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2007 DIGILAW 37 (GAU)

Raj Kumar Choudhury v. State of Tripura

2007-01-11

A.B.PAL

body2007
JUDGMENT A.B. Pal, J. 1. The Judgment dated 30-6-1998 by Additional Sessions Judge, West Tripura, Agartala in ST 78 (WT/A/1995) convicting the appellant Raj Kumar Choudhury, under Section 304-Part II of the Indian Penal Code and sentencing him to rigorous Imprisonment for six years and a fine of Rs. 5000/-, in default further imprisonment for one year, stands Impugned in the present criminal appeal. 2. The deceased Nimai Choudhury was the uncle (father's brother) of the appellant. They lived within the same house in separate huts. But they had a dispute over the boundary of their respective shares of the homestead land and all attempts by the well wishers to amicably settle the dispute having failed, the relation between them continued to be strained. Frequently, they indulged in quarrels over boundary fencing. Pyari Mohan Choudhury, one of the brothers of the deceased and his son Kebal Choudhury, who also lived in adjacent huts supported the appellant in the said dispute. According to the prosecution version, on 27-2-94 the appellant along with Pyari Mohan and Kebal stormed into the hut of the deceased when he was seeing a TV programme comfortably after return from work and evening meal. Smt. Fulmalati Choudhury (PW 1), the wife of the deceased, and her daughters Sagarika Choudhury (PW 3-A child witness) and Dipti Choudhury (PW 10) were present when the accused persons had dragged the deceased out of his hut and 'assaulted by lathi and spade in the courtyard near the kitchen of the deceased. The deceased was thus done to death on the spot by the fatal injuries on his head. When the wife and the daughters of the deceased raised alarm and started to cry, the assailants allegedly attacked the elder daughter and dragged her out of the house. The other witnesses including Hari Mohan Choudhury (PW 7), one of the brothers of the deceased, rushed to the place of occurrence and learnt from the wife and the daughters of deceased about the details of the episode. Hari Mohan stated that he returned from work at 6 p.m. and learnt that in the fight Nimai was killed by Raj Kumar. The other independent witness who claimed to have seen the occurrence is Kamal Sarkar (PW 6). Hari Mohan stated that he returned from work at 6 p.m. and learnt that in the fight Nimai was killed by Raj Kumar. The other independent witness who claimed to have seen the occurrence is Kamal Sarkar (PW 6). After getting the information that altercation was going on between Nimai and Raj Kumar he went to their house and saw Nimai hitting Raj Kumar by a spade and Raj Kumar hitting Nimai by a piece of firewood. He snatched away the firewood from Raj Kumar. 3. On the basis of the materials collected during Investigation the learned trial Court framed charge against Pyari Mohan, Kebal and Raj Kumar under Sections 448 and 302 read with Section 34 of the Indian Penal Code. During a full dressed trial the prosecution examined 19 witnesses and relied on several exhibited documents Including FIR, inquest report, post mortem report and certain exhibited portion of the statement recorded under Section 161, Cr. P.C. As seen above, the wife and two daughters of the deceased had seen the occurrence when the other witness Kamal Sarkar (PW 6) reached there when the deceased and the appellant were locked In a fight. The witness was confronted with his statement recorded under Section 161, Cr. P.C. where he stated that Raj Kumar and Kebal were hitting the deceased by lathi. The deceased was also hitting Raj Kumar by a spade. This contradiction alone makes it difficult to believe that the deceased was also hitting Raj Kumar, the appellant herein, by a spade as the same gets no support from other evidence on record. In his examination-in-chief he however, stated that Raj Kumar was hitting the deceased by a piece of firewood and this is exactly the defence story which was come in the statement of the appellant recorded under Section 313, Cr. P.C. In that statement appellant, however, claimed that he had to attack his uncle by a piece of firewood in self-defence when the deceased had attacked him by a spade. Absence of any statement that the deceased attacked the appellant by a spade in the previous statement of P.W. 6 would lead to the conclusion that he tried to develop the story in his deposition before the learned trial Court for supporting the defence of the appellant. The prosecution had no alternative but to declare him hostile and confront him with his previous statement. 4. The prosecution had no alternative but to declare him hostile and confront him with his previous statement. 