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2007 DIGILAW 547 (GAU)

Gedo Doke v. State of Arunachal Pradesh

2007-08-17

AFTAB H.SAIKIA, H.BARUAH

body2007
JUDGMENT Aftab Hussain Saikia, J. 1. Heard Mr. P.K. Tiwari, learned Counsel for the appellant as well as Mr. B. Banerjee, learned P.P. Arunachal Pradesh. 2. The appellant has fought his conviction under Section 302 IPC and sentence to undergo life imprisonment with a fine of Rs. 1000/- handed down to him by the learned Additional Sessions Judge, Fast Track Court, Basar, Arunachal Pradesh by his Judgment and order in BSR Sessions case No. 55 of 2002 dated 29.11.2005. 3. The factual matrix, as unfolded by the prosecution is that P.W. 1 Handa Taipodia, father of the deceased Dohen Taipodia lodged an ejahar with the Gensi Police Station, West Siang District on 17.3.1992 alleging that the appellant shot his son the deceased, by gun on 16.3.1992 at about 9:00 p.m. at Gensi village. It was further alleged that the deceased was shot dead just in front of the residence of one M. Doke. 4. Thereafter, on the basis of this information Police registered a case under Section 302 IPC and started investigation. On completion of the investigation conducted by P.W. 13 Tek Chand Dhiman filed chargesheet against the appellant under above mentioned section. The appellant was sent for trial. 5. During the trial the prosecution examined as many as 13 witnesses including two official witnesses namely P W. 12 Dr. T. Lollen who conducted the autopsy on the dead body of the deceased Dohen Taipodia and P.W. 13 Tek Chand Dhiman, the Investigating Officer (for short the I/O). The statement of the accused was also recorded under Section 313 Cr.P.C. 6. Learned Judge having considered the material evidence on record and examined the material exhibits so placed before him and also upon hearing the learned Counsel for the parties, arrived at the findings that the prosecution was successful in proving the offence committed by the appellant under the above mentioned section and accordingly the appellant was convicted and sentenced as already noted hereinabove. Be it noted that the defence also examined 2 witnesses. 7. Assailing the impugned conviction and sentence and also in support of the appeal preferred by the appellant, Mr. Be it noted that the defence also examined 2 witnesses. 7. Assailing the impugned conviction and sentence and also in support of the appeal preferred by the appellant, Mr. Tiwari, learned Counsel representing the appellant has basically made the following contentions: (a) Most of the witnesses, so examined by the prosecution in their deposition categorically testified that the deceased had a scuffle with the appellant when the deceased tried to stop him while the appellant was going from his house with a gun to school one Jumgo Taipodia and as a result of the said scuffle the deceased died accidentally. (b) That the medical evidence of Dr. P.W. 12 T. Lollen speaks of one bullet injury on the chest and the same was duly corroborated by the witnesses so relied upon by the prosecution and considering this single bullet injury, it could be said that the same was fired accidentally at the time of scuffle between the accused and the deceased. (c) There was no intention or pre-meditation on the part of the appellant to kill the deceased. (d) The trial court ought to have believe the testimony of the defence witnesses i.e. DW 1 and DW 2. (e) Lastly in view of the attending facts and circumstances it is not a case of conviction of the appellant under Section 302 IPC and at best he may be convicted under Section 304 Part II IPC. 8. Mr. Tiwari to bolster up his submission as regard the credibility of the defence witnesses has relied on the decision of the Apex Court in the case of State of Haryana v. Ram Singh, 2002 CriLJ 987 wherein in paragraph-19 it was held as under: ...Incidentally be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one--the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trust worthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution.... 9. Per contra Mr. Banerjee, learned P.P. has strenuously defending the conviction and sentence, submitted that all the witnesses so examined by the prosecution were in unison deposed that the appellant was involved in the killing of the deceased who happened to be his own brother-in-law. 9. Per contra Mr. Banerjee, learned P.P. has strenuously defending the conviction and sentence, submitted that all the witnesses so examined by the prosecution were in unison deposed that the appellant was involved in the killing of the deceased who happened to be his own brother-in-law. He has also contended that although no intention could not be brought in the evidence on record that the appellant caused homicidal death to the deceased, the prosecution successfully proved that it was only the appellant who was involved in the killing. 10. As regards the injury inflicted on the deceased, learned Counsel representing the appellant has also relied on the two decisions of the Supreme Court namely, 1) Kartar Singh v. State of Punjab, AIR 1988 SC 2122 and 2) K. Ramakrishnan Unnithan v. State of Kerala, 1999 CriLJ 2101. 11. We have given our thoughtful consideration to the rival contentions so canvassed by the learned Counsel representing the parties. Also meticulously scanned the deposition of the witnesses so examined by the prosecution as well as by the defence including the other materials/documents and exhibits produced before the trial court. 