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2011 DIGILAW 295 (GAU)

Chandra Manik Debbarma v. State of Tripura

2011-04-02

C.R.SARMA

body2011
JUDGMENT C.R. Sarma, J. 1. Heard Mr. R. C. Debnath, learned Counsel appearing for the Appellant and Mr. P. Bhattacharjee, learned Addl. PP appearing for the State. 2. This appeal is directed against the judgment and order dated 10-2-04, passed by the learned Sessions Judge, South Tripura, Udaipur in Sessions trial No. 02(ST/U) 2004, thereby convicting the Appellant under Section 304 Part-I of the Indian Penal Code (herein after called the IPC) and sentencing him to undergo rigorous imprisonment for ten years and pay fine of Rs. 2,000/- in default, to suffer another period of one month. 3. The prosecution case, in brief, as may be necessary for deciding this appeal, is stated herein below:- On the night of 07-08-03, the Appellant and his wife i.e. the deceased along with their son, namely, Sri Dasarath Debbarma, PW 6 were sleeping in their hut and at midnight, Sri Dasarath Debbarma, hearing quarrel between his parents woke up and found that the Appellant had hacked his mother (hereinafter called, the deceased) on her throat by inflicting dao blows. Seeing the said incident, PW 6 rushed to his maternal grand father's house and informed him about the occurrence. On being so informed, the said grand father (PW 1) along with others rushed to the place of occurrence and found the deceased lying dead with injuries on her person. According to the informant, i.e. PW 1, on their arrival in the place of occurrence, the Appellant fled the place by leaving the dao under a tulsi plant, in the premises of his house. As it was a rainy night, police was informed in the next morning, over telephone, by Sri Hiranmoy Tripura (PW 2). The accused-Appellant also surrendered before police on the next morning at about 5.10 am and he was arrested. On receipt of the telephonic information, police arrived at the place of occurrence and on their arrival, PW 1 i.e. the father of the deceased lodged a written FIR (Exbt. No. 1). During the investigation, police prepared inquest report in respect of dead body of the deceased, forwarded the dead body for post mortem examination, seized the offending weapon i.e. the dao and examined the witnesses. No. 1). During the investigation, police prepared inquest report in respect of dead body of the deceased, forwarded the dead body for post mortem examination, seized the offending weapon i.e. the dao and examined the witnesses. The Medical officer (PW 9) also performed the post mortem examination opined that death was due to shock and hemorrhage, following the cut injury, inflicted on the throat and that the said injury was ante mortem and homicidal in nature, caused by sharp weapon. At the close of the investigation, police submitted charge sheet under Section 302 IPC and forwarded the accused to the court to stand trial. 4. The offence under Section 302 IPC, being exclusively triable by the court of Sessions, the learned Sessions Judge framed charge under Section 302 and explained the same to the accused person to which he pleaded not guilty. 5. In order to prove its case, the prosecution examined as many as ten witnesses, including the Medical officer (PW 9) who performed the autopsy and the Investigating officer (PW 10). At the close of the evidence for the prosecution, the accused person was examined under Section 313 of the Code of Criminal Procedure. He denied the allegations, brought against him and pleaded that on the night of the incident, a group of extremists had visited his house and finding the extremists in his house, he fled the house and that on the next morning, he found that his wife was killed by the extremists. He further stated that as he went to the police station to lodge a complaint regarding killing of his wife, police arrested him. No defense evidence has been adduced to substantiate the said plea, taken by the accused-Appellant. The learned Sessions Judge considering the evidence on record came to the conclusion that the accused-Appellant committed the offence under Section 304 Part-I IPC and accordingly, convicted and sentenced him under Section 304 Part-I IPC. Aggrieved by the said conviction and sentence, the Appellant has come up with this appeal. 6. Mr. R. C. Debnath, learned Counsel appearing for the Appellant has submitted that the learned trial Judge committed error by convicting and sentencing the Appellant, without sufficient evidence on record. Aggrieved by the said conviction and sentence, the Appellant has come up with this appeal. 