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2011 DIGILAW 1323 (BOM)

Subhash Samal v. State of Goa

2011-10-19

A.P.LAVANDE, R.P.SONDURBALDOTA

body2011
Judgment : R. P. SONDURBALDOTA, J. 1. The appellant herein challenges his conviction under Section 302 I.P.C. by the Judgment and Order dated 22nd September, 2006 passed by the Sessions Judge, Panaji in Sessions Case No.18 of 2004. The impugned Judgment and Order sentences him to suffer life imprisonment and pay fine of Rs.5000/-. 2. Briefly stated the prosecution case is that deceased Anthony was the second husband of Shradha, original accused no.1 since discharged. Both used to reside together along with PW5 and PW6, the sons of Shradha from her first marriage. The appellant Subhash was an acquaintance of Anthony who, some times, used to stay with the family by paying charges. Anthony was a drunkard and had a violent temper. He used to abuse and assault Shradha and the children. He also used to damage the articles in the house. On the date of the incident i.e. 24th December, 2003, Anthony, Shradha, the children and Subhash went for picnic to Candolim beach. Anthony had been taking drinks even before everybody started for the beach. At the beach also he consumed drinks and fell asleep. Shradha along with PW5 and PW6 left Anthony and Subhash for going to another beach. As the three reached the road, PW5 returned to the place where Anthony was sleeping because he had forgotten his slippers there. He saw that Subhash was trying to wake up Anthony. Anthony got angry because of that and slapped Subhash who then removed a knife and cut the throat of Anthony. Thereafter, Anthony ran away. PW5 called Shradha and PW6 to the spot but thereafter all the three ran away from the place thinking that they would be blamed for the murder. Then everybody including Subhash went by a Maruti car to Panaji. From there, Shradha went to her house and Subhash went to the house of her brother at Ponda. PW21 found the body of Anthony on the beach and informed his employers PW15 and PW16, who in turn informed the police. The police then moved into action and took the usual steps in investigation. On the next day i.e. on 25th December, 2003, Shradha was arrested from her residence. On the very day, the appellant came to be arrested from the house of the brother of Shradha. The police then moved into action and took the usual steps in investigation. On the next day i.e. on 25th December, 2003, Shradha was arrested from her residence. On the very day, the appellant came to be arrested from the house of the brother of Shradha. After drawing arrest panchanama, the blood stained clothes on the person of the appellant were attached along with other articles. He was sent for medical examination. On 29th December, 2003 while he was in custody, the appellant made a statement that he would show the place where the weapon of offence i.e. the knife was left by him. The knife was discovered partly buried in the sand at Candolim beach. On completing the discovery panchanama, the police attached the blood stained knife (Exh.M). The test identification parade in respect of the appellant, was held by PW9 on 23rd February, 2004 in which PW16 and PW17 identified the appellant. On 8th January, 2004 statement of PW5 under Section 164 Cr.P.C. was recorded by PW13, the Judicial Magistrate First Class. On completion of investigation the police filed charge-sheet against the appellant. He pleaded not guilty to the charge. His defence as disclosed in the cross-examination of the witnesses and his statement under Section 313 Cr.P.C. is of total denial. He has denied his presence at the place of the incident. He has also denied that he was arrested from the residence of the brother of Shradha, with blood stained clothes on his person. 3. The prosecution has examined 23 witnesses to establish the offence against the appellant, out of which 7 are formal witnesses and 3 police witnesses. The Sessions Court on appreciation of the evidence rejected the evidence of discovery of the knife at the instance of the appellant but accepted the direct evidence of PW5 supported by PW6 and the other witnesses on different aspects of investigation to arrive at the conclusion of guilt of the appellant for the offence punishable under Section 302 IPC. 4. There is no controversy as regards the homicidal death of Anthony which is even otherwise established by the evidence on record. The injuries inflicted on Anthony described by PW7 are as follows: Injury no.1:- There is a 13 cms. x 6 cms. 4. There is no controversy as regards the homicidal death of Anthony which is even otherwise established by the evidence on record. The injuries inflicted on Anthony described by PW7 are as follows: Injury no.1:- There is a 13 cms. x 6 cms. x neck muscle tissue deep, homicidal cut throat wound present over middle front of neck, horizontally placed at the upper border of the thyroid cartillage, extending from left to right side with both upper and lower margins clean cut with a left side angle acutely cut and with a superficial extension of 6 cms. x 4 mm over the skin on the right side of the neck, the end is placed 4 cms. below the right mastoid prominence. It has cut the sub cutaneous tissues of the neck, the platysma muscle, the left side sternocleidomastoid muscle, other muscles and vessels of the neck including the left carotid artery through and through with the retraction of the vessels above and below. It has made a cut of 3 mm x 1 mm on the thyroid cartilage of the upper border on the left side with a complete transaction of the left superior cornu of the thyroid cartilage. It has also cut the muscles on the right side of the neck i.e. the stenocleido muscle partially with sparing of the right carotid artery. It has also made a cut of 2 cms x 3 mm x 2 mm on the left side upto the midline in front of the fourth cervical vertebra body with cut to the anterior logitudinal cervical ligaments. Causitiveweapon sharp cutting weapon ante mortem. Injury no.2:- Superficial, curved incised wound, reddish fresh 4 cms. x 5 mm with concavity directed to the right is situated on the under chin in the midline and is placed 4 cms. below backward from the chin. Causitive weapon sharp cutting weapon ante morterm. Injury no.3:- Superficial, curved incised wound, reddish fresh 3 cms. x 3 mm with concavity directed to the right, is situated on the under chin in the midline and is placed 4.8 cms. below backward from the chin. Causitive weapon sharp cutting weapon, ante mortem. PW7 opined that the cause of death of Anthony was due to hemorrhagic shock as a result of homicidal cutthroat injury to the neck. Injury no.1 according to him was necessarily fatal. 