12. P.W. 12, T. Lollen while conducting postmortem over the dead body of the deceased found the following injuries: 1. External appearance: (i) Condition of subject, stout emaciated or decomposed etc. Body in lying position on PM table with one half terri cotton shirt, one black long pant, one green nylon underwear, one necklace with one local beads (Dokso) one torn appearance circular in the right side of shirt at the level between 3rd and 4th button. Dark red blood stains over the right side of shirt more below the aperture of the shirt which coincides with the aperture of the wounds of the deceased. Body healthy not decomposed. 2. Wounds, position size and character: 1. One Aperture wound in right side of the body in between Mammary and axillary lines over the region of 6th and 7th right thoracic ribs. The aperture wound is circular. Margins of aperture wound are abraded and inverted. Size 1.4 inches in cm. No profusion of tissue from the aperture wound. Five Nos. of aggressions around the aperture wounds. No wound in the opposite side of the body of the deceased. 3. Bruises-position, size and nature: Nil II. Cranium and spinal canal: 1. Sculp, skull and vertebrae: Healthy 2. Membrane--Healthy 3. Brain and spinal cord: Healthy III. Size 1.4 inches in cm. No profusion of tissue from the aperture wound. Five Nos. of aggressions around the aperture wounds. No wound in the opposite side of the body of the deceased. 3. Bruises-position, size and nature: Nil II. Cranium and spinal canal: 1. Sculp, skull and vertebrae: Healthy 2. Membrane--Healthy 3. Brain and spinal cord: Healthy III. Thorax 1. Walls, ribs and cartilages: Right 6th and 7th thoracic ribs torn completely posterior to the anterior angle of ribs, at the region of the aperture wound. Left 7th thoracic ribs fractured posterior to the anterior angle of ribs. 2. Pleaurne--Pleaurine lining the wall ion the region of 6th and 7th right thoracic ribs torn completely. Pleaurne lining the long lession torn. 3. Larynx and trachere: Healthy. 4. Right lung: Empty, Lower lob and lower border of middle lob ruptured completely Darkish black clotted blood formed. 5. Left lung: Empty Ruptured at upper border of lower lob and lower border of upper lob, Darkish blood clotted formed. One entrance wound in the medical surface of lower lob, circular. One exit wound circular smaller in size posterior laterally. Eight Nos of bullets recovered from the left lung. 6. Pericardium/heart: The pericardium with right atrium, right and left ventricles ruptured completely. Lower border of pericardium lining lower border of left atrium ruptured completely. IV; Abdomen 1. Walls: Healthy 2. Peritoneum: Peritoneum lining upper part of right lob of liver anterio-interiorly and junction between right and left lob interiorly torn completely. Right dome of the diaphragm overlying right lob of liver anterio superiorly torn. One left rectangular type of bullet, one cylindrical cord board disc and two plastic covers (flat wet) recovered from left side thoracic cavity posteriorly. 3. Month, pharynk and oesophagus: Healthy 4. Stomach and its contents: Healthy 5. Small intestine and its contents: Healthy 6. Large intestine and its contents: Healthy 7. Liver : Massive laceration of liver from upper part of right lob interio superiously to the junction between right and left lobs inferiorly. Inferior venecuva entering the liver-torn completely. Gall bladder empty 8. Spleen: Healthy 9. Kidney: Healthy 10. Bladder: Healthy 11. Organs of generation, external and internal : Healthy V. Muscles, Bones and joints: 1. Injury: Muscles of the right thoracic wall at the region of aperture wounds torned completely 2. Disease or deformity: Nil 3. Inferior venecuva entering the liver-torn completely. Gall bladder empty 8. Spleen: Healthy 9. Kidney: Healthy 10. Bladder: Healthy 11. Organs of generation, external and internal : Healthy V. Muscles, Bones and joints: 1. Injury: Muscles of the right thoracic wall at the region of aperture wounds torned completely 2. Disease or deformity: Nil 3. Fracture: 6th and 7th right thoracic ribs torn or broken completely posterior to the anterio angle or ribs 7th left thoracic ribs fractured-posterior to the anterio angle of ribs. 3. Dislocation: Nil. 13. The Doctor in his opinion disclosed that the death took place due to gun fire injury from close range at about 60 hrs and 30 minutes back and close reading of the above medical evidence will go to show that deceased died from one single bullet injury. 14. The above mentioned injury of single bullet shot was duly corroborated by the evidence of the witnesses, particularly, P.W. 2, Karbom Doke who found the dead body with one injury on the chest of the deceased which was caused by means of gun shot. 15. P.W. 3 Miss Marme Doke heard one gun shot fire. P.W. 7 Gebin Doke also testified that the deceased had an injury on his chest. 16. P.W. 11 Smti Bamdak Doke saw appellant shooting at the deceased Dohen Taipodia with the gun which he had taken with him and bullet of the gun hit at the chest of the deceased and she saw blood oozing out from the said wound. 17. On the other hand defence witnesses namely, Geyon Doke, DW 1, deposed that he heard the sound of the gun shot and DW 2 Yomjum Doke, also narrated in the same way as he also heard one gun shot during the night which was dark. 18. It is the admitted case that initially an altercation took place between the appellant and P.W. 8 Jumgo Taipoda in the Video hall as regards some seat arrangement. It is seen from the evidence that after having the initial altercation with P.W. 5 Takar Doke and P.W. 8 Jumgo Taipodia, the appellant rushed to his house, took up the gun and came back and assaulted PW 5. It is seen from the evidence that after having the initial altercation with P.W. 5 Takar Doke and P.W. 8 Jumgo Taipodia, the appellant rushed to his house, took up the gun and came back and assaulted PW 5. This incident was well narrated by PW 5 Takar Doke himself who deposed that the appellant put a gun