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2010 DIGILAW 12 (SIK)

Durga Prasad Chettri v. State of Sikkim

2010-08-13

P.D.DINAKARAN, S.P.WANGDI

body2010
JUDGMENT DINAKARAN, C. J. (1) The appellant is the sole accused in Sessions Case No. 11 of 2006 on the file of the learned Sessions Judge, South and West Sikkim at Namchi. The appellant questions the correctness of the judgment dated 23/12/2008 rendered in the said Sessions case, wherein the appellant was convicted for the offence punishable under Section 302, I. P. C. on the charge that the appellant committed the murder of his younger brother Shiva Kumar Chettri on 26/2/2006. The charge against the appellant was that at about 3.30 p.m. on 26/2/2006 the appellant committed murder by intentionally causing death of Shiva Kumar Chettri of Damthang Dew Busty, South Sikkim, thereby committed an offence punishable under Section 302,I. P. C. (2) When the accused was questioned of the charges, the accused denied the same and pleaded that he was innocent, but falsely implicated in the case. To prove its case, the prosecution examined 18 prosecution witnesses including the Investigation Officer. Out of them only 13 witnesses were examined as 5 witnesses were tendered by the prosecution, as they were close relatives of the accused and they were not relevant witnesses. (3) The prosecution version, as unfolded during the trial is stated as follows : PW 2, Kamal Kumar Chettri lodged a oral complaint before the Temi Police Station to the effect that on 26-2-2006 evening he had taken his buffaloes to Jour Phukuri so that they could drink water. When he returned home with the buffaloes at around 17.30 hrs. he found that his son, Om Prakash Chettri, aged 6 years old, was weeping and when questioned, the child replied that his uncle Shiva Kumar Chettri (deceased) had been beaten up by his another uncle Durga Prasad Chettri (accused). Upon hearing this, the complainant went to the field and found his youngest brother Shiva Kumar Chettri (deceased) was lying dead, below the cow-shed of Durga Prasad Chettri. But Durga Prasad Chhetri was found missing. The verbal complaint of PW 2, Kamal Kumar Chettri was reduced into writing, under Section 154 of Cr. P. C. and got registered as a FIR for an offence punishable under Section 302,I. P. C. on the file of Temi P.S. The accused Durga Prasad Chettri thereafter was taken for investigation. But Durga Prasad Chhetri was found missing. The verbal complaint of PW 2, Kamal Kumar Chettri was reduced into writing, under Section 154 of Cr. P. C. and got registered as a FIR for an offence punishable under Section 302,I. P. C. on the file of Temi P.S. The accused Durga Prasad Chettri thereafter was taken for investigation. (4) PW-18, the Investigating Officer, along with the complainant, went to the place of occurrence and found the dead body of the deceased was lying in the field. He conducted inquest over the dead body of the deceased, seizing a pair of slipper and a woolen cap lying near the dead body. PW 18, the Investigating Officer also collected blood soaked mud from the spot in presence of the witnesses. During the inquest, the Investigating Officer noticed that the deceased had sustained six deep cut injuries on various parts of the body including head and facial region. Thereafter the body was shifted to the District Hospital at Namchi and PW 1, Dr. K. B. Gurung, Medico-Legal Specialist from STNM Hospital, Gangtok conducted the post mortem. PW 1 deposed that the dead body of the deceased was forwarded vide dead body challan marked Exhibit-1 and identified Exhibit 1(a) as his signature. Along with the dead body challan an inquest report was also forwarded which was perused by PW 1 before the autopsy was conducted. Exhibit- 2 is the inquest report and Exhibit-2(a) is the signature of PW 1. Exhibit-3 is the requisition filed by PW 18, Investigating Officer for preservation of blood sample, hair sample and viscera of the victim and Exhibit-3(a) is the signature of Dr. Keshree Rai, District Medical Officer of the District Hospital, Namchi, who had received the requisition Exhibit-3. PW 1 deposed that he is acquainted with the signature of Dr. Keshree Rai. PW 1 has also identified Exhibit-3(b) as his own signature. During the autopsy examination, PW 1 observed the following findings : "A. General: Rigor mortis fully developed all over the body. Post mortem lividity was fixed on the back. Greenish discolouration over the right side of the abdominal. Anti-mortem injuries :- 1. Multiple small lacerated incised wound in and around scalp. 2. A bone deep lacerated injury 4x2x1 c.m. on the right frontal region commencing 2 c.m. above the right eye brow and ending in upperlope of right ear. 3. Post mortem lividity was fixed on the back. Greenish discolouration over the right side of the abdominal. Anti-mortem injuries :- 1. Multiple small lacerated incised wound in and around scalp. 