5. Ms. below backward from the chin. Causitive weapon sharp cutting weapon, ante mortem. PW7 opined that the cause of death of Anthony was due to hemorrhagic shock as a result of homicidal cutthroat injury to the neck. Injury no.1 according to him was necessarily fatal. 5. Ms. C. Collasso, learned Counsel for the appellant attacks the impugned Judgment and Order submitting that there have been several lapses on the part of the trial Court in conducting the trial as well as appreciation of the evidence of the witnesses. She points out that the evidence of identification of knife by PW5 and the existence of blood stains thereon was not put to the appellant during his statement under Section 313 Cr.P.C. She submits that there is substantial gap between the statement of PW5 under Section 161 Cr.P.C. and his statement under Section 164 Cr.P.C. The statement of PW5 under Section 16 was recorded on 28th December, 2003 and his statement under Section 164 Cr.P.C. on 8th January, 2004. According to her since PW5 had turned hostile, the learned Sessions Judge ought to have been extremely slow in relying upon his evidence. Ms. Collasso submits that the age of PW5 recorded as 13 years at the time of deposition cannot be correct. It is undisputed position that PW5 is younger than PW6 and the age of PW6 given at the time of deposition is 12 years. Therefore, PW5 could not have been of 13 years. 6. Perusal of the record shows that oath had been administered to PW5 by the learned Sessions Judge at the time of recording his deposition. Ms. Collasso submits that since the age of PW5 at the relevant time was below 12 years he could not have been administered oath in view of Section 4 of the Indian Oaths Act without ascertaining whether he understood the nature of an oath or affirmation. The Court had also not taken precaution of putting preliminary questions to ascertain whether the child is in a position to distinguish between truth and falsehood before proceeding to record his deposition. Since the correct procedure was not followed by the Sessions Court, Ms. Collasso argues that, the evidence of this witness is required to be discarded. In that situation the remaining circumstantial evidence will not be sufficient to connect Subhash to the murder of Anthony. Therefore he deserves to be acquitted of the offence. Since the correct procedure was not followed by the Sessions Court, Ms. Collasso argues that, the evidence of this witness is required to be discarded. In that situation the remaining circumstantial evidence will not be sufficient to connect Subhash to the murder of Anthony. Therefore he deserves to be acquitted of the offence. Lastly, in the alternative, Ms. Collasso submits that the case is covered by Exception 4 to Section 300 and this Court should hold that it is culpable homicide not amounting to murder and the conviction of Subhash be altered to Section 304 Part II I.P.C. and he be sentenced accordingly. 7. Undoubtedly, there have been few lapses on the part of the Sessions Court while conducting the trial. One of them being the evidence of identification of knife with the blood stains thereon by PW5 not being put to Subhash during the course of his statement under Section 313 Cr.P.C. thereby denying him an opportunity to explain the evidence against him. In our opinion, however, these lapses would have been fatal to the prosecution had the trial rested on circumstantial evidence alone. In the instant case, there is direct evidence of PW5 who had seen Subhash inflicting the injury upon Anthony. Though, Subhash denied in his statement under Section 313 Cr.P.C. that he had accompanied Anthony, Shradha and the children to the beach for picnic, the evidence of PW5, PW6, PW15 and PW16 establishes the fact. Both PW5 and PW6 stated that they along with their mother, step-father Anthony and Subhash had gone for picnic to the beach on the date of the incident. PW15 deposed that he had seen Subhash at the beach along with others. PW16 stated that Subhash was one of the men sitting along with the lady and the two children on the pathway on the date of incident at the beach. Both PW15 and PW16 have identified Subhash in the identification parade conducted by PW9 and also in the Court. Thus, the evidence produced by the prosecution establishes beyond reasonable doubt the presence of Subhash along with the deceased and others at the relevant time at the place of the incident. Thus, material evidence of PW5 is seen to be supported by the other evidence on record. Thus, the evidence produced by the prosecution establishes beyond reasonable doubt the presence of Subhash along with the deceased and others at the relevant time at the place of the incident. Thus, material evidence of PW5 is seen to be supported by the other evidence on record. The other denial of Subhash is of his arrest from the residence of the brother of Shradha and attachment of blood stained clothes on his person. These facts are established by the evidence of PW22, the officer causing arrest and PW4, the pancha for the arrest panchanama. Note of these facts must be taken while appreciating the evidence of PW5. 