Code is in pari materia with the confronted portion of his statement given to the investigator. The genesis of the offence came to light when the PW 4 disclosed that there was a love affair between the deceased and the sister of Suprasanna which had annoyed the latter though the details of the story are not available. This much can be gathered from the statement that the enmity between the deceased and Suprasanna originated from this relationship and as Suprasanna could not stomach the affair he decided to give a lesson to the deceased. In the episode which was initiated by Suprasanna attacking the deceased and assaulting him with fist blows, Priyalal Sarkar joined Suprasanna and took a lethal weapon like firewood with which the fatal injury on head was caused claiming the life of a young man at the prime of his age. 6. In the episode which was initiated by Suprasanna attacking the deceased and assaulting him with fist blows, Priyalal Sarkar joined Suprasanna and took a lethal weapon like firewood with which the fatal injury on head was caused claiming the life of a young man at the prime of his age. 6. Bishnupada Sarkar (PW 5) and Smt. Jyotsna Bala Sarkar (PW 6) who are parents of the deceased have corroborated each other by saying that their son told them that Priyalal Sarkar and Suprasanna Sarkar had assaulted him causing bleeding injuries. Veracity of their statements could not be smeared in cross-examination and as a matter of fact, the impeccable statements of those two witnesses laid the foundation of the prosecution case. The only defence taken by the Appellant is that he was falsely entangled due to previous enmity, without bringing on record any acceptable evidence in support of such previous enmity. But it could not be shown by the defence why the statements of the parents should be disbelieved. Thus, these two statements of PWs 5 and 6 to whom the deceased made a dying declaration provided the main bulwark of the prosecution case which gathered strength from the statement of PW 4 recorded under Section 164 of the Code and confronted portions of the previous statements of PW 1. Though those are not substantial pieces of evidence, they certainly have corroborative values. 7. Learned defence counsel advanced an argument that the Culpable homicide in the present case does not amount to murder as in no way it can be said from the materials on record that the Appellant had intention to commit the offence of murder. If the prosecution case is considered in its entirety the canvass of the occurrence will present a materially different picture. The deceased had a love affair with the sister of Suprasanna who was very unhappy and decided to teach a lesson to the deceased by physical assault. If the statement of PW 4 is believed, the episode had two parts. In the first part, Suprasanna only was there attacking the deceased and beating him with fist blows. PW 4 rushed to the place and separated them advising Suprasanna to take the matter for adjudication. He also advised the deceased to go home. If the statement of PW 4 is believed, the episode had two parts. In the first part, Suprasanna only was there attacking the deceased and beating him with fist blows. PW 4 rushed to the place and separated them advising Suprasanna to take the matter for adjudication. He also advised the deceased to go home. The second part of the play began with appearance of the Appellant herein who caught hold of the deceased and started beating with firewood. Suprasanna also joined. Though the reasons or motive on the part of the Appellant to assault the deceased has not surfaced, it can be presumed that he was acting for the cause of his friend Suprasanna. The defence argument is that though the Appellant had taken up a firewood for assaulting the deceased and accidentally a blow had fallen on the head, it cannot be said from that circumstances alone that the Appellant had intention to commit murder of the deceased or there was prior meeting of minds of the two for putting an end to the life of the deceased. Thus, according to the learned Counsel the case can at best come within the purview of Section 304 Part-II of IPC as culpable homicide not amounting to murder because of the absence of intention to commit such an offence. 8. Learned Public Prosecutor endeavoured to support the conviction and sentence by advancing a submission that the Appellant herein and the absconder Suprasanna had prior meeting of minds to commit the murder of the deceased and accordingly the attack on him was launched though the Appellant came a little later with a firewood in his hand. The nature of the injuries on the scalp measuring 4" x 1" deep recorded in the post mortem report is enough to establish the fact that the Appellant caused the injury with intent to commit murder and, therefore, it is a clear case of an offence punishable under Section 302 IPC. 9. The materials discussed above have sufficiently established, in our view, that the deceased was assaulted by the Appellant and the absconder and upto this, the prosecution case is very clear. 9. The materials discussed above have sufficiently established, in our view, that the deceased was assaulted by the Appellant and the absconder and upto this, the prosecution case is very clear. The question that has fallen for consideration in the limited compass is whether the facts and circumstances of the case in which injuries caused to the deceased, one of which proved vital because of its location on a vital part of the body, if placed and considered on the anvils of the essential ingredients of culpable homicide bring the offence within the realm of culpable homicide not amounting to murder. Confronted with this question we have noticed that PW 4 in his statement, given to the learned SDJM, disclosed that initially Suprasanna initiated the attack and as a matter of fact there is no statement that the deceased sustained any bleeding injury at that point of time. But later, after the two were separated by this witness, the Appellant herein made his appearance, caught hold of the deceased and started beating him. His motive for assaulting the deceased has not been disclosed though it can be presumably held that he was supporting the cause of Suprasanna. Be that as it may, use of the firewood and planting a blow on the head of the deceased by the same is not enough for taking a view that he had the intention to commit murder though he might have the knowledge that the place he had chosen to plant the blow with the firewood being vital part of the body of the deceased, might lead to end to his life. To appreciate the distinction between the knowledge and intention in a culpable homicide, the provision in Section 304 IPC may be gainfully quoted: 304. To appreciate the distinction between the knowledge and intention in a culpable homicide, the provision in Section 304 IPC may be gainfully quoted: 304. Punishment for culpable homicide not amounting to murder--Whoever commits culpable homicide not amounting to murder, shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. 10. If the statement of PW 4, recorded by the learned SDJM is sewn into the other part of the prosecution story coherently, a complete picture that stands depicted before us is that the love affair between the deceased and the sister of Suprasanna was at the root of the hatred Suprasanna parked in his mind against the deceased and Priyalal being a friend came to share the same. Presumably, having failed to dissuade the deceased from pursuing the relation, they decided to achieve the same by way of physically assaulting him. This being the only available reason for enmity, it would be difficult to make a hypothesis that the two assailants had decided to take the extreme step of killing the deceased. The way the occurrence had its inception with Suprasanna attacking the deceased and assaulting with fist blows and Priyalal joining later go to suggest that if they had any intention to commit murder of the deceased they would not have chosen the time and place of occurrence and certainly would have come with weapon. The way the occurrence had its inception with Suprasanna attacking the deceased and assaulting with fist blows and Priyalal joining later go to suggest that if they had any intention to commit murder of the deceased they would not have chosen the time and place of occurrence and certainly would have come with weapon. As the incident had taken place in broad day light, the assailants did not come together and had no weapons in their hands while launching the attack, though later a firewood available at the spot came handy for Priyalal, a comprehensive view may lead to a reasonable hypothesis that they had attacked and assaulted the deceased without intent to commit murder though the Appellant while planting the blow on the vital part of the body of the deceased by a firewood must have the knowledge that such a blow could prove fatal. These particular facts and circumstances of this case in its entirety convince us that the offence committed by the Appellant herein can be reasonably taken to the realm of culpable homicide not amounting to murder for which he can be convicted and sentenced only under Section 304 Part-II IPC. 11. For the reasons and discussions made above, this appeal is partly allowed. The conviction and sentence under Section 302 IPC are set aside by way of converting the same under Section 304Part-II IPC. Thus, the Appellant stands convicted under Section 304 (Part II) IPC and he is sentenced to undergo rigorous imprisonment for six years from which the period of his incarceration shall be set off. 12. Send down the case records to the learned trial court for proceeding against the absconder Suprasanna Sarkar after procuring his arrest.