on his chest and stated that he wanted to hit him but as he had a torch in the other hand, he lifted the gun towards the sky and in the process, the gun fired blank shot. He did not allow the appellant to do so by pulling the barrel and started shaking the gun. At that time he hit him on his knees. This witness thereafter ran to the house of Yidak Taipodia. Thereafter, when he came to the spot he came to know that the deceased was killed by the appellant. He also stated in deposition that there was no quarrel and enmity between the accused with him. Nothing had been spelt out by this witness that the appellant had his first altercation and thereafter caused assault to him. 19. So far, P.W. 8 Jumgo Taipodia is concerned, it is found that it was he who was intended to be attacked by the appellant for the altercation they had in the Video hall, P.W. 8 in his deposition stated that he used to address the appellant as "Magbo" and when the film was about to be over, the appellant came to the place and gave a push to one Madan on his back because of which he went under the table where T.V was kept and asked the appellant not to do like this. Then appellant told him that he had no right to interfere with him. At that time he got up from the seat and appellant occupied his seat. The appellant rebuked him from there and then he went away from the place. About five minutes later he left the cinema hall before it was completed. This witness deposed that he heard one gun shot. 20. At that time he got up from the seat and appellant occupied his seat. The appellant rebuked him from there and then he went away from the place. About five minutes later he left the cinema hall before it was completed. This witness deposed that he heard one gun shot. 20. From the close perusal of the evidence of all these witnesses, particularly P.W. 2 Karbom Doke, P.W. 5 Takar Doke it appears that the deceased was killed by accident and the entire incident was a result of action to restrain the appellant by the deceased to keep him away from committing any offence by the use of gun. 21. P.W. 7 Gobin Doke being the elder brother of the appellant, in his deposition, in our view depicted an acceptable picture of the entire incident. This witness went to indicate that on the date of occurrence he along with his brother-in-law, the deceased, were making bamboo rope in a room and at that time at about 7/8 O' clock in the night, the appellant came to his house and left with a gun. He stated that the gun belonged to him and licence was in his father's name. At that moment the deceased Dohen Taipodia followed his brother, the appellant. Then the appellant killed him though there was no quarrel. He went to the spot and found the deceased dead having one injury on the chest. He seized the gun from the appellant. In his cross this witness categorically deposed that the deceased went out to restrain the appellant and in the process the deceased was killed. He also reinforced that the deceased was killed in an accident. 22. In consideration of the facts and circumstances in its entirety and upon hearing the learned Counsel for the parties, we are of the considered view that death caused to the deceased by the appellant was not an intentional but was accidental in nature as on the face of the evidence itself it appears that the deceased died in the scuffle with the appellant when he tried to restrain the appellant, who came to the house and left immediately with the gun for not committing any crime. The evidence was also recorded by the prosecution witnesses that there was no enmity between the parties. The evidence was also recorded by the prosecution witnesses that there was no enmity between the parties. According to us, the incident had happened in the process of scuffle between the appellant and the deceased who was his own brother-in-law and accordingly we are of the firm view that the appellant is entitled to get benefit of doubt. 23. We have also considered carefully the statement made by the appellant under Section 313Cr.P.C. Against two Question No. 12, the appellant replied that the shooting might or might not have happened as he did not know because at that time he was drunk. Against question No. 13 it was replied that deceased was trying to restrain him from doing some thing with the gun which he did not remember and in the process of pushing and putting of the gun between myself and the deceased there might have been firing of gun accidentally. That could be the reason the injury was a gun shot from a close range. But actually, how it happened, he did not remember because at that time he was drunk. 24. At this stage, Mr. Tiwari, learned Counsel for the petitioner, as regards the conviction and sentence has submitted that after considering the evidence of the PWs and DWs including the appellants statement recorded under Section 313 Cr.P.C, he may be convicted under Section 304Part II IPC and sentenced leniently. 25. In view of what has been discussed, observed and stated above, we are of the opinion that the conviction of the appellant under Section 302 IPC is not tenable in law on the basis of evidence so projected by the prosecution and having relied on the evidence so deposed by the witnesses of the prosecution and also defence, in the interest of justice, the conviction of the appellant is convicted to Section 304 Part II IPC. 26. Having considered the submission of the learned Counsel for the appellant as regards sentence, we are of the view that 7 years custodial detention of the petitioner would satisfy the ends of justice. It is ordered accordingly. 27. In the result, the appeal stands partly allowed to the extent of modification of the conviction and sentence as indicated above. Send down the LCR forthwith.