2. A bone deep lacerated injury 4x2x1 c.m. on the right frontal region commencing 2 c.m. above the right eye brow and ending in upperlope of right ear. 3. A bone deep lacerated incised wound 5 x 2 x 1 cm. on the right frontal region one cm. below the wound No. 2 involving right cheek and right lower ear brow. 4. Incised wound 3 x 2 x 1/2 c.m. on the left hand palmar aspect. 5. Incised wound cm. on lower part of nose right side. 6. Incised wound 3x2x1 c.m. on the outer aspect of the right hand. 7. Incised wound 2 and 1/2x2x1 c.m. on the outer aspect of the right hand 1 c.m. below the wound No. 6. B. Head and Neck. Intact and healthy. C. Chest Intact and healthy. D. Abdomen Intact and healthy. E. Spinal Column Intact and healthy." On the above findings, PW 1 opined that the death occurred approximately 34 to 36 hours before the autopsy was conducted and the cause of death was stated as follows : "Shock as a result of Haemorrhage due to multiple injuries sustained produced by sharp cutting weapon." Exhibit-4 is the medico legal autopsy report prepared by PW 1 and Exhibit-4(a) is identified as the signature of PW 1. (5) The nature of injuries, found on the body and mentioned in the Inquest Report disclosed that the death of the deceased was due to shock as a result of haemorrhage due to multiple injuries sustained/produced by a sharp cutting weapon, is not natural but culpable homicide. Hence PW-18, the Investigating Officer proceeded further with the investigation of the matter. At first the accused informed the Investigating Officer that he had killed the deceased by assaulting with a wooden plank but later on he came out with the version that he killed the deceased with a chuppi (knife). PW 18, the Investigating Officer has deposed that the accused himself made a statement under Section 27 of Indian Evidence Act, 1872 disclosing where he had concealed the weapon of offence with which he inflicted injuries on the deceased. PW 18, the Investigating Officer has deposed that the accused himself made a statement under Section 27 of Indian Evidence Act, 1872 disclosing where he had concealed the weapon of offence with which he inflicted injuries on the deceased. Based on that statement, the weapon of offence, the Chuppi (knife), was also recovered and seized in the presence of the witnesses, who are examined as PW 13, Pema Sherpa, PW 14, Phurba Sherpa, PW 15, Tshering Sherpa, PW 16, Karna Bdr. Poudyal and PW 17, Dinesh Chettri. PW 18, the Investigating Officer then recorded the statement of PW 3, Dhan Bahadur Karki, who is the father of the deceased and P. W. 2 Kamal Chettri are the brother and the father of the deceased. PW 8, Samal Kumar Chettri, PW 9, Prem Bdr. Chettri and PW 10, Nabin Chettri, who are also brothers of both the accused and the deceased. PW 4, Kundra Maya Chettri, mother of the accused, PW 5 Kunti Maya Chettri, PW 6, Kabita Chettri, PW 7, Tula Rani Chettri, are sisters-in-law and PW 11, Binita Chettri, were not examined as the prosecution tendered them being not relevant. PW 12, Deo Kumar Pradhan, is the Officer- in-Charge, Temi Police Station, who registered the FIR. (6) In the light of the above witnesses, examined on behalf of the prosecution, PW 18, the INvestigating Officer categorically deposed that even though there was no eyewitness, he has recovered the material object M. O.-III (weapon of offence), in presence of witnesses namely PW 13 and PW14, which was used by the accused with the intention to commit the murder of the deceased, Shiva Kumar Chettri. The accused was also questioned under Section 313, Cr. P. C, however, the accused denied the case as alleged by the prosecution and also denied the charges and pleaded that he was innocent and had been falsely implicated in the case. The accused neither examined any witnesses nor marked any documents in his defence, hence complete denial. (7) The learned Sessions Judge on the evidence available on record convicted and sentenced the accused to undergo simple imprisonment for life and also sentenced him to pay a fine of Rs. 5,000/- and in default, to undergo further simple imprisonment for six months. The accused neither examined any witnesses nor marked any documents in his defence, hence complete denial. (7) The learned Sessions Judge on the evidence available on record convicted and sentenced the accused to undergo simple imprisonment for life and also sentenced him to pay a fine of Rs. 5,000/- and in default, to undergo further simple imprisonment for six months. The learned Sessions Judge in his judgment dated 23-12-2008, has stated that even though there was no eye-witness, he was satisfied with the prosecution has proved its case based on the extra judicial