4. The learned Trial Court placed emphasis on the admitted factual position that there was a dispute between the appellant and deceased over a boundary and frequently they were indulged in fight and quarrel. The elder daughter of the deceased (PW 10) stated that even on the day before the date of occurrence the appellant had injured her father by a dao on his leg. The defence statement coming from the appellant that the fight was between him and the deceased led the learned trial Court to acquit Pyari Mohan and his son Kebal. Though the appellant had taken the plea of right of private defence, he failed to adduce any evidence to support his story that he was attacked first and injured by the deceased with a spade. According to him he sustained injuries and got treated by a private medical practitioner. He has not explained why he failed to examine the said doctor or adduce any document regarding his treatment. He also has not explained why he chose to go to a private medical practitioner if he had really sustained head injury caused by a spade. Thus the right of private defence having not been established the learned Trial Court had no difficulty to take a firm view that none but the appellant was responsible for the death of Nimai. 5. Though the post-mortem report shows that there was only one injury measuring 3 inch x 1 inch x scull depth which caused the death, it is silent about the nature of the weapon by which such injury could be caused. The Medical Officer who did the post-mortem examination could not be examined as he was out of the State. But there is no dispute that the injuries caused by the appellant were responsible for the death of the deceased. The learned Trial Court after a careful analysis of the evidence on record came to conclude that the appellant did not intend to kill his uncle, though considering the location of the injury it can be said that the appellant had the knowledge that such injury on the vital part of the body was likely to cause death. Thus, the appellant came to be convicted under Section 304, Part 11 of the I.P.C. to undergo sentences imposed. 6. Thus, the appellant came to be convicted under Section 304, Part 11 of the I.P.C. to undergo sentences imposed. 6. I have heard Mr. P. K. Ghosh, learned Counsel for the appellant and Mr. A. Ghosh, learned Counsel for the respondent. 7. Learned Counsel for the appellant submitted that though the appellant did not adduce any evidence to establish his right of private defence, the circumstances which emerged from the evidence and materials on record would eloquently indicate that he acted in self-defence being suddenly attacked by the deceased and that he did not exceed the right of private defence available to him. According to him, though unfortunately the injuries caused by the appellant prove to be fatal, the appellant having acted in self-defence deserved to be acquitted. 8. The learned Counsel for the respondents on the other hand submitted that the plea of right of private defence has totally failed as there is no evidence to support the appellant that he acted only in self-defence. The seizure list would show that three wooden sticks stained with blood were found near the deadbody. No spade stained with blood was found on the spot though according to the appellant he was hit on his head by a spade. The other important aspect which demolishes the defence case is that the appellant gave no reason for not examining the doctor who treated him for the injury allegedly caused by the deceased on his head. 9. A careful perusal of the evidence on record and the reasons recorded by the learned trial Court in support of the convictions and sentence the impression which strongly gains ground is that the appellant more often than not quarreled with the deceased over the boundary dispute and on the date and time of occurrence he first launched the attack though he had no intention to commit murder of his uncle. There is no specific denial in the cross-examination of the eye-witness that the deceased was murdered near the kitchen after he was dragged out of his house. There is no reason to disbelieve the statement of the wife (P. W. 1) and two daughters (P.Ws. 3 and 10). P.W. 11 is Smt. Tapashi Choudhury, who is another daughter of the deceased. At the time of occurrence she was in the house of her neighbour. There is no reason to disbelieve the statement of the wife (P. W. 1) and two daughters (P.Ws. 3 and 10). P.W. 11 is Smt. Tapashi Choudhury, who is another daughter of the deceased. At the time of occurrence she was in the house of her neighbour. She rushed to the place of occurrence having heard the cries of her mother and sisters. The statements of the wife and three daughters along with that of Hari Mohan Choudhury (PW 7) and Kamal Sarkar (PW 6) would leave no doubt that the appellant intended to force his uncle to his terms by physical might and with that view launch the attack on the deceased. There is nothing on record to take a different view and, therefore, the conviction under Section 304, Part II cannot be interfered with. Having gone through the circumstances in its entirety and the submissions made in the statement of the appellant under Section 313, Cr. P.C., I am of the considered view that a more lenient view can be taken by reducing the sentence from six years to two years' rigorous imprisonment without disturbing the fine part of the sentence. 10. In the result this appeal against the conviction having no merit is hereby dismissed affirming the judgment impugned with the modification that the sentence shall stand reduced from six years to two years' rigorous imprisonment under Section 304, Part II of the Indian Penal Code. The part of the sentence regarding fine with default stipulation shall, however, remain upheld.