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2009 DIGILAW 493 (GAU)

Hemo Chandra Nath v. State of Assam

2009-07-28

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Ms. P Bhattacharjee, learned Counsel for the appellant and also heard Mr. D. Das, learned Additional P.P., Assam. 2. This appeal has been preferred against the judgment dated 11.2.2003 passed by the learned Sessions Judge, Darrang in Sessions Case No. 121(DM)/2001 convicting the accused-appellant under Section 307, IPC read with Section 326, IPC and sentencing him to suffer rigorous imprisonment for 4 (four) years and to pay fine of Rs. 5,000/- (rupees five thousand) in default further rigorous imprisonment for 1 (one) month. 3. The story projected by the prosecution is that the accused-appellant Sri Hemo Chandra Nath reared a wild monkey at his house. The said monkey, on 15.8.1999 attacked the daughter of one Sri Indra Kanta Medhi, a neighbour. His wife informed Indra Kanta Medhi, while he was ploughing in paddy field alongwith his brothers, namely Sri Deepak Medhi and Sri Pitambar Medhi. They all came to the house of the accused-appellant Hemo Chandra Nath. There was a heated altercation between the accused-appellant and Sri Indra Kanta Medhi and his brothers named above. The accused-appellant hit Sri Deepak Medhi, PW-3, brother of Indra Kanta Medhi, with a Dao over the backside of his neck. It was an attack with an attempt to cause death to Sri Deepak Medhi. Accordingly, Indra Kanta Medhi lodged a written FIR with the police, which was registered as Kalaigaon Police Station Case No. 77/1999 under Sections326 / 307, IPC. The victim Sri Deepak Medhi was shifted to Mangaldoi Civil Hospital and then to Guwahati Medical College Hospital for treatment. The Investigating Officer visited the place of occurrence on 16.8.1999 and seized the Dao from the house of the accused/appellant. During investigation, the investigating Officer also recorded the statements of some witnesses and after completion of investigation, submitted the charge-sheet against the accused-appellant under Sections 326 / 307, IPC. 4. The learned Judicial Magistrate, Mangaldoi committed the case to the Court of Sessions, as the said case is exclusively triable by the Court of Sessions. On appearance of the accused-appellant, the learned Sessions Court framed charge under Section 307, IPC against the accused-appellant, to which, on being read over and explained, the accused-appellant pleaded not guilty and claimed to be tried. 5. The prosecution examined as many as 8 (eight) witnesses including a Medical Officer and the Investigating Officer. Defence examined only 1 (one) witness. On appearance of the accused-appellant, the learned Sessions Court framed charge under Section 307, IPC against the accused-appellant, to which, on being read over and explained, the accused-appellant pleaded not guilty and claimed to be tried. 5. The prosecution examined as many as 8 (eight) witnesses including a Medical Officer and the Investigating Officer. Defence examined only 1 (one) witness. On conclusion of the trial and on consideration of the evidence on record and submissions of the learned Counsel for the parties, the learned Trial Court convicted and sentenced the accused-appellant as stated above. 6. Ms. Bhattacharjee, learned Counsel for the accused-appellant has taken me through the entire evidence of prosecution witnesses. According to the prosecution witnesses, they were ploughing in the field and came to the house of the accused-appellant without any arms. They simply carried lathi. But on their arrival, the accused-appellant started quarrelling with them and there ensued a scuffle and it was the accused-appellant, who ultimately struck a Dao blow on the right side of the neck of the victim Sri Deepak Medhi, PW-3. As per the evidence of PW-1 himself, there were, at least 3-4 villagers, namely Sri Surendra Nath, Mahendra Nath and Harendra Nath, present at the time of occurrence and these three persons tried to separate the persons, who were engaged in the scuffle. The prosecution, for reasons best known to them only did not cite them witnesses and preferred not to examine them. It is submitted by Ms. Bhattacharjee, learned Counsel for the accused-appellant that there is no cogent evidence to the effect that the Dao, which was seized from the house of the accused-appellant, belongs to him and the said Dao was used for causing the injury to victim Sri Deepak Medhi. Placing the evidence of PW-1, Sri Umesh Ch. Nath, a co-villager, it is submitted that the informant and his brothers came to the house of the appellant, armed with Dao, axe etc. with an attempt to assault him. The relevant portion of the evidence of DW-1, Sri Umesh Ch. Nath, is rendered into English