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2010 DIGILAW 571 (GAU)

Sankar Deb v. State of Tripura

2010-08-12

UTPALENDU BIKAS SAHA

body2010
JUDGMENT U.B. Saha, J. 1. The Appellant on being convicted under Section 304 (Part-I) of the Indian Penal Code ('IPC') and having been sentenced to suffer R.I. for ten years and to pay a fine of Rs. 7,000, in default to suffer S.I. for two years by the learned Additional Sessions Judge, West Tripura, Agartala, Court No. 3 vide his judgment dated 7.1.2004 in S.T. 149(WT/K) of 1995 has preferred this appeal. 2. Heard Mr. S. Lodh, learned Counsel for the Appellant and Mr. A. Ghosh, learned Addl. Public Prosecutor appearing for the Respondent State. 3. The prosecution case, in short, is as follows: - The accused-Appellant was working as an agricultural labour in the house of one Karuna Deb (PW5) of Samatal Padmabil, Khowai. While the accused-Appellant was working as such he had a quarrel with one Shantu Deb (PW13), a neighbour of PW5 on the issue of cattle head and on that issue the accused-Appellant had beaten PW13, Shantu for which the mother of PW13 Smt. Sabita Deb (PW1) and elder brother Shri Pradip Deb (PW12) reported the matter to the village I radhan Shri Anjan Deb (PW2) and sought justice. After few days of quarrel on 24.12.1994 at about 8/8.30 p.m. PW2 went to the house of PW5 in whose house the accused-Appellant was working to enquire about the quarrel and the assault and at that time the accused-Appellant picked up quarrel with PW2, village Pradhan and on hearing the quarrel deceased Goutam Deb along with his cousin brother (PW12) went to the house of PW5 and they had some altercation with the accused-Appellant and at that time PW2 advised the deceased Goutam and PW12 Pradip to go to their house and accordingly, when they were on the way to their house, the accused-Appellant suddenly picked up a bamboo stick and struck a severe blow on the head of deceased Goutam Deb in the courtyard of PW5, as a result Goutam fell in the courtyard of PW5 and became unconscious. Thereafter, Goutam was shifted to Khowai Hospital and from there he was referred to G.B. Hospital, Agartala and after admission in G.B. Hospital he succumbed to the injury on the following morning. Thereafter, Goutam was shifted to Khowai Hospital and from there he was referred to G.B. Hospital, Agartala and after admission in G.B. Hospital he succumbed to the injury on the following morning. Narrating the aforesaid fact the mother of the deceased Smt. Sabita Deb (PW1) lodged the FIR with S.I. Debashish Banerjee (PW22) at Khowai Hospital and on the basis of the said information a police case was registered being Khowai P.S. Case No. 96/94 under Section 325, IPC and PW22 took up the investigation. While the investigation was set on motion the deceased Goutam succumbed to the injuries and as such Section 302, IPC was added. 4. In course of investigation the accused-Appellant was arrested and produced before the learned SDJM, Khowai (PW19) on 29.12.1994 with a prayer for recording his confessional statement under Section 164 of the Code of Criminal Procedure (' Code of Criminal Procedure ') and on the basis of said prayer learned SDJM, Shri B.B. Bhattacharjee (PW19), the then following the prescribed procedure recorded the confessional statement of the accused-Appellant on 31.12.1994. In course of investigation the investigating authority examined the witnesses and also recovered the weapon of offence at the instance of the accused-Appellant, i.e., the bamboo stick. On completion of investigation, PW22 submitted the charge sheet against the accused-Appellant for committing the offence of murder of deceased Goutam punishable under Section 302, IPC. 5. As the offence of murder is session triable the case was committed by the learned SDJM, Khowai to the Court of Sessions, i.e., learned Sessions Judge, West Tripura, Agartala and the learned Sessions Judge upon receipt of the case record heard the learned Counsel for the parties on 11.12.1995 and framed charge against the accused-Appellant which reads as follows: - That you, on 24.12.1994 at about 20.30 hours at Samatal Padmabil under Khowai Police Station, assaulted Goutam Deb by lathi consequence of which he died at G.B. Hospital on 25.12.1994 at 05.30 hours and thereby committed an offence punishable under Section 302 of the IPC and within my cognizance. 6. After framing charge, the learned Sessions Judge, West Tripura transferred the case to the learned Addl. Sessions Judge, Court No. 3, West Tripura, Agartala. 7. At the time of trial, the accused-Appellant had absconded and a permanent warrant of arrest was issued against him on the basis which he was arrested and produced before the learned Addl. 6. After framing charge, the learned Sessions Judge, West Tripura transferred the case to the learned Addl. Sessions Judge, Court No. 3, West Tripura, Agartala. 