8. The statement of PW5 recorded during the course of investigation is dated 20th December, 2003. Thereafter on 8th January, 2004 his statement under Section 164 Cr.P.C. was recorded by PW13, the learned J.M.F.C. PW13 deposed that PW5 being a minor before recording his statement she had put some questions to him to ascertain whether he could understand the questions and give rational answers. After ascertaining this fact she had recorded the statement of PW5. At the time of recording the statement she had taken the precaution of asking the police to leave the Court hall and she had verified from PW5 that he was not making a statement under duress or force or under police pressure. PW5 when examined in the Court had initially not supported the prosecution. Therefore, with the permission of the Court the prosecution had cross-examined him. During cross-examination PW5 was confronted with his statement under Section 164 Cr.P.C. recorded by PW13. He admitted that his statement was recorded by PW13 and the contents thereof. He also deposed that the statement given by him before PW13 was correct. In the cross-examination, he stated that while at the beach, he, PW6 and Shradha had left for another beach and Anthony and Subhash had stayed back. He had to return to the place where both were sitting since he had forgotten his slippers there. When he reached the spot he saw that Subhash was trying to wake up Anthony. This had upset Anthony and Anthony had abused him and also slapped him. Then Subhash took out a knife and slit the throat of Anthony. He had to return to the place where both were sitting since he had forgotten his slippers there. When he reached the spot he saw that Subhash was trying to wake up Anthony. This had upset Anthony and Anthony had abused him and also slapped him. Then Subhash took out a knife and slit the throat of Anthony. Though, the learned Sessions Judge was not careful while recording the evidence of PW5 in ascertaining his age and putting the preliminary questions to him to ascertain that he was capable of deposing in a Court of Law, the evidence of PW13 shows that he was so capable. While recording his statement under Section 164 Cr.P.C. PW13 is seen to have taken all the necessary precautions and then recorded his statement. PW5 in his cross-examination by the prosecution has accepted not only recording of his statement by PW13 but also the correctness of the contents of the statement. He has stuck to his evidence despite being subjected to extensive cross-examination on behalf of the appellant. Therefore, we are not inclined to accept the argument that evidence of PW5 is required to be discarded for any reason. We find that the learned Judge was correct in holding, based on the evidence of PW5 and the other evidence, that Subhash was the author of injury no.1 inflicted upon Anthony which led to his murder. 9. This brings us to the question whether the culpable homicide of Anthony by Subhash amounts to murder or not. Undoubtedly, the injury which proved to be fatal caused by Subhash to Anthony was on the vital part of the body i.e. the neck. It was sufficiently deep to cause instant death. Subhash must therefore be imputed with the knowledge that an injury inflicted by him with the knife on the neck of Anthony would be so imminently dangerous that it would in all probability cause death. The record shows that Anthony was a drunkard and had a violent temper. He used to consume alcohol and beat Shradha and the children. He used to beat PW5 and PW6 for no reason. He also used to break all the things in the house. PW5 and PW6 stated that even before all had left the house for going to the beach Anthony had consumed alcohol and he continued to drink at the beach. His walk was unbalanced. He used to beat PW5 and PW6 for no reason. He also used to break all the things in the house. PW5 and PW6 stated that even before all had left the house for going to the beach Anthony had consumed alcohol and he continued to drink at the beach. His walk was unbalanced. PW5 deposed that he in fact did not want to go for the picnic because Anthony had already consumed lot of alcohol but he was scared that Anthony would beat him if he refused to go to the beach. PW6 stated that at the beach Anthony was abusing him and others. Therefore he, PW5 and Shradha had walked towards another beach. The evidence of PW5 shows that when Subhash had tried to wake up Anthony he had abused Subhash and also slapped him. Subhash had only thereafter attacked Anthony. This shows that there was no premeditation in killing Anthony. The injury inflicted by Subhash was in a heat of passion by way of a re-action to Anthony who was already drunk and making a nuisance of himself to the family. There is nothing to show that Subhash had taken undue advantage or acted in an unusual manner. Therefore, in our opinion, the fourth exception to section 300 I.P.C. would be attracted to the case and it must be held that death of Anthony caused by Subhash was not murder but culpable homicide not amounting to murder. Therefore, the conviction of Subhash under Section 302 I.P.C. cannot be sustained and he can be convicted only under Section 304 Part II I.P.C. His conviction is accordingly altered to under Section 304 Part II I.P.C. 10. Next is the question of sentence to be awarded to Subhash. It is seen that the appellant has been in custody since the time of his arrest and has so far undergone imprisonment of more than 7 years and 10 months. In our opinion, in the circumstances of the case the sentence of imprisonment already undergone by him would be the appropriate punishment. Therefore the sentence is also altered to rigorous imprisonment for the period already undergone by him and the fine already awarded. He has already paid the fine. The appeal is accordingly partly allowed. The appellant be released from prison unless required in any other case.