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2009 DIGILAW 98 (GAU)

Tami Nguri v. State of Arunachal Pradesh

2009-02-11

AFTAB H.SAIKIA, HRISHIKESH ROY

body2009
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. C. Baruah, learned senior counsel assisted by Mr. T. Baruah, learned Counsel appearing for the Appellant. Also heard Mr. B. Banerjee, learned Public Prosecutor, State of Arunachal Pradesh (for short 'the learned PP') representing the State. 2. The conviction of the Appellant under Section 302 of the IPC and sentence to undergo imprisonment for life and to pay a fine of Rs. 1000/- and in default in payment of fine, to undergo simple imprisonment for 6 months, handed down by the Addl. District and Sessions Judge (FTC), East Zone, Namsai (hereinafter referred to as the learned trial Judge) by judgment and order dated 18.1.2005 rendered in Sessions Case No. 18/93, have been assailed by the Appellant in Criminal Appeal No. 78/2005. 3. Simultaneously, in terms of Regulation of 30(1) of the Assam Frontier (Administration of Justice) Regulation, 1945, the impugned judgment has been referred to for confirmation to the High Court and the same is registered as Crl. Ref (H) No. 4/2005. 4. Since both the Criminal Appeal No. 78/2005 and Crl. Ref (H) No. 4/2005 arise out of the same proceeding, both are taken up for analogous hearing and are disposed of by this common judgment. 5. The facts in brief, as unfolded by the prosecution story, are that one Kedar-nath Agarwala (PW 1) on 28.3.1993 lodged an ejahar (FIR) with the Changlang Police Station alleging that on the same day i.e. on 28.3.1993 at about 12:30 p.m., the Appellant came to the shop of the informant's brother Murarilal Agarwala (hereinafter referred as 'the deceased') and purchased 20 kgs. of rice. After purchasing the rice, he asked for a packet of cerelac on credit. On refusal to give the cerelac on credit, hot altercation between the deceased and the Appellant took place. Then the Appellant took out his dao and gave severe blows on the deceased who succumbed to such injuries. 6. The police started investigation on the basis of the allegations as mentioned in the FIR and submitted charge-sheet against the Appellant. During the trial, the prosecution examined as many as 10 witnesses including the two salesmen in the deceased's shop, PW 2, Madhu Rawat and PW 3, Shankar Singh projecting them as eye-witnesses. PW 4, Dr. Sudip Bhattacharjee was produced as official witness as he conducted the autopsy on the dead body of the deceased. During the trial, the prosecution examined as many as 10 witnesses including the two salesmen in the deceased's shop, PW 2, Madhu Rawat and PW 3, Shankar Singh projecting them as eye-witnesses. PW 4, Dr. Sudip Bhattacharjee was produced as official witness as he conducted the autopsy on the dead body of the deceased. The Appellant was examined under Section 313, Code of Criminal Procedure. The Appellant also made a confessional statement (Ext. 6) under Section 164, Code of Criminal Procedure before PW 7, Mr. D. Riba who was a Judicial Magistrate, 2nd Class, at the relevant time. 7. The learned trial Judge having thoroughly appreciated the evidence on record of all the witnesses and also having gone through the confessional statement made by the Appellant, found the Appellant guilty of the offence of killing the deceased and convicted and sentenced him accordingly for murder. 8. Mr. C. Baruah, learned senior counsel appearing for the Appellant, assailing the impugned conviction and sentence, has forcefully submitted that the evidence of PW 2 and PW 3 so projected by the prosecution as eye-witnesses cannot be accepted to be reliable and trustworthy as those evidences were full of contradictions and inconsistencies. According to him, both the witnesses were employed as salesmen in the shop of the deceased. As such they were interested and partisan witnesses in deposing in a trial for murdering their master, the deceased and their evidence cannot sustain the conviction of the Appellant under Section 302, IPC. 9. The basis thrust of the learned senior counsel is that admittedly there was a quarrel on the issue of supplying gunny bag to carrying the rice, purchased from the deceased's shop by the Appellant and such squabble was initiated by the deceased himself by scolding and beating the Appellant by a scale. When the deceased was advancing towards him by saying that he would beat him again, the Appellant got provoked and on the spur of moment, out of such sudden provocation, hit him with dao which was normally carried by the people of the hill area, as he belonged to the tribe of 'Hill Miri'. According to the learned Counsel, there was no intention to kill the deceased by the Appellant and the entire incident happened suddenly due to the provocation triggered by the deceased. According to the learned Counsel, there was no intention to kill the deceased by the Appellant and the entire incident happened suddenly due to the provocation triggered by the deceased. It is also submitted that in the above circumstances, it is not a case to attract the provisions of Section 302, IPC to convict the Appellant for murder. 10. Mr. B. Banerjee, learned PP, in support of the impugned conviction and sentence, has straightway taken us to the medical evidence of Dr. S. Bhattacharjee, who was examined as PW 4 to show that the Appellant had the intention to kill the deceased since the Appellant inflicted as many as 4 incised injuries on the body of the deceased by the offending weapon. 11. It would be pertinent to quote the injuries so found by the PW 4 who conducted autopsy of the deceased's body: One injury on the right face extending from the outer side of the eye cutting through the ear to the back of the head, 30 cm. in length, 5 cm. in breadth and it was bone deep. It was a sharp-cut injury. The second injury was cutting through the middle of back and cutting through the vertebrae extending upto muscle. The size of the injury 20 cm. x 3 cm. and bone deep. The injury was sharp cut and linear. There was another injury on the right thigh, and cutting through the bone. The size was 15 cm. x 5 cm. and bone deep. The forth injury was sharp cut one on the back of all the fingers of the left hand except the thumb. 