7. At the time of trial, the accused-Appellant had absconded and a permanent warrant of arrest was issued against him on the basis which he was arrested and produced before the learned Addl. Sessions Judge on 8.10.1993. Thereafter, the trial of the case was started. 8. In course of trial prosecution examined as many as 22 witnesses and also produced some documents and materials which were exhibited. Out of 22 prosecution witnesses, P Ws 2, 3 and 12 are the eye witnesses of the alleged incident of murder. PW2 in his deposition stated that in the year 1994 when he was gao pradhan of Samatal Padmabil Gram Panchayat the informant Smt. Sabita Deb (PW1), Smt. Karuna Deb (PW5) and the accused-Appellant were residents of that village. On 24.12.1994 at about 8/8.30 p.m. when he went to the house of PW5 to inquire why the accused-Appellant had beaten Shri Shantu Deb (PW13), brother of PW12, Pradip Deb. On reaching there when he asked the accused-Appellant about the allegation made against him he expressed his anger and was talking in a loud voice. Upon hearing the loud voice of the accused-Appellant, PW12 and his cousin brother, deceased Goutam came to the house of PW5 and asked as to what happened to which PW2 told them that he was enquiring about the allegation and ultimately on his request deceased Goutam and PW12, Pradip proceeded to their house. While they were proceeding to their house suddenly the accused-Appellant came out from the kitchen of PW5 with a lathi in his hand and severely hit a blow on the head of deceased Goutam due to which Goutam received injuries and fell down on the courtyard of Karuna Deb (PW5) and became unconscious. Seeing the incident PW2 rushed to deceased Goutam and meanwhile the accused-Appellant fled away from the spot throwing the bamboo stick. PW2 along with others took Goutam to his house and at once shifted him to Khowai Hospital and thereafter to GB Hospital, Agartala as referred to by the Khowai Hospital and on the following morning at about 5/5.30 a.m. Goutam died. He also deposed that when the accused-Appellant hit blow on the head of deceased Goutam, PW12 was there and he fled away due to fear. He also deposed that when the accused-Appellant hit blow on the head of deceased Goutam, PW12 was there and he fled away due to fear. Hearing the noise of mother and aunt of deceased Goutam, P Ws 1 and 3 respectively, some other persons came there. This witness also identified Exbt. M.O.1, the bamboo stick, which was used by the accused-Appellant at the time of committing the offence. There is no material available in his cross-examination to support the case of the accused-Appellant. PW3, Smt. Sandhya Deb in her statement corroborated the evidence of PW2, inter alia, that after hearing the loud voice of the accused-Appellant and PW2, deceased Goutam and PW12 Pradip went to the house of PW5. She also corroborated the fact that after the injury the deceased was taken from his house to Khowai Hospital and thereafter to G.B. Hospital where he succumbed to the injuries. She also identified the accused-Appellant. In her cross also nothing is available to brush aside the case of the prosecution. PW12, Pradip Deb, cousin brother of the deceased stated before the learned trial court that on the date of incident at about 8/8.30 p.m. he was in his house and hearing the altercation between the accused-Appellant and PW2 in the house of PW5 he and the deceased went to the house of PW5 and enquired from PW2 what happened there and on request of PW2 while they were proceeding to their house suddenly the accused-Appellant came out with a lathi and hit on the head of deceased Goutam, as a result Goutam sustained severe injury and fell down on the courtyard of PW5. The accused-Appellant also attempted to blow towards him and out of fear he fled away. While he was fleeing he raised cry and hearing that cry his parents as well as the parents of the deceased rushed to the courtyard of PW5 and in the meantime, the accused-Appellant fled away. He subsequently came to the courtyard of PW5 and along with others shifted the deceased to Khowai Hospital and then to G.B. Hospital, but ultimately on the following morning Goutam died. He also identified the accused-Appellant in the dock. 9. Except the evidence of the aforesaid three witnesses other witnesses examined by the prosecution are not so material, hence it is not necessary for this Court to discuss their evidence on record. He also identified the accused-Appellant in the dock. 9. Except the evidence of the aforesaid three witnesses other witnesses examined by the prosecution are not so material, hence it is not necessary for this Court to discuss their evidence on record. However, at the same time it would not be proper for this Court to avoid discussion on the evidence of Dr. Ashok Chakraborty (PW16) who examined the deceased at Khowai Hospital and Dr. Pijush Kanti Das (PW17) who conducted the autopsy on the dead body of the deceased. Therefore, their evidence are discussed herein below: - PW16 stated before the