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2009 DIGILAW 644 (GAU)

Dulal Gogoi v. State of Assam

2009-09-05

A.C.UPADHYAY, AMITAVA ROY

body2009
JUDGMENT Amitava Roy, J. 1. Being aggrieved by his conviction under Section 302 of the Indian Penal Code ('the IPC'), for which he had been sentenced to suffer R.I. for life and also to fine of Rs. 500, in default to serve for further 3(three) months R.I. as recorded in the Judgment and order dated 28.2.2002 passed by the learned Addl. Sessions Judge (Ad hoc), Jorhat in Sessions Case No. 60(J-J)/2001, the appellant-accused has preferred this appeal from Jail. 2. We have heard Ms. M. Buzar Baruah, learned amicus curiae for the appellant-accused and Mr. K.C. Mahanta, learned Public Prosecutor, Assam. 3. The prosecution case unfolds with the FIR dated 12.11.2000 lodged by Smt. Junmoni Gogoi, wife of the deceased with the Officer-in-charge, Mariani Police Station, Mariani alleging deadly assault by the appellant-accused on her husband at 7.30 p.m. on 11.11.2000 with a "Fang Kore" (rake) in her presence. The FIR, further disclosed that the injured though, soon thereafter, was removed to the Jorhat Civil Hospital, he succumbed to the injuries sustained at about 1 a.m. On receipt of the FIR, Mariani P.S. Case No. 71/2000 under Section 302 of the IPC was registered and on the completion of the investigation, a charge sheet was laid under the above provision of law against the appellant-accused. The case being triable exclusively by the Court of Sessions, the same was committed thereto and eventually was tried by the learned Addl. Sessions Judge (Ad hoc), Jorhat. 4. The appellant-accused was thereafter charged under Section 302 of the IPC and when the same was explained to him, he pleaded "not guilty" and claimed to be tried. In course of the trial, the prosecution examined 6(six) witnesses including the informant, the doctor who had performed the autopsy on the dead body as well as the investigating officer. 5. The statement of the appellant-accused under Section 313 of the Cr.P.C was recorded, in which he while pleading denial to the charge attributed to the contrary an aggressive role of the deceased for which he had to flee to save his life. The appellant-accused further alleged that at the relevant time, the deceased was in an inebriated state and further suggested that the deceased might have in that condition in course of the chase, fallen with the rake and had injured himself(deceased) causing grievous injuries leading to his death. The appellant-accused further alleged that at the relevant time, the deceased was in an inebriated state and further suggested that the deceased might have in that condition in course of the chase, fallen with the rake and had injured himself(deceased) causing grievous injuries leading to his death. He also alleged mental illness of the deceased at the relevant time. The appellant-accused examined himself and one Sri Bhogeswar Gogoi as witnesses in defence. The learned trial court, however, on a consideration of the evidence on record convicted and sentenced him as above. 6. The learned amicus curiae has urged that having regard to the place of occurrence as disclosed in the sketch map (Ext. 4) prepared by the investigating officer, the testimony of PW-1, (Informant) of having witnessed the incident is wholly untrustworthy and therefore; is liable to be rejected. There being no other evidence of the actual occurrence of the incident, the prosecution case is liable to be rejected on that count, she argued. The learned amicus curiae insisted that as the prosecution had failed to examine any independent witness, though it had been represented in the statement of PW-1 that several persons from the neighbourhood had come to the place of occurrence, the learned trial court ought to have acquitted the appellant-accused treating the prosecution case as unworthy of any credit. It has been, further argued that as in terms of the sketch map (Ext-4), the place of occurrence is on a road and not in the house of the appellant-accused he by no means can be treated to be the aggressor and this being destructive of the substratum of the prosecution case, the impugned Judgment and order is liable to be interfered with in the interest of justice. Without prejudice to the above, the learned amicus curiae has argued that in absence of any ingredient of that offence under Section 302, IPC having regard to the length of appellant's detention for over 9(nine) years as on date, he is entitled to be let off by converting his conviction to one under Section 304(II), IPC and adjusting the period undergone with any sentence, which this Court may, eventually like to impose having regard to the attending facts and circumstances of the case. 7. 7. The learned Public Prosecutor, in reply, has argued that having regard to the evidence on record, which undoubtedly points towards the guilt of the appellant-accused and the weapon of assault, it is a clear case of murder and, therefore, no interference with the impugned Judgment and order is warranted. As the appellant-accused by using a rake to assault had disclosed his intention to do away with the deceased, he does not deserve any compassionate consideration and that therefore, his conviction and sentence ought to be upheld. Before embarking upon the evaluation of the arguments advanced, it would be appropriate to make a summary survey of the evidence on record. 