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2008 DIGILAW 324 (GAU)

Tilak Kalita v. State of Assam

2008-05-05

AFTAB H.SAIKIA, P.K.MUSAHARY

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. P. Talukdar, the learned Counsel appearing for the Appellant as well as Mr. Z. Kamar, the learned P.P., Assam. 2. The legality and correctness of the conviction of the appellant under Section 302 IPC and the sentence to suffer rigorous imprisonment (for short, 'the R.I.') for life and to pay fine of Rs.500/- in default further 1 month's R.I. so handed down by the learned Additional Sessions Judge, Nagaon in Sessions Case No. 84(N)/88 by judgment and order dated 23.12.1994 have been assailed in this criminal appeal. 3. The factual matrix of such conviction and sentence as unfolded by the witness in short compass is that the investigation ensued on the basis of the F.LR. lodged by one Sri Padum Bora, P.W.5 with the Officer-in-Charge, Nagaon Police Station on 07.10.85 wherein it was alleged that his elder brother Sri Pradip Bora (hereinafter referred to as the, 'deceased') when came out to Tinimuri from his home, the appellant way-laid him and caused grievous injuries to him by stabbing below the naval with a knife with a view to causing his death and later on his brother succumbed to such injuries. 4. During the trial the prosecution examined as many as six witnesses, including two official witnesses, namely P.W.4 Dr. Badan Ch. Kakati, who held the autopsy over the dead body and P.W.6 the Investigating Officer (I.O.) as well as the Court witness, C.W.I. Defence also examined three witnesses. Having appreciated the material evidence on record, including the seizure list being Ext4, confessional statement, Ext.7 and upon hearing the learned Counsel for the parties, the learned trial Judge convicted and sentenced the appellant as indicated above. 5. Mr. Talukdar, the learned Counsel for the appellant, challenging the impugned conviction and sentence, has forcefully argued that the witnesses so examined by the prosecution failed to make out a case against the appellant for his conviction under Section 302 IPC as because a clear perusal of the testimony of those witnesses would candidly indicate that those are full of inconsistencies and contradictions. According to him, the deposition of witnesses, particularly the P.W. 1, who was projected as eye-witness by the prosecution, could not be believed and relied upon as a whole because he himself contradicted in his own statement so made in the examination-in-chief as well as in cross-examination. 6. According to him, the deposition of witnesses, particularly the P.W. 1, who was projected as eye-witness by the prosecution, could not be believed and relied upon as a whole because he himself contradicted in his own statement so made in the examination-in-chief as well as in cross-examination. 6. Learned Counsel for the appellant has further submitted that on going through the medical evidence so adduced by P.W.4, the Doctor, it would clearly show that the appellant struck a single blow by the knife and from the evidence of witness of P.W. 1, it is also seen that the appellant had to strike knife blow due to sudden altercation erupted between them regarding the question of going to the place of a girl. Under such circumstances, according to the appellant's counsel, it may be at best, a case to be covered by Section 304 Pt-I IPC instead of Section 302 IPC. 7. In support of the impugned conviction and sentence, Mr. Kamar, the learned P.P., has drawn our attention to the testimony of P.W.1, eye-witness, medical evidence and confessional statement made by the appellant i.e. Ext. 7. His basic submission is that P.W. 1 projected a vivid picture on the entire event, which resulted into the death of the deceased. This witness categorically pointed out that it was only the appellant who struck the fatal blow that turned into a single blow at the abdomen of the deceased by the knife, the material Ext. 1 after having an altercation with the deceased as regards going to the house of a particular girl. He has also submitted that such evidence of striking knife blow by the appellant had also been corroborated by the medical evidence of the P.W.4 who opined that the injury caused by the knife resulted into the death of the deceased. On the other hand, the confessional statement of the appellant specifically indicated that on the day of occurrence he was asked by his friend Deha Bora, the brother of one neighbouring girl namely, Sarumai to prohibit the deceased from visiting their house. On the other hand, the confessional statement of the appellant specifically indicated that on the day of occurrence he was asked by his friend Deha Bora, the brother of one neighbouring girl namely, Sarumai to prohibit the deceased from visiting their house. Thereafter, he met the deceased and told the deceased not to go to the house of Deha Bora and at that point the deceased dealt him a fist blow over which he got enraged and stabbed him in his abdomen with a knife and thereafter the appellant surrendered before the Court on 10.10.85 and produced the knife. 8. On a conjoint reading of the deposition of P.W. 1, medical evidence of P.W.4 and the confessional statement, according to Mr. Kamar, one could easily find that the prosecution was successful in bringing home the charges so brought against the appellant beyond any reasonable doubt and as such the learned trial Court was correct and justified in passing the impugned judgment of conviction and sentence. 9. We have given our anxious consideration on the forceful submissions of the learned Counsel for the parties at length and also closely scanned the materials evidence of the witnesses particularly the evidence of P.W.4 and the confessional statement. 10. We have also gone through the medical evidence of P.W.4, Dr. Badan Ch. Kakati, who found injuries as quoted below: Injuries; 1. Stitched wound on the epigastric region of the abdomen 6" in length vertically directed. 2. Incised wound on the right flank 1" x ½" x muscle deep. On opening the injury No. 1 above the following are found. (i) Incised wound on the interior boarder of the liver 1"x¼". (ii) Stitched wound on the wall of the gall bladder ¾" in length. (iii) Stitched wound on the lesser omentum. Doctor giving his opinion opined that injury Nos. 1, 2 and 3 as indicated above correspond to external stitched injury No. 1 referred to above so caused by knife. 11. The medical evidence as indicated above would clearly show that the appellant struck single blow which became fatal for the deceased. 12. It is also vehemently contended by the learned Counsel for the appellant that considering the medical evidence as well as the evidence of the witnesses as regard single blow, the offence would come under the ambit of Section 304 Part-I IPC. 13. 12. It is also vehemently contended by the learned Counsel for the appellant that considering the medical evidence as well as the evidence of the witnesses as regard single blow, the offence would come under the ambit of Section 304 Part-I IPC. 13. P.W.1, being the eye-witness, disclosed clearly that there was altercation between the deceased and the appellant regarding the visit to a girl's house by the deceased. The appellant told the deceased "you should not go to the house of that girl" then the deceased replied "I will surely go". This answer provoked the appellant to get his anger flared up and he immediately stabbed the deceased with a knife. This witness clearly indicated that before striking the deceased by the knife the deceased was asked not to visit the house of one girl and when the appellant refused to honour his prohibition, he got enraged and stabbed him. It appears to us that the same was done out of sudden provocation out of altercation. Such statement of PW-1 got corroboration from the confessional statement wherein the appellant in his clear unequivocal term confessed that it was one Deha Boro, his close friend, who asked the appellant to prohibit the deceased from going to his house for meeting his sister and on coming across the deceased at Tiniali the appellant told the deceased not to go to the house of Deha Boro. The deceased then dealt him a fist blow over which the appellant got enraged and stabbed the deceased with the knife and later on produced the knife before the police having surrendered on 10.10.85. 14. Having noticed the single injury on the abdomen and the attending circumstances so exhibited from the evidence of the prosecution witnesses, we are of the firm opinion that the appellant must have inflicted a single blow on the abdomen of the deceased due to some quarrel between the appellant and deceased and he would have knowledge that the said act would result in the death of the deceased. 15. Reliance has also been placed on various decisions of the Apex Court, a few of them are (1) 2004 CriLJ 658 (Sushil Murmu v. State of Jharkhand (2) (2005) 11 SCC 597 (Jeet Singh v. State of Haryana and AIR 2007 SCW 569 (Bishnu Prasad Sinha and Anr. v. State of Assam). 16. 15. Reliance has also been placed on various decisions of the Apex Court, a few of them are (1) 2004 CriLJ 658 (Sushil Murmu v. State of Jharkhand (2) (2005) 11 SCC 597 (Jeet Singh v. State of Haryana and AIR 2007 SCW 569 (Bishnu Prasad Sinha and Anr. v. State of Assam). 