learned trial court that on 24.12.1994 while, he was working as Medical officer of Khowai Hospital at about 10.15 p.m. deceased Goutam Deb was brought for treatment with a history of assault by blunt weapon and he was unconscious. He examined the patient and found a bruise on the left temporal area of head. He opined that superficially the injury appeared to be simple. The patient was deeply unconscious. There was convulsion. The pupils were equivocal. Light reaction of the pupil was nil. Brady cardia was present. Vomiting was present. Strong suspicion of internal haemorage from signs and symptoms. He referred the patient to G.B. Hospital for further treatment and management. He further stated that an injury over the temporal area of head might extent to frontoparial region also. He had superficially examined the patient in the emergency and there was no scope to deeply examine the area of the injury. PW17 deposed that on 25.12.1994 while he was working as a Medical officer attached to I.G.M. Hospital and was head of the Department of Forensic medicine did post mortem examination over the dead body of Goutam Deb. On examination externally, he found the body was healthy and he found haemotoma with brusse of left frontoparital region 3" x 3" into skull deep with bleeding per ear and nose. In dissection he found all other organs of the body were healthy except the above injury. According to him, the injury stated by him were involving mussles, vessels and brain materials and death was due to haemorrage and shock which was homicidal in nature for grievous head injury and the injury was anti-mortem. He proved the post mortem report, Exbt.6. 10. According to him, the injury stated by him were involving mussles, vessels and brain materials and death was due to haemorrage and shock which was homicidal in nature for grievous head injury and the injury was anti-mortem. He proved the post mortem report, Exbt.6. 10. The accused-Appellant was also examined under Section 313 of the Code of Criminal Procedure and his case was of total denial. 11. Learned trial court upon hearing the parties and on going through the evidence of the witnesses and the exhibited documents and materials convicted the accused-Appellant under Section 304(Part-I), IPC instead of Section 302, IPC and sentenced him to suffer R.I. Office for ten years and to pay a fine of Rs. 7,000, in default to suffer S.I. for two years. 12. While convicting the accused-Appellant, the learned trial court in the impugned judgment noted, inter alia, as follows: - The evidence of above witnesses are very cogent, natural and convincing. Their deposition is not shaken in any manner. I find nothing to put doubt on the statements of those witnesses. Defence has failed to throw any doubt in any manner on the conduct of those witnesses of the fact that they have seen the occurrence, learned Defence counsel argued that the prosecution has not stated anything as to how the witnesses identified the accused at the time of occurrence. I find no merit at all in such argument advanced by learned Defence counsel since the accused and the witnesses are all residents of the same neighbourhood and if was not a sudden attack by the accused in the darkness of night. A quarrel and altercation was going on in the house between known persons and in the midst of quarrel the accused beaten the deceased. The witnesses made clear and unambiguous statement about the incident. There is no evidence at all to show that it was a sudden occurrence and the night was dark that the witnesses could not identify the assailant. So, this argument has got no basis at all. Learned Defence counsel further argued that the witnesses are all interested witnesses and so, their evidence cannot be believed. I find no merit in this argument of learned Counsel also since the defence has misconceived about an interest witness. So, this argument has got no basis at all. Learned Defence counsel further argued that the witnesses are all interested witnesses and so, their evidence cannot be believed. I find no merit in this argument of learned Counsel also since the defence has misconceived about an interest witness. The term 'interested' postulates that the person concerned must have some direct interest in seeing that the accused is some how or otherwise convicted either because he has some animus with the accused or for other reason. No such circumstance is brought on record from the side of defence. The village pradhan is absolutely an independent witness of integrity and qualify. He made an unambiguous and natural statement. The companions of the deceased, i.e., his cousin brother PW12 and the aunt of the deceased PW3 also made/natural statements. PW12, already was with the deceased at the time of occurrence on the spot and PW3 also went there behind them being close neighbour and I find no reason at all to brand this witnesses interested. They are no doubt relatives of the deceased but the witnesses