8. PW-1 Smt. Junmoni Gogoi, the wife of the deceased testified that on the date of the occurrence, i.e., on 11.11.2000, at about 7.30 p.m. the appellant-accused started hurling abuses at her husband, for which the latter went to his house to confront him therewith. The witness disclosed that earlier in the day, the son of the appellant-accused had sustained some injury while playing with her husband and that he (appellant-accused) after coming to learn of the same, on his return, had started abusing her husband. The witness stated that as the appellant-accused did not respond to the queries made by her husband, she called him back and on his return was abused by the appellant-accused from beside a hut. She stated that the appellant-accused, thereafter flung a rake at her, which instead struck the deceased on his face, so much so, that it's prongs got embedded therein. As the injured husband fell with the injuries, the witness tried to pull out the rake unsuccessfully and, thus, raised a commotion hearing, which her mother came to the place and pulled out the rake. The injured became unconscious profusely bleeding. On hearing the hue and cry, a number of people arrived there. The witness stated that she being asked, went to the house of the Gaonbura Dimbeswar and returned with his son. The injured was thereafter taken to the hospital, but he, eventually expired at 2 a.m. there. The witness affirmed to have lodged the FIR and proved the same as Ext-1 with Ext-1(1) as her signature. The witness in clear terms identified the appellant-accused to be the assailant as the night was a moonlit one. She claimed to have seen the incident from about a distance of about 30 feet. The witness affirmed to have lodged the FIR and proved the same as Ext-1 with Ext-1(1) as her signature. The witness in clear terms identified the appellant-accused to be the assailant as the night was a moonlit one. She claimed to have seen the incident from about a distance of about 30 feet. She stated about the seizure of the rake and also identified the same in course of her testimony in court. She, however, admitted that her husband at the relevant time was mentally ailing to some extent. In cross-examination the witness disclosed that the appellant-accused attempted to kill the deceased earlier and that her husband had also assaulted her parents. 9. PW-2 Smt. Ketaki Gogoi is the mother of the appellant-accused who reiterated the testimony of PW-1 with regard to the injury of the son of the appellant-accused and the abuses by the accused-appellant in the evening of the date of the occurrence. She stated to have come to the place of occurrence on hearing the cries of her daughter (PW-1) to see that his son-in-law was lying in an injured condition in the space between the house of the appellant-accused and the deceased. She claimed to have pulled out the rake from the face of her son-in-law. She also proved the presence of the appellant-accused near the deceased. She confirmed to have handed over the rake to the police for seizure and also proved the seizure list, Ext-2 and identified the rake as Mat. Ext-1 in Court. In cross-examination, however, this witness admitted of not having seen the actual assault on her son-in-law. She also indicated of the mental illness of the deceased. 10. PW-3 Sri Dimbeswar Gogoi, is the Gaonbura of the village who stated to have signed the FIR, Ext-1 written by PW-1 (Informant). PW-4 Smt. Jyoti Gogoi, the wife of the appellant-accused is a seizure witness of the rake. In cross-examination, however, she stated to have seen the rake only when it had been so seized. She expressed ignorance about the manner in which the incident had taken place. 11. PW-5 Dr. Amal Kr. Phukan who had performed the post mortem examination on the dead body, being identified by the police personnel as mentioned in his evidence stated to have found the following 3(three) three injuries - 1. She expressed ignorance about the manner in which the incident had taken place. 11. PW-5 Dr. Amal Kr. Phukan who had performed the post mortem examination on the dead body, being identified by the police personnel as mentioned in his evidence stated to have found the following 3(three) three injuries - 1. Incised injury on the left side of the face, measuring 4 cm x 2 cm x 2 cm. 2. Incised injury below the left eye, 2 cm x 2 cm. 3. Incised injury on the forehead, 3 cm x 2 cm. According to this witness, there was subdural hoematomas and intracerebral haemorrhage present below the vertex of the head. He opined that the cause of death was due to coma due to the head injuries sustained which was caused by use of heavy pointed instrument. In cross-examination, this witness ruled out the possibility that such injuries could be caused by a fall on the ground. 12. PW-6 Sri Debendra Nath Hazarika is the investigating officer of the case who in details indicated the steps taken by him resulting in the laying of the charge sheet against the appellant-accused. He, inter alia, stated with reference to the sketch map (Ext-4) that there was no other house near the place of occurrence except those of the deceased and the appellant-accused. He further disclosed, that in course of the investigation, he did not gather any idea that the deceased was mentally deranged or that he at the time of occurrence was drunk. 13. Sri Bhogeswar Gogoi, DW-1, father of the appellant-accused expressed ignorance about the mental illness of his son-in-law, the deceased. He, however, admitted he, his son and the deceased were habituated to drinking. He admitted of a quarrel between the appellant-accused and the deceased in the night of the occurrence, following which the latter had died. He stated that the deceased was a foul-mouthed person. 14. The appellant-accused who examined himself as DW-2 stated that after returning home on the date of the occurrence, he could come to learn that his son had sustained some injuries while playing with the deceased. According to him when he sought to inquire about the reason therefor, the deceased armed with a small knife rushed at him with a view of assault him, for which he ran away and spent the night in the house of his neighbour Haren Gogoi. According to him when he sought to inquire about the reason therefor, the deceased armed with a small knife rushed at him with a view of assault him, for which he ran away and spent the night in the house of his neighbour Haren Gogoi. He admitted that his house was near the place of occurrence which was close to that of the deceased. He admitted to have frequent quarrels with the deceased. 