12. The learned PP has also contended that the two eyewitnesses, namely PW 2, Madhu Rawat and PW 3, Shankar Singh vividly narrated the entire story as seen by them which would clearly to go to indicate that it was the Appellant himself who was involved in the killing of the deceased. Since their evidence appear to be trustworthy and believable and more importantly the entire testimony of these two eye-witnesses were fully corroborated by the confessional statement made by the Appellant, the learned PP has submitted that the impugned conviction and sentence deserve approval of this Court. Since their evidence appear to be trustworthy and believable and more importantly the entire testimony of these two eye-witnesses were fully corroborated by the confessional statement made by the Appellant, the learned PP has submitted that the impugned conviction and sentence deserve approval of this Court. It is also urged that the confessional statement made by the Appellant who clearly indicated the factual circumstances under which he had administered the dao blows, was recorded by the Magistrate (PW 7) by observing all the formalities required under the law and the said confessional statement is admissible and can be relied upon to lend support for the conviction. According to him, there are no infirmities and illegalities committed by the learned trial Judge in passing the impugned judgment and order and the trial Court was wholly correct and fully justified in convicting and sentencing of the Appellant under the offence charged. 13. We have given thoughtful consideration to the extensive submissions made by the learned Counsel for the parties. We have also meticulously analyzed and scrutinized the testimonies of all the witnesses, specially PW 2 and PW 3, who were adduced as eyewitnesses by the prosecution, the medical evidence of PW 4 and the confessional statement made by the Appellant before the PW 7. 14. It has come through the evidence on record that the Appellant while purchasing 20 kgs. rice at the deceased's shop made a request to supply a gunny bag to carry the purchased rice. Conceding to his request, PW 2, the salesman, gave him a gunny bag and at that time the Appellant did not make any quarrel or miss-behave with anybody in the shop. However, such offer of the gunny bag to the Appellant was disapproved by the deceased and he started an altercation with the salesman PW 2 and he also rebuked him. The deceased then turned to the Appellant and scolded him and beat on Appellant's finger by a scale. Thereafter the deceased again advanced towards the Appellant to beat him again with the scale. Then the Appellant took out a dao, carried by him in normal course and gave 3 blows on the deceased which resulted in 4 injuries as is evident from the medical evidence. 15. Thereafter the deceased again advanced towards the Appellant to beat him again with the scale. Then the Appellant took out a dao, carried by him in normal course and gave 3 blows on the deceased which resulted in 4 injuries as is evident from the medical evidence. 15. The entire factual situation as exhibited by the testimony of those witnesses clearly reveal that there was a quarrel, started with the rebuke and scolding of the Appellant by the deceased and on the spur of moment, due to such sudden provocation, the Appellant dealt those fatal blows on the deceased with his dao. 16. At this stage, Mr. C. Baruah, learned senior counsel has submitted that the Appellant was provoked to strike those blows causing four injuries in exercise of his right of private defence, when the deceased surged forward on the Appellant to give him more beating with the scale. According to him, the Appellant being a rustic and simple person, because of such move of the deceased towards him, apprehended threat to his life, which made him to retaliate with his dao for his self protection and as such, the Appellant's conviction under Section 302 of the IPC cannot be sustained. The plea of right of private defence as taken by the learned Counsel, according to us, taking note of the fact situation herein, would not be available to the Appellant in as much as the Appellant in exercising such right exceeded his right by attacking the deceased with a dao with several blows when the deceased had beaten with a scale only. 17. However, having considered the medical evidence and also keeping in mind the mitigating circumstances of the sudden provocation, as already narrated above, we are of the considered view that it is none but the Appellant himself who inflicted the fatal blows because of the scuffle between the deceased and the Appellant. At the same time, in our opinion, the Appellant certainly would have the knowledge that such forceful and repeated assault would result in the death of the deceased. Therefore, given the mitigating factor of sudden provocation prompted by the deceased, according to our considered opinion, the offence would not be one to come under Section 302 of the IPC, but it would be more appropriate to hold the Appellant guilty under Section 304 Part I of the IPC. 18. Therefore, given the mitigating factor of sudden provocation prompted by the deceased, according to our considered opinion, the offence would not be one to come under Section 302 of the IPC, but it would be more appropriate to hold the Appellant guilty under Section 304 Part I of the IPC. 18. Accordingly, we set aside the impugned conviction of the Appellant under Section 302 of the IPC and instead convict him of the offence under Section 304 Part I of the IPC. Consequently the sentence stands also modified and the Appellant is sentenced to undergo rigorous imprisonment for a period of 8 years. 19. It is made clear that the period already spent by the Appellant in the custody shall be set-off against the sentence passed by this Court. 20. The Crl. Appeal No. 78/2005 stands partly allowed to the modification of conviction and sentence, as indicated above. The Crl. Ref (H) No. 4/2005 is also answered herewith accordingly. 21. Send down the LCR forthwith.