had no such animus with the accused to implicate him falsely. ... On perusal of the statements of P Ws 9, 10 and 11 as well as the statement of PW22, I have no hesitation to say that the essential ingredients to prove a leading to discovery as prescribed under Section 27of the Evidence Act is not established. The I.O. has not recorded the statement of the accused to that effect of the recovery of the weapon of offence. Discovery of a fact must be in consequence of information given by the accused. The evidence does not show that the accused led the police and witnesses to the spot of recovery of the bamboo stick whereas the house owner, i.e., PW9 made a statement that she kept the bamboo stick by the side of her house and she gave it to the I.O. in the evidence of the eye witnesses we have found that the accused left the house after the occurrence throwing the bamboo stick in the courtyard and PW9 kept it by the side of her house and she handed it over to the I.O. in presence of the accused and the accused told that it was the bamboo stick with which he hit the deceased. So, substantially as per law, the leading to discovery, what is required under Section 27 of the Evidence Act, is not proved, but the seizure of the bamboo stick, which is the weapon of offence has got all other probative value about the commission of offence and should be taken as a corroborative evidence of other item of evidence on record. 13. Mr. Lodh, learned Counsel for the accused-Appellant would contend that at the time of alleged incident the accused-Appellant was 23 years of age and was working as a agricultural labour in the house of PW5. According to him, the learned trial judge failed to consider the evidence on record and not only that due to improper appreciation of the evidence on record the accused-Appellant was convicted under Section 304, (Part-I), IPC though the evidence on record does not constitute any such offence under that section. He further contended that even if the evidence adduced by the prosecution is believed in toto then also no case under Section 304, (Part-I), IPC is made out against the accused-Appellant, at best a case under Section 304, (Part-II) is made out, as admittedly, while the accused-Appellant allegedly committed the offence of culpable homicide amounting to murder, he had no intention to cause the death of the deceased. He also contended that the accused-Appellant due to his poverty even was not in a position to prefer appeal in time engaging a lawyer and not only that in the trial court also he was defended by an amicus curiae. His further contention was that there is nothing on record in regard to the injuries found on the person of the deceased pointedly to show that the act of the accused was done with the knowledge that his act would likely to cause the death of deceased Goutam. His further contention was that there is nothing on record in regard to the injuries found on the person of the deceased pointedly to show that the act of the accused was done with the knowledge that his act would likely to cause the death of deceased Goutam. He further contended that it may be true, death was the resultant, but this resultant could not be attributed to the knowledge of the accused because of the obvious fact that the alleged injuries found on the person of the deceased were not such so as to constitute knowledge on the part of the accused and in an offence punishable under Section 304, Part-II, IPC knowledge is an important element, which is missing in the instant case and as such at best it can be said that the offence committed by the accused-Appellant is an offence of 'voluntarily causing hurt' as defined under Section 321, IPC and punishable under Section 323, IPC. Learned Counsel again submitted that the accused-Appellant is languishing in Jail since the date of his conviction and sentence, i.e., from 7.1.2004 and he has already suffered imprisonment for 7 years 1 month 10 days excluding the remission period of 1 year 8 months 19 days. He finally submitted that when a person is not in a position to engage a lawyer to defend him in a court of law from where he will pay the fine. Therefore, even if this Court considers that this is a case where the conviction is to be upheld then also it would be proper for this Court to modify the sentence passed by the learned trial court as the sentence is in higher side. In support of his aforesaid contention, Mr. Lodh referred to a decision of the Apex Court in Karim Khan v. State of Rajasthan (1971) Crl. LJ 1654. 