and quoted below: ...Then Indra, Deepak and Pitambar came from the field. Deepak Medhi came with a 'Beki Dao'. The other two persons came with one Dao and axe. I was in the house of Hemo Ch. Nath. I saw Deepak was chasing Hemo Chandra with intention to attack him. Nath, is rendered into English and quoted below: ...Then Indra, Deepak and Pitambar came from the field. Deepak Medhi came with a 'Beki Dao'. The other two persons came with one Dao and axe. I was in the house of Hemo Ch. Nath. I saw Deepak was chasing Hemo Chandra with intention to attack him. There was a scuffle between these two persons with the said Dao, Then Deepak got cut injury. Deepak was thereafter, carried out. The others carried him away. The Dao was lying over there. Hemo Ch. Nath himself did not hit Deepak. In cross-examination, the said DW-1 -deposed as follows: ...I did not try to dissuade the quarrel, it is not a fact that Deepak did not chase Hemo Chandra carrying a Beki Dao. It is not a fact that the Dao belongs to the accused. It is also not a fact that I was not present at the place of occurrence. It is not a fact that Hemo Chandra struck off Deepak. 7. Ms. Bhattacharjee also placed the medical report and the evidence of the Medical Officer, who was examined as PW-7. As per the evidence of the Medical Officer, there was a 4cm X 1cm lacerated injury stitched outside on right side of the neck. The said doctor remarked that following this injury patient development quadriparesis in the lower limbs. In cross-examination it was deposed by him that such injury might also be caused by falling in a sharp edged weapon. 8. From the aforesaid evidence, it is argued by the learned Counsel for the appellant that the informant and his party themselves came with the aforesaid arms in their hands, and, at least, one of them, Sri Deepak Medhi attempted to strike by a Dao and in his private defence, the appellant had to try to snatch away the Dao from the hands of Deepak Medhi and in the process of such self defence, the Dao accidentally struck at the right side of the neck of Deepak Medhi. There was no intention on the part of the appellant to cause any injury on Deepak Medhi, not to speak of causing grievous injury or death to him. According to Ms. Bhattacharjee, in such circumstances, the offence under Section 307, IPC is not at all attracted. The learned Trial Court failed to appreciate the evidence of DW-1 in its proper perspective. According to Ms. Bhattacharjee, in such circumstances, the offence under Section 307, IPC is not at all attracted. The learned Trial Court failed to appreciate the evidence of DW-1 in its proper perspective. She has cited the case of State of Haryana v. Ram Singh reported in AIR 2002 SC 620 , in which, it is held inter alia that the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. In respect of plea of private defence, she has cited the case of Krishnan v. State of Tamil Nadu reported in (2006) 11 SCC 304 , wherein the Apex Court, inter alia has held that if the accused pleads right of private defence but in his statement under Section 313, Cr PC does not admit to have inflicted the fatal blow, there is no ground to reject the plea of such self defence, if the evidence of the eye-witnesses reveal facts and circumstances supporting the plea. It is also held that the plea can be established either by letting any defence evidence or from the prosecution evidence itself, but cannot be based on speculation or mere surmises. Finally it has been argued by the learned Counsel for the appellant that considering the aforesaid facts and circumstances and the evidence on record, the appellant, may at best be held liable under Section 324, IPC for which the accused may be punished with imprisonment of either for a terms which may extend to 3 (three) years or with fine or with both. 9. Mr. D. Das, learned Additional P.P., Assam submits that the prosecution has been successful in proving its case against the accused-appellant beyond all reasonable doubt and as such, no interference with the impugned judgment and order convicting and sentencing him, as indicated in the judgment, is called for. 10. I have perused the records including the evidence of PWs and DW as made available at the time of hearing. From the perusal of the same, it is found that the following facts have stood indisputable: (i) The biting of monkey on the person of a little girl, daughter of the informant Sri Indra Kanta Medhi, is the root cause. I have perused the records including the evidence of PWs and DW as made available at the time of hearing. From the perusal of the same, it is found that the following facts have stood indisputable: (i) The biting of monkey on the person of a little girl, daughter of the informant Sri Indra Kanta Medhi, is the root cause. (ii) Having been informed, the informant alongwith other two brothers rushed from the paddy field, where they were working, to the house of the accused-appellant, (iii) There was an altercation, which turned hot and ultimately a scuffle between the accused-appellant and the victim Sri Deepak Medhi, PW-3, took place and they were trying to have control over the Dao during the scuffle. (iv) The Dao struck at the lower, portion on the right side of the neck for which the victim sustained grievous injury and have to be shifted to Mangaldoi Civil Hospital and then to Guwahati Medical College Hospital for further treatment. 