confession made under Section 27 of the Evidence Act, 1872, namely the disclosure statement, pursuant to which, the material object, which was used for the crime, was recovered. Learned Sessions Judge based on the evidence of the Investigating Officer, PW 18 and that of the medical witness PW 1, came to the conclusion that the Prosecution has proved the guilt of the accused by circumstantial evidence, establishing the link between the chain of evidence, beyond reasonable doubt in all probabilities, that the accused only had committed the crime. Hence the appeal. (8) Mr. B. Sharma, the learned senior counsel appearing for the appellant fairly argued for alteration of the charge and modification of the sentence. In the course of his arguments, Mr. Sharma invited out attention to the deposition of PW 18, the Investigating Officer, which is extracted as here under : "It is true that it was the deceased who had carried M.O.-III. It is true that as per my findings during the course of investigation the deceased went to the field where the accused was working. The deceased was carrying M.O. Ill in his hand. The deceased without any rhyme and reason started hurdling, abusing words to the accused. The accused was not carrying any weapon and he was bear handed at the relevant time. It is true that the victim was aggressor. It is true that the deceased had damaged the property of the accused i.e. cow-shed and had also thrown away the utensils kept for giving fodder to the cows. It is true that the deceased also assaulted the accused with wooden beam. It could be possible that the accused Was under the apprehension for the danger of grievous hurt, death or from an attempt which the deceased had committed on the accused by assaulting him and damaging his property. It is true that the deceased also assaulted the accused with wooden beam. It could be possible that the accused Was under the apprehension for the danger of grievous hurt, death or from an attempt which the deceased had committed on the accused by assaulting him and damaging his property. It is true that the accused had told the victim that you are drunk and please go to home and take rest, after the first assault by the deceased to the accused. The deceased again came back with a chuppi and assaulted the accused later on. The accused was under the apprehension of the danger to his body and property. It is true that there was no intention of the part of the accused to cause death of the deceased at the relevant time." According to Mr. B. Sharma, the learned senior counsel appearing for the accused, even though it is true that the deceased who carried the MO-III, the Chuppi (knife), which was used to, pause grave injuries on the body of the deceased Shiva Kumar Chettri, none of the" evidence has been examined by the prosecution, nor speaks about the intention of the accused to cause the death of the deceased, by inflicting grave injuries on the body of the deceased with the intention to cause death. On the other hand, Mr. Karma Thinlay Namgyal, learned Additional Public Prosecutor could not invite our attention to any of the deposition of the prosecution witnesses that the accused with the intention to cause death of Shiva Kumar Chettri, carried the weapon in his hand and inflicted the grave injuries with an intention to cause death of the deceased. The learned Additional Public Prosecutor emphatically contends that the evidence of other witnesses would show that particularly, in the extra judicial confession recorded under Section 27 of the Indian Evidence Act, 1872, the weapon used in the crime, M. O. Ill, namely the knife, which was used to commit the crime was recovered, would go to show that he inflicted the grave injuries on the body of the deceased as recorded in the post -mortem certificate prepared by PW 1, which is sufficient to cause of death and hence the prosecution beyond any doubt brought home the guilt of the accused. Hence, the conviction of the accused under Section 302, I. P. C, and sentenced him to undergo simple imprisonment for life. Hence, the conviction of the accused under Section 302, I. P. C, and sentenced him to undergo simple imprisonment for life. (9) We have given our careful consideration to the submissions of both sides. This is a case of circumstantial evidence. No eye-witness is either cited or examined. Even though the FIR was based on the statement made by an eye-witness, viz. Om Prakash Chettri, aged 6 years old, he was neither cited nor examined by the prosecution. Except the official witnesses, viz. the IO PW 18, Officer-in-Charge, Temi P. S., PW 12 who registered the FIR, witnesses Pema Sherpa, PW 13, Phurba Sherpa, PW 14, Tshering Sherpa, PW 15, Karna Bdr. Poudyal, PW 16 and Dinesh Chettri, PW 17, and the medical witness PW 1, all other witnesses are the relatives of the accused and deceased. PW 4, PW 5, PW 6 and PW 7 namely mother and sisters-in-law and PW 11, Bihita Chettri were not examined and tendered by the prosecution, as they were close relatives of the accused and were hot relevant witnesses. 