14. Mr. Ghosh, learned Addl. Public Prosecutor while supporting the impugned judgment of conviction and sentence passed by the learned Addl. Sessions Judge would contend that the learned trial court did not commit any wrong in convicting the present Appellant under Section 304, (Part-I), IPC as it appears from the evidence of prosecution witnesses that there was a quarrel between the PW13 Shantu and the accused-Appellant for which the village pradhan (PW2) went to the house of PW5 for inquiring about the said incident of quarrel. Therefore, it cannot be said that the accused-Appellant had no intention while causing injury to the deceased Goutam with the help of bamboo stick and more so, the accused-Appellant also made a confessional statement under Section 164, Code of criminal Procedure before the learned SDJM (PW19) who also adduced his evidence before the learned trial court and confirmed the confessional statement of the accused-Appellant. However, he submitted that even if for argument sake it is admitted that there was no intention of the accused-Appellant for causing bodily injury to deceased Goutam which was likely to cause his death, it cannot be ruled out that the accused-Appellant had ho knowledge that his act was likely to cause death of Goutam. Therefore, even if he did not commit an offence under Section 304, (Part-I), obviously the accused-Appellant committed an offence under Section 304, (Part-II), IPC. 15. In Karim Khan (supra) while the Apex Court converted the conviction of the Appellant therein to Section 323, IPC from under Section 304, (Part-II) stated, inter alia that the trial court found the accused committed offence under Section 304, Part-II, IPC and not under Section 302, IPC and sentenced him to suffer imprisonment for five years and to pay a fine of Rs. 1,000, in default of payment of fine to undergo further one year's rigorous imprisonment. Aggrieved by the judgment of the trial court, Appellant Karim Khan preferred appeal before the High Court of Rajasthan. The High Court considered the deposition of the Medical Officer, namely, Dr. S.L. Agarwal, Gangapur City who stated inter alia, that Subhan Shah was an old man of 65 years of age. There was no external mark of injury on his person. The left auricle was ruptured with an opening of 1" x 1/2" irregular on it supper surface and that the cause of death of Subhan Shah was the rupture of heart, resulting in heart-failure. The heart-failure could be caused by forceful collision of the stone. In his cross-examination, he also stated that the rupture of heart could be natural, accidental or homicidal and that no clinical data was available to distinguish whether the death of the victim was natural or otherwise. The doctor also deposed that the heart is located below the skin, bones, muscles, and pericardium cavity. None of the outer fibrous and the inner serous layers were found injured. The doctor also deposed that the heart is located below the skin, bones, muscles, and pericardium cavity. None of the outer fibrous and the inner serous layers were found injured. Had the stone been hit on the chest, the abovementioned parts of the body should have been damaged. The learned Single Judge of the said High Court held "Keeping in views the opinion of Doctor Agarwal and the medical authorities cited above it is possible to conclude that the victim's rupture of the heart was not necessarily homicidal. In that context, it is difficult to impute knowledge to the accused that the death was likely to result by the stone which he is alleged to have flung. The injury alleged to have been caused by the accused was neither such as was likely to cause death, nor such as would endanger the life under ordinary conditions. There being no mark of injury, external or internal, it is difficult to conclude that the Appellant intended or knew that he was likely to endanger the life of his victim. To put the matter in alternative words, it is not made out in the case that the death of the deceased resulted from the injury. The conviction under Section 304, Part-II, IPC is, therefore, unsustainable. It is, further, clear that the case would not properly fall under any of the 8 clauses of Section 320, IPC, as no grievous injury was inflicted by the accused; vide Jani Gulab Shaikh v. State of Maharashtra, Criminal Appeal No. 13 of 1968, decided on 29.8.1969 (SC). Therefore, the accused also cannot be convicted under Section 325, IPC. He, keeping in view the prosecution evidence, can only be convicted under Section 323, IPC". Accordingly, the High Court convicted the Appellant of that case under Section 323, IPC, altering the conviction under Section 304, Part-II, IPC and sentenced him to six months' rigorous imprisonment. 16. Therefore, the accused also cannot be convicted under Section 325, IPC. He, keeping in view the prosecution evidence, can only be convicted under Section 323, IPC". Accordingly, the High Court convicted the Appellant of that case under Section 323, IPC, altering the conviction under Section 304, Part-II, IPC and sentenced him to six months' rigorous imprisonment. 