11. The evidence adduced by the prosecution could not establish as to whom the Dao, which was allegedly used for causing injury to the victim, belongs or who was infact possessing the same before the scuffle took place. The prosecution evidence is that the aforesaid Dao was not seized on the very date of occurrence, rather it was seized on the next day and it was not sent for FSL examination. There is nothing on record as to whether the crime weapon, i.e. Dao, was found stained with blood. The only evidence is that it was seized from the house of the accused-appellant. On the other hand, the positive evidence of DW-1 is that PWs-1, 2 and 3 came with the Dao and axe to the house of the accused-appellant and he saw the victim Deepak Medhi, PW-3, chasing the accused-appellant with intention to attack him. This DW-1 is a co-villager. He is not an interested witness nor a chance witness. He is a natural witness as a co-villager, who happened to be at the place of occurrence and could see what actually happened and how the injury could be inflicted upon the victim. One factor is to be noted. The accused-appellant was alone and he was not supported by any other person when the aforesaid PWs-1, 2 and 3 came to his house. One factor is to be noted. The accused-appellant was alone and he was not supported by any other person when the aforesaid PWs-1, 2 and 3 came to his house. It was quite natural that he would not have dared to attack the aforesaid PWs alone but when he was attacked or at least attempted to be attacked by PW-3, he had to resist for his private defence. The Medical Officer, PW-7, opined that the injury as described may also be caused by falling against a sharp weapon. There is no evidence that the victim, PW-3, fell down during the scuffle on a sharp weapon but it can be presumed that during the scuffle between two young men over the Dao, it had struck on the person of the victim. It can be seen from the evidence that both accused and the victim were scuffling to take the possession of the Dao and there was every likelihood of striking of the Dao with great force on one of them and thus the injury was caused on the victim. 12. Having found that there was a scuffle to take the possession of a Dao between the two young men and on the face of the evidence of DW-1 that PW-3 came with a Dao and he made an attempt to assault the accused-appellant, I find that the accused-appellant had to resort to self defence, which, of course, resulted into inflicting of injury to the victim, PW-3, which is not found to be intentional. I am of the considered view that principle of law regarding plea of private defence enunciated by the Apex Court in several cases including the case of Krishnan (supra) is applicable to the present case inasmuch as the accused-appellant has been able to discharge the burden of proof thereof. 13. In view of the above facts and circumstances and evidence on record, I come to a conclusion that the accused-appellant did not deal any strike by the Dao on the person of PW-3 intentionally nor did he cause injury on him voluntarily and as such, the charge framed under Sections 326 / 307, IPC is not established. However, on the aforesaid facts and circumstances and evidence on record, the offence under Section 324, IPC against the accused-appellant is found well established. However, on the aforesaid facts and circumstances and evidence on record, the offence under Section 324, IPC against the accused-appellant is found well established. As such the conviction under Sections 326 / 307, IPC is converted to 324, IPC and the sentence is reduced to the period already undergone by the accused-appellant with fine of Rs. 20,000/- (rupees twenty thousand) only. The said amount shall be deposited with the learned Trial Court within a period of 3 (three) months from today, which may be disbursed to the victim Sri Deepak Medhi and if the accused-appellant fails to deposit the aforesaid amount, he shall undergo simple imprisonment for 6 (six) months. 14. The appeal stands partly allowed. The bail bond stands discharged. 15. Return the LCR forthwith.