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2011 DIGILAW 541 (GAU)

Padmeswar Gogoi v. State of Assam

2011-06-22

A.C.UPADHYAY, AMITAVA ROY

body2011
JUDGMENT and ORDER Amitava Roy, J. 1. In challenge is the judgment and order dated 29.11.2002 passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 86(DH)/2001 convicting the accused/appellant under Section 302 of the Indian Penal Code (for short, hereinafter referred to as 'the Code') and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 3000/-, in default, to undergo rigorous imprisonment for another six months. 2. We have heard Mr. P. J. Saikia, learned counsel for the accused/appellant and Mr. D. Das, learned Public Prosecutor, Assam. 3. On the records laid before this Court the prosecution case is traceable to the FIR dated 20.09.2001 lodged by one Sri Rabindra Barua with the Officer-in-Charge, Bordoloni Police Out Post alleging that at about 7.30 p.m. of the previous day i.e. 19.09.2001 the accused/appellant had assaulted his brother Mridul Barua with a "Kotari" (sharp cutting instrument like a knife) in the back courtyard of the house of Sri Guna Kanta Barua and that the injured succumbed to the injuries sustained at 11:30 p.m. on the way to Gogamukh Hospital. On the basis of the aforesaid FIR, Gogamukh P.S. Case No. 154/2001 was registered under Section 302 IPC and the investigation followed. The FIR (Exhibit-1) discloses further that the investigation in the case had in fact been taken up on the basis of BDL O.P. GDE No. 274 dated 20.09.2001 which had been forwarded to the Officer-in-Charge of Gogamukh Police Station. 4. On the completion of the investigation chargesheet was submitted against the accused/appellant under Section 302 IPC and he was made to stand trial as he denied the charge framed also on the basis of the said provision of the Code. In course of the trial the prosecution examined as many as sixteen witnesses including the investigating officer and the doctor who had performed the post mortem examination on the deceased. On the closure of the evidence of the prosecution the accused/appellant was examined under Section 313 CrPC wherein he maintained the stand of his innocence. He, however, did not adduce any evidence in defence. The learned Trial Court on a consideration of the evidence on record convicted and sentenced him as above. 5. Before adverting to the rival submissions, it would be appropriate to make a brief survey of the evidence adduced by the prosecution in support of the charge. He, however, did not adduce any evidence in defence. The learned Trial Court on a consideration of the evidence on record convicted and sentenced him as above. 5. Before adverting to the rival submissions, it would be appropriate to make a brief survey of the evidence adduced by the prosecution in support of the charge. PW 1, Rabindra Baruah, the informant, stated on oath that on 19.09.2001 at about 8.30 p.m. his cousin brother Bipin Baruah informed him over telephone that the accused/appellant had seriously injured his brother Mridul Baruah (deceased) by assaulting him with a 'Kotari' in the courtyard of Guna Baruah, their uncle. On receipt of the said information, according to this witness, he started for the place of occurrence and met the injured who was then in the process of being taken to the hospital in a car. The witness stated that the injured was first taken to the Bordoloni Government Hospital, whereafter, on medical advice and for better treatment he was decided to be shifted to the Gogamukh Hospital. According to this witness, Dr. Pranab Hazarika who attended on the injured at Bordoloni Government Hospital recorded the dying declaration made by the injured in course of which he disclosed that he had been assaulted by Padmