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2008 DIGILAW 813 (GAU)

Babul Das @ Babulal v. State of Assam

2008-11-25

AFTAB H.SAIKIA, H.BARUAH

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. R.K. Adhikari, learned Counsel who is appointed as Amicus Curiae in place of Ms. N. Moral, earlier appointed amicus curiae for her default to assist the court by her absence when the matter is called upon for hearing as well as Mr. K.A. Mazumdar, learned Public Prosecutor ('PP'); Assam appearing on behalf of the respondent. 2. The appellant herein was convicted by the learned Sessions Judge, Barpeta in Sessions Case No. 66/2002 by his Judgment and Order dated 19.11.2003 under Section 302 IPC having found him guilty for committing murder of Dipak Kumar Das (hereinafter referred to as 'the deceased') at around 10:35 P.M. on 28.2.1998 by causing grievous injuries to which effect an 'ejahar' was lodged by one Haren Das, the father of the deceased on 1.3.1998 with Barpeta Police station, basically on putting reliance on the dying declaration given by the deceased to PW1 (Dipak Ch. Das) and PW.3(Smt. Salyani Das) as well as keeping in view the surrender of the appellant with the offending weapon, i.e., 'dao' in hand before the police, which was seized later on as Exhibit-1, and sentenced him to undergo rigorous imprisonment ('RT') for life and to pay fine of Rs. 5,000, in default, further RI for one year. 3. On meticulous scrutiny of the evidence on record of the 9(nine) witnesses particularly, PW1 (Dipak Ch. Das), PW3 (Smt. Kalyani Das), PW4 (Member Chayengia), PW5 (Ghanakanta Kalita) and PW.6 (Dhaniram Bora), we found that when both PWl and PW3 asked the deceased while he was in injured condition, the deceased told them it was Babul Das, the appellant who injured him on his neck and fled away. 4. We have also appreciated the statement made by the appellant at the time of imposition of sentence, wherein he had disclosed that the deceased had illicit relationship with his wife, Pranita and out of such illicit relationship, his wife Pranita gave birth to a child. On the fateful night, the deceased accosted him as to why the appellant used to torture his wife Pranita. At that spur of moment out of sudden provocation, he dealt 'dao' blow which was in his hand and accordingly he expressed remorse and sought for leniency. 5. On the fateful night, the deceased accosted him as to why the appellant used to torture his wife Pranita. At that spur of moment out of sudden provocation, he dealt 'dao' blow which was in his hand and accordingly he expressed remorse and sought for leniency. 5. Having meticulously scrutinized the examination of the appellant under Section 313, Cr.PC we are surprised to note that the learned Judge put only two material questions to the appellant in a combined manner in direct contravention of the provision of Section 313, Cr.PC. What we have gathered from the content made in the questions put by the court is that first question was put as regards his medical evidence so adduced by PW6 (Dr. Bhusan Chandra Roy Medhi) and second question in a combined manner against the statement of the witnesses, namely PWl, PW2, PW3, PW4, PW5, PW6, PW7 and PW8. It transpires that the circumstances which appeared in the evidence against the appellant were not put to the appellant on his examination under Section 313, Cr.PC. to give him an opportunity to explain. 6. At this moment, Mr. Adhikari learned amicus curiae has cited a decision of the Apex Court rendered in the case of Naval Kishore Singh v. State of Bihar (2004) 7 SCC 502 and drawn our attention to paragraph-5, wherein the Apex Court deprecated the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same. The said paragraph-5 may be quoted as under: 5. Counsel for the appellant pointed out that the Sessions Court committed serious error in not properly examining the accused under Section 313, Cr.PC. Our attention was taken to the statement taken from the present appellant. Only three questions were put to the appellant. The first question was whether he held the statement of the witnesses and the second question was that the evidence given by the witnesses showed that he committed the murder of the deceased and whether he had to say anything in defence. The questioning of the accused under Section 313, Cr.PC was done in the most unsatisfactory manner. Under Section 313, Cr.PC the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. The questioning of the accused under Section 313, Cr.PC was done in the most unsatisfactory manner. Under Section 313, Cr.PC the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313examination shall not be earned out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence. In various decisions of this Court, the importance of questioning the accused under Section 313, Cr.PC was given due emphasis, e.f. Rama Shankar Singh v. State of W.B., Bhalinder Singh v. State of Punjab, State of Maharastra v. Sukhdev Singh and Lallu Manjhi v. State of Jharkhand. 7. In various decisions of this Court, the importance of questioning the accused under Section 313, Cr.PC was given due emphasis, e.f. Rama Shankar Singh v. State of W.B., Bhalinder Singh v. State of Punjab, State of Maharastra v. Sukhdev Singh and Lallu Manjhi v. State of Jharkhand. 7. Having regard to the judicial authority cited above and also keeping in view the mitigating circumstances so unfolded by the appellant in his statement made at the time of imposition of sentence as well as at the time of framing the charge, wherein also he has reiterated the same statement as stated above disclosing his wife's illicit relationship with the deceased we are of the view that the appellant struck the fatal blow on the person of the deceased at the spur of moment out of sudden provocation when he was confronted with the deceased who accosted him as to why the appellant was torturing his wife Pranita. 8. Accordingly in our opinion, the instant case would fall within the purview of Section 304, Part-II, IPC instead of under Section 302, IPC. Consequently, we set aside the conviction and sentence of the appellant under Section 302, IPC and hold him guilty of an offence under Section 304, Part-II, IPC. 9. As regards the sentence of the appellant, Mr. Adhikari, learned amicus curiae has strongly submitted that since the appellant has already been in jail for more than 5 1/2 years and he has expressed his remorse, applying the ratio laid down in the case of Bishnu Prasad Sinha v. State of Assam (2007) 11 SCC 467 this Court, may take a lenient view as regards the sentence and the appellant herein may be sentenced to the period already undergone in incarceration. 10. Given facts and circumstances of the case in its totality, we have found enough force to the submission of Mr. Adhikari, learned Amicus Curiae and accordingly, we do order for sentencing the appellant for the period already undergone jail. 11. The appellant be set at liberty forthwith, unless his incarceration is required in any other case. 12. In the result, the appeal stands partly allowed to the extent of modification of sentence as indicated above. Send down the LCR forthwith. 13. Before parting with the judgment, we would like to put on record our appreciation to Mr. 11. The appellant be set at liberty forthwith, unless his incarceration is required in any other case. 12. In the result, the appeal stands partly allowed to the extent of modification of sentence as indicated above. Send down the LCR forthwith. 13. Before parting with the judgment, we would like to put on record our appreciation to Mr. R.K. Adhikari, for his valuable assistance as amicus curiae to arrive in the above decision. He is entitled to get his professional fees which is quantified at Rs. 5,000. Appeal partly allowed.