6. Mr. R. C. Debnath, learned Counsel appearing for the Appellant has submitted that the learned trial Judge committed error by convicting and sentencing the Appellant, without sufficient evidence on record. It is also submitted that there is sufficient contradiction in the evidence of the prosecution witnesses regarding the number of injuries sustained by the deceased and the place of recovery of the weapon alleged to be used by the Appellant. Mr. Debnath further submitted that the occurrence took place due to sudden quarrel between the husband and wife and that the Appellant had no intention to kill his wife. It is also submitted that immediately after the occurrence i.e. on the next morning, the Appellant appeared before police and that the Appellant has two daughters and one son to look after. In view of the above, it is submitted that considering the facts and circumstances under which the offence was committed and also the conduct of the Appellant, a lenient view regarding punishment may be taken. Refuting the said argument advanced by the learned Counsel appearing for the Appellant, Mr. P. Bhattacharjee, learned Addl. Public Prosecutor, appearing for the State, has submitted that there is sufficient evidence against the Appellant and that the learned trial Judge committed no error by recording the conviction and sentence as indicated above. The learned Addl. Public Prosecutor drawing the attention of this Court to the evidence of PW 6 i.e. the son of the deceased and the Appellant has submitted that the said boy clearly stated that he saw his father giving dao blow on the person of his mother and that there is nothing to disbelieve the evidence of the said witness. 7. In order to appreciate the arguments, advanced by the learned Counsel appearing for the parties and to examine the correctness of the impugned conviction and sentence, I feel it appropriate to briefly scan the evidence on record. 8. From the G.D. Entry No. 423 of R.K. Pur police station, it appears that at 6.35 am, PW 2 had informed the police telephonically regarding the murder of the deceased. The G.D. Entry No. 423 i.e. Exbt.8 which was recorded at 5-10 am also indicates that the Appellant had appeared before police and stated that he had murdered his wife. From the G.D. Entry No. 423 of R.K. Pur police station, it appears that at 6.35 am, PW 2 had informed the police telephonically regarding the murder of the deceased. The G.D. Entry No. 423 i.e. Exbt.8 which was recorded at 5-10 am also indicates that the Appellant had appeared before police and stated that he had murdered his wife. In view of the above, it appears that prior to lodging of the FIR by PW 1, police initiated action on the basis of the telephonic information, which was recorded in the G.D. book of the police station. This G.D. Entry was the first information report recorded by the police. Therefore, the Exbt.1, which has been recorded by the Investigating officer, on the basis of the statement given by PW 1 was nothing but a statement made under Section 161 of the Code of Criminal Procedure. Supporting the said statement i.e. Exbt.1, PW 1 i.e. the father of the deceased stated that the house of the Appellant was situated at a distance of 50 cubits from his house and on the fateful night at about 12 midnight, his grand son, namely, Sri Dasarath Debbarma i.e. the son of the deceased and the Appellant informed him that his father had hacked his mother. PW 1 further stated that, on being so informed, he along with others rushed to the place of occurrence and found the dead body of the deceased lying thereon. He further stated that, on their arrival, the Appellant fled the place by leaving the dao under a Tulsi plant. This witness was duly cross-examined on behalf of the defense. No material contradiction could be elicited from the said evidence. The source of information received by PW 1 was his grand son i.e. Sri Dasarath Debbarma, who deposed as PW 6. 9. PW 2 Sri Hiranmoy Tripura stated that he was informed by the brother-in-law of the Appellant that the deceased was killed by her husband. On being so informed, this witness also rushed to the place of occurrence and found incised wound on the neck and throat of the deceased. He further stated that Sri Dasarath Debbarma i.e. the son of the Appellant had informed the villagers, in his presence, that his father i.e. the Appellant had hacked his mother to death. On being so informed, this witness also rushed to the place of occurrence and found incised wound on the neck and throat of the deceased. He further stated that Sri Dasarath Debbarma i.e. the son of the Appellant had informed the villagers, in his presence, that his father i.e. the Appellant had hacked his mother to death. He further stated that on being requested by the villagers, he informed the police, telephonically, on the next morning. He was a witness to the inquest report prepared by police in respect of the dead body of the deceased. He has exhibited the inquest report as Exbt.2 and his signature thereon as Exbt.2/1. He further stated that police had seized the weapon of offence i.e. the dao from the house of the Appellant Vide Exbt.3. He exhibited the dao as Material Exbt. No. 1. Though this witness was cross-examined on behalf of the defense, no contradiction could be brought out to render his evidence disbelievable. 