13.2 The prosecution witnesses do not dispute the fact that - (i) the deceased was carrying M. O.-III in his hand; (ii) the deceased without rhyme or reason started hurling abusive words to the accused; and (iii) the accused was under the apprehension that the grievous injuries would cause the death of the accused. (10) PW 18, the Investigating Officer clearly states that the deceased/victim was the aggressor, and that the deceased had damaged the property of the accused and thrown away the utensils kept for giving fodder to the cows. The deceased also assaulted the accused with wooden beam which resulted in an altercation between the accused and the deceased. PW 18 further states that even though after the first assault by the deceased, the accused requested him to go home and take rest as he was drunk, the deceased again came back with a chuppi (knife) and assaulted the accused. Even though Mr. PW 18 further states that even though after the first assault by the deceased, the accused requested him to go home and take rest as he was drunk, the deceased again came back with a chuppi (knife) and assaulted the accused. Even though Mr. B. Sharma, the learned senior counsel appearing for the accused contends that the accused was under apprehension of danger to his body and property and as a private defence, of course, without any intention to cause the death of the deceased, caused grave injuries to the body of the deceased by using a sharp cutting weapon, which caused the death of the deceased, and pleads that the case falls under Exception 2 of Section 300, I. P. C, as the accused was under apprehension of danger to his body and property and, therefore, without any intention to cause the death of the deceased, caused grave injuries to the body of the deceased for his right of private defence, which, resulted in death of the deceased, and that the accused did not have any premeditation to commit the murder, of the deceased, we are unable to appreciate the said contentions, because the evidence of the medical witness PW 1 and the post-mortem certificate shows that the accused has,caused six grave injuries on the body of the deceased by using a sharp edged weapon and on the other hand there was no injury found on the body of the accused, nor the accused had complained so at any point of time, therefore, there is absolutely no evidence to show that the accused had acted in good faith fof his right of private defence. We are, thus, unable to agree that the accused had acted in good faith for his right of private defence as he had exceeded the power given to him by law, even though, he did not have any premeditation to commit the murder of the deceased. (11) However, we are satisfied that the accused did not have any intention to cause the death of the deceased, but was energized by the sudden provocation by the act of the deceased, who was the aggressor, as it was the deceased, who attacked the accused first. (11) However, we are satisfied that the accused did not have any intention to cause the death of the deceased, but was energized by the sudden provocation by the act of the deceased, who was the aggressor, as it was the deceased, who attacked the accused first. As a result, the accused having lost his self control on account of the provocation, which was not voluntarily provoked by the accused himself, attacked the deceased without any intention to cause the death of the deceased. We are also satisfied that the provocation caused by the deceased was not given by anything done in obedience to law nor the provocation was given by anything done in the lawful exercise of defence. (12) Even though the accused had no intention to cause the death of the deceased, his act of causing six grave injuries on the body of the deceased, by using a sharp edged weapon, and he having the knowledge that such act of causing grave injuries to the deceased was likely to cause the death of the deceased, we are altering the charge framed against the accused under Section 302,I.P.C. and while modifying the same for the offence punishable under Section 304, Part II, I.P.C. sentenced him to undergo 10 years simple imprisonment with a fine of Rs. 5,000/- and in default to undergo further simple imprisonment for six months. The period of imprisonment undergone shall be considered as part of the sentence. In the result, the conviction made under Section 302,I. P. C. stands modified and converted into Section 304, Part II, I.P.C. and sentenced him to undergo 10 years simple imprisonment with a fine Of Rs. 5,000.00. Order accordingly.