15. It would, thus, be clear from the evidence on record that except PW-1 none has seen the incident. According to this witness she was accompanying the deceased when the appellant-accused had abused him and had thrown the rake at her, which eventually hit her husband, resulting in injuries to which he finally succumbed. Judged by the evidence of this witness, it can be concluded that the place of occurrence was on the way between the house of the appellant-accused and the deceased. To that extent, the location of the place of occurrence as mentioned in the sketch map tally's with the one where the actual assault was made as per the version of PW-1. On a consideration of the evidence of this witness, as a whole, we cannot persuade ourselves to disbelieve her. Though, an attempt has been made by the learned amicus curiae to discredit the witness by contending that having regard to the place of occurrence as referred to in the sketch map, it was impossible for her to witness the incident, considering her categorical statement that at the time of the assault she had been with her husband, this plea does not appeal for acceptance. The evidence of the investigating officer indicates that the area was sparsely populated with practically no house in the neighbourhood of the place of occurrence. Though, PW-1 and PW-2 have stated about the presence of some neighbours, non-examination of any one of more of them does not per se in our opinion render the prosecution case unworthy of credit. The contention of mental illness of the deceased also when viewed on the measure of the evidence as a whole, does not have any decisive bearing. Even assuming that he at the relevant point of time was not in a perfect state of mental health, in view of the clear and categorical evidence of PW-1, the prosecution case on that count alone is not liable to be rejected. Even assuming that he at the relevant point of time was not in a perfect state of mental health, in view of the clear and categorical evidence of PW-1, the prosecution case on that count alone is not liable to be rejected. PW-2, though not an eyewitness of the incident, her testimony is supportive of that of PW-1 in all material particulars otherwise. The evidence of DW-1 and DW-2 when read in contradistinction to the statement on oath, of PW-1 and PW2 does not commend for acceptance. PW-1 and PW-2 both being closely related to both the deceased and the appellant-accused and there being nothing on record to disbelieve their evidence on oath, on a scrutiny of the materials on record, we do not feel inclined to attach much premium to the defence evidence so much so, to outweigh the testimony of these witnesses. That the appellant-accused is the perpetrator of the offence in the above facts and circumstances stands proved. 16. The above, notwithstanding considering the factual setting in which the incident had occurred, leading to the unfortunate death of the husband of the PW-1, we feel inclined to positively respond to the submission made on the aspect of sentence to be awarded to the appellant-accused. The deceased and the appellant-accused admittedly were close relations. There is evidence to prove that the son of the appellant-accused was hurt in a play game with the deceased for which the appellant-accused got enraged and accosted the deceased therewith. The root cause of the grim incident, can clearly be traceable to this reason. Altercations followed and it is not unlikely that in the fit of the rage the appellant-accused had hurled the rake which he found handy nearby at the deceased to give vent to his feelings. As ill luck would have it, the rake hit the deceased on the face resulting in injuries which caused his death. The injuries disclosed by the doctor in course of the post mortem examination, we find are wholly inconformity with the ocular evidence to this effect. As ill luck would have it, the rake hit the deceased on the face resulting in injuries which caused his death. The injuries disclosed by the doctor in course of the post mortem examination, we find are wholly inconformity with the ocular evidence to this effect. Be that as it may, in the background in which this assault was made and the conduct of the appellant-accused thereafter in not pursuing his attack on the injured who fell on the ground, in our estimate are pointers to the fact that, though the offending act was committed by him on the spur of the moment with the knowledge, that it was likely to cause death of the person hit by the rake, there was essentially no intention on his part to cause death thereby or cause such bodily injury likely to cause death. The appellant-accused, in course of his examination under Section 235, Cr.P.C has inter alia, mentioned that he is the only adult male member of his family, which comprises of old parents, his wife, and minor children and that he is the sole bread earner to sustain them. The records reveal that meanwhile the appellant-accused had been in detention for almost 8(eight) years. The materials on record do not disclose any past adverse antecedent of his. 17. On a totality of the considerations as hereinabove, we are, therefore, of the view, that in the attending facts and circumstances, the conviction of the appellant-accused ought to be altered to one under Section 304, Part II of the Indian Penal Code and the sentence be reduced to the period already undergone. Ordered accordingly. In the result, the appeal stands partly allowed. In view of this rendering, the appellant-accused would be set at liberty forthwith. We assess the fee of the learned amicus curiae at Rs. 3,500 to be paid by the State. Appeal allowed.