16. In Sushil Murmu's case (supra) while dealing with the principles of proportionality in determination of sentence under Section 302 IPC the Apex Court discussed in details on certain objectives intended to be achieved by the legislature in the matter of reformation and rehabilitation of offenders and indicated that deterrence should be the foremost object of administration of criminal justice in our country. The Supreme Court in paragraph 6 of the said judgment observed as follows: 6...This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the statute—book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors. Criminal justice deals with complex human problems and diverse human beings. A judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed. 17. Relying on this judicial authority it is, stated by the learned Counsel for the appellant that taking into consideration of the age, character and antecedent of the appellant as well as other circumstances and tractability of the offender it is necessary for the Court to consider the complex situation of the human problem and accordingly the present case is fit one for conversion of the conviction of the appellant under Section 302 IPC to one under Section 304 Part-I IPC. 18. 18. In Jeet Singh's case (supra) the Apex Court had given due consideration on inflicting of single blow on the head of the deceased due to the quarrel which might have taken place between two where appellant was convicted under Section 304 Part-I instead of Section 302 IPC. In paragraph 4 it is observed as follows: 4. Going by the evidence adduced by the prosecution, we are not inclined to interfere with the findings of fact entered by the Sessions Judge and the High Court. However, we find some force in the contention urged by the appellant's counsel that the offence, if any, committed by the appellant may not come within the purview of Section 302 IPC: It is pointed out that there was no previous quarrel or enmity between the appellant and the deceased and the quarrel had suddenly taken place due to the fact that the deceased Bawa Singh drove the tractor through his field and the sudden quarrel ensued because of the conduct of the deceased. It is also pointed out that the appellant was having a weapon with him and he gave one blow which unfortunately had resulted in the death of the deceased. It is contended by the appellant's counsel that the offence would come within the ambit of Section 304 Part-I IPC. It is true that there is only one fatal injury on the head of the deceased. The appellant must have inflicted a blow on the head of the deceased because of the quarrel between the two. The appellant certainly would have knowledge that his act would result in the death of the,, deceased. Hence, the offence comes under the purview of Section 304 Part-I of the Indian Penal Code and hence we set aside the conviction of the appellant for the offence under Section 302 IPC and hold him guilty of the offence under Section 304 Part-I IPC and sentence him to undergo imprisonment for a period of 8 years.... 19. In a latest case in Bishnu Prasad Sinha and Anr.'s case (supra), in paragraphs 57 and 64, while awarding the sentence, the Apex Court took the following views: 57. The question which remains is as to what punishment should be awarded. 19. In a latest case in Bishnu Prasad Sinha and Anr.'s case (supra), in paragraphs 57 and 64, while awarding the sentence, the Apex Court took the following views: 57. The question which remains is as to what punishment should be awarded. Ordinarily, this Court, having regard to the nature of the offence, would not have differed with the opinion of the learned Sessions Judge as also the High Court in this behalf, but it must be borne in mind that the appellants are convicted only on the basis of the circumstantial evidence. There are authorities for the proposition that if the evidence is proved by circumstantial evidence, ordinarily, death penalty would not be awarded. Moreover, the appellant No. 1 sowed his remorse and repentance even in his statement under Section 313 of the Code of Criminal Procedure. He accepted his guilt. 64. There is another aspect of this matter which cannot be overlooked. Appellant No. 1 made a confession. He felt repentant not only while making the confessional statement before the Judicial Magistrate, but also before the learned Sessions Judge in his statement under Section 313 of the Code of Criminal Procedure. 20. From the entire evidence as noticed herein above, it appears to us that single blow was dealt by the appellant with the knife out of altercation between the appellant and the deceased. We have also noticed that if we accept the confessional statement of the appellant that he, in retaliation of fist blow, had given a knife blow it cannot be said that he had acted upon a right of private defence at the relevant time. 21. It is true that there was only a fatal injury at the abdomen, but the appellant might have the knowledge that the said act would cause death to the deceased. 22. Hence, in our view, having regard to those above cited cases, the offence should come under the purview of Section 304 Part-I of the Indian Penal Code and hence we convict the appellant under Section 304 Part-I IPC instead of Section 302 IPC and sentence him to the period already undergone. 23. The appellant be set at liberty forthwith if he is not required in any other case. 24. In the result the appeal stands partly allowed with the modification of the conviction and sentence as noted above. 25. LCR be sent down immediately.