16. Having heard the learned Counsel for the parties and on going through the evidence on record, particularly the evidence of P Ws 2, 12, 16, the doctor who treated the deceased Goutam at Khowai Hospital and opined that the injury on the person of Goutam appeared to be simple, he was deeply unconscious, there was convulsion, the pupils were equivocal, light reaction of the pupil was nil, cardia was present, vomiting was present, there was strong suspicion of internal haemorage from signs and symptoms and an injury over the temporal area of head might extent to frontoparial region also and PW17. Dr. Pijush Kanti Das who did the post mortem examination over the dead body of Goutam Deb and opined that on examination externally, he found the body was healthy and he found haemotoma with brusse of left frontoparital region 3" x 3" into skull deep with bleeding per ear and nose and in dissection he found all other organs of the body were healthy except the above injury, and the injury stated by him were involving mussles, vessels and brain materials and death was due to haemorrage and shock which was homicidal in nature for grievous head injury and the injury was anti-mortem, it appears that according to one doctor the nature of injury as available in the body of the deceased was simple in nature, but according to another doctor there was grievous head injury. Therefore, it cannot be said that the accused-Appellant did not cause injury on the person of deceased Goutam. Now, question is even if he inflicted the injuries and in the result of such injuries the victim died whether he had any intention to cause bodily injury as was likely to cause death of the deceased and if not whether such bodily injury were done with the knowledge that those injuries were likely to cause death of the deceased and whether the offence, if any, comes within the purview of Section 323, IPC as contended by Mr. Lodh. 17. Lodh. 17. As it appears from the evidence of PW2 that while he reached the house of PW5 and asked the accused-Appellant about the allegation made against him he expressed his anger and was talking in a loud voice and hearing the loud voice of the accused-Appellant, PW12 as well as the deceased came to the house of PW5 and till that period the accused-Appellant was not with any weapon in his hand, but all on a sudden he came out with a lathi in his hand and hit a blow on the head of the deceased due to which Goutam received injuries and fell down on the courtyard of PW5. Therefore, it can be safely said that the accused-Appellant had no intention to murder the deceased. Whatever he did that was done by him due to anger. It also appears from the medical report that the accused-Appellant assaulted the deceased with lathi on his forehead and the forehead being the vital part of the body of a person it can be easily said that the accused-Appellant had knowledge that causing such injury in the forehead of the deceased would cause his death, but he had no intention to cause death of the deceased by such lathi blow and there being the clear nexus between the death of the deceased and the injuries received by him, the plea of Mr. Lodh that the case would fall under the provisions of Section 323, IPC is not tenable. 18. As this Court already held that at the time of causing bodily injury to the deceased which caused his death, the accused-Appellant had no intention, only had the knowledge, it would be proper for this Court to set aside the order of conviction passed by the learned trial court under Section 304, (Part-I), IPC. Accordingly, the impugned order of conviction is set aside and as it is found that the accused-Appellant with full knowledge caused bodily injury to the deceased, which caused his death, he (accused-Appellant) is convicted under Section 304, (Part-II), IPC. 19. Now, let us come to the question of sentence. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. 19. Now, let us come to the question of sentence. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. While imposing sentence, court should consider the facts and given circumstances of each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances. In the instant case, the accused-Appellant is a rustic villager and at the time of alleged incident he was working as an agricultural labour and he had no intention to kill the deceased, but hit of the moment he committed the offence. It also appears from record that at the time of committing the alleged offence, the accused-Appellant was 23 years of age and he was not in a position to engage a lawyer to defend his case and not only that he has already suffered the maximum period of sentence awarded by the learned trial court. Considering all the aforesaid facts, this Court is of the considered opinion that the sentence awarded by the learned trial court to the accused-Appellant is also to be modified as this Court has already held that the accused-Appellant has committed an offence punishable under Section 304, (Part-II), IPC not Part-I. 20. Accordingly, the sentence is modified to the period the accused-Appellant has already undergone. 21. In the result the appeal is partly allowed. The Appellant be set at liberty forthwith if he is not wanted in any other case.