10. Sri Kalam Kumar Tripura, PW 3, the brother of the deceased stated that he was informed about the occurrence by his nephew Sri Dasarath Debbarma and that on being so informed, he rushed to the place of occurrence. He stated that the accused-person had fled the place by throwing the dawn under a Tulsi plant and that on the following day, the police had seized the dao by preparing seizure list in his presence. He exhibited the seizure list as Exbt.3 and his signature thereon as Exbt.3/1. No material contradiction could be elicited to demolish the evidence given by this witness. 11. Sri Bimal Tripura, one of the neighbourers of the Appellant, deposed as PW 4. He stated that hearing hue and cry, he went to the house of the Appellant and saw the dead body of the deceased. He further stated that Sri Darasath Debbarma i.e. the son of the Appellant told him that his father had killed his mother. He was also a witness to the Inquest report prepared by police and exhibited his signature, given on the Inquest report, as Exbt.2/2. 12. Sri Subhasish Sarma Roy, PW 5, a Judicial Magistrate, First Class, recorded the statement of Sri Dasarath Debbarma under Section 164 of the Code of Criminal Procedure. He was also a witness to the Inquest report prepared by police and exhibited his signature, given on the Inquest report, as Exbt.2/2. 12. Sri Subhasish Sarma Roy, PW 5, a Judicial Magistrate, First Class, recorded the statement of Sri Dasarath Debbarma under Section 164 of the Code of Criminal Procedure. He stated that before recording the statement, he ascertained, by putting certain questions, about the intelligence and capability of the deponent and came to the conclusion that he was fit to give statement. He exhibited the statement, recorded by him, as Exbt.5 and his signature thereon as Exbt.5/2. 13. Sri Dasarath Debbarma, who was the star witness in this case, has deposed as PW 6. At the time of incident, his age was about 9 years. He stated that on the fateful night, while he was sleeping in their hut with his parents, he woke up hearing quarrel between his parents and saw his father giving dao blows on the throat of his mother. He further stated that seeing the occurrence, he rushed to the house his grand father (PW 1) and informed his maternal uncle (PW 3) and his grand father (PW 1) about the incident. He further stated that his father i.e. the Appellant had fled the house by throwing the dao under a Tulsi plant and that his mother was lying inside the house in a pool of blood. He also stated that he was taken to the Judicial Magistrate and he gave his statement. He has exhibited his statement as Exbt.5 series and his signature thereon as 5/2 series. In cross-examination, this witness stated that his father gave 4/5 blows on his mother. He denied the suggestion that he did not see the occurrence and that he had falsely implicated the Appellant, on being influenced by his grand father. Though this witness was cross-examined, on behalf of the defense, no material contradiction could be elicited to demolish his evidence. From the evidence of this witness, it is found that in the said night, he was sleeping in the same hut along with his parents and saw his father giving dao blows on the neck of his mother. Though he was a child witness, the learned Magistrate (PW 5) at the time of recording his statement assessed his intelligence and capability of making statement and came to the satisfaction that he was fit to give statement. Though he was a child witness, the learned Magistrate (PW 5) at the time of recording his statement assessed his intelligence and capability of making statement and came to the satisfaction that he was fit to give statement. From the cross-examination of this witness, nothing has been elicited to show that he despite being a child witness, was not capable of making statement correctly. 14. PW 7 Sri Sudarshan Das was a photographer who had taken some photographs of the deceased. 15. PW 8 Sri Ramendra Mandal was a Police officer, who had carried the dead body of the deceased to the hospital for post mortem examination. He stated that after the post mortem examination, the dead body of the deceased was handed over to the relatives of the deceased. The defense declined to cross-examine this witness. 16. The Medical officer, who performed the autopsy, deposed as PW 9. He stated that he found a cut injury on the throat of the deceased which was oval in shape, measuring 4" X 2" with maximum diameter of 1", extending to the middle of cricoids cartilages towards right side of the neck with rupture of major vessels of the neck, resulting hemorrhage. He further stated that though he found other injuries also on the dead body, he did not specifically mention those injuries in his report. He exhibited the post mortem report as Exbt.7 and his signature thereon as Exbt.7/1. He opined that the injury on the throat was caused by sharp weapon like dao i.e. the material Exbt.1. He further opined that the injury noticed by him was sufficient to kill a person instantaneously. From the Exbt.7, it is found that the cause of death was the shock and hemorrhage following the cut injury on the throat which was ante mortem, homicidal in nature and caused by sharp weapon. From the evidence of the said Medical officer, it appears that the cut injury sustained on the throat of the deceased was the cause of her death. 17. The Investigating officer was examined as PW 10. He stated that he prepared the inquest report and submitted charge sheet after the investigation. The inquest report has been exhibited as Exbt.2. From the evidence of the said Medical officer, it appears that the cut injury sustained on the throat of the deceased was the cause of her death. 17. The Investigating officer was examined as PW 10. He stated that he prepared the inquest report and submitted charge sheet after the investigation. The inquest report has been exhibited as Exbt.2. The Exbt.2 i.e. the Inquest report reveals that the deceased sustained number of cut injuries on left cheek, over the jaw, on the throat, wind pipe, on the neck below the throat, on the left side chest and below the neck. The Medical officer (PW 9) also stated that though he found other injuries also on the dead body, he did not specifically mention all the injuries, except the injury found on the throat which was found to be the fatal injury. PW 6, the eye witness to the occurrence stated that his father i.e. the Appellant gave 4 to 5 dao blows on the person of his mother. Carefully perusing the evidence on record more particularly the evidence of PW 6 and PW 9 and the Exbt.2 i.e. the Inquest report, sufficient corroboration is found in the evidence of PW 6. P Ws 1, 2, 3 and 4, who assembled in the place of occurrence after the occurrence stated that they were informed by PW 6 that his father had hacked his mother with a dao. The seizure of a dao from the place of occurrence supports the prosecution version regarding causing the death of the deceased by means of a dao. There is nothing on record to disbelieve the evidence of PW 6. As, on the night of occurrence, PW 6 was sleeping with his parents in the same hut, he was the natural witness to the occurrence. There is nothing on record to show that PW 6 had any reason to falsely implicate his father. 18. In view of the above, considering entire aspect of the matter, I am of the considered opinion that the prosecution could successfully establish that the Appellant had caused the death of the deceased. Therefore, I am of the opinion that the learned trial Judge rightly convicted the Appellant under Section 304 Part-I IPC. The Appellant has been sentenced to undergo rigorous imprisonment for ten years. Therefore, I am of the opinion that the learned trial Judge rightly convicted the Appellant under Section 304 Part-I IPC. The Appellant has been sentenced to undergo rigorous imprisonment for ten years. It is stated that the occurrence took place due to sudden quarrel between the couple and the Appellant committed the offence in a hit of moment and immediately after the occurrence i.e. in the next morning, the Appellant surrendered before police and he is in custody since then. The learned Counsel appearing for the Appellant has also submitted that there is none, in the family, to look after the children of the Appellant and that the Appellant has suffered a lot. 19. Considering entire aspect of the matter, as well as the conduct of the Appellant, I am of the opinion that a lenient view with regard to the sentence should be taken. Therefore, I am of the opinion that this is a fit case to modify the period of sentence. Accordingly, the period of sentence imposed by the learned trial Judge is modified requiring the Appellant to undergo rigorous imprisonment for eight years instead of ten years without interfering with the sentence regarding fine. 20. With the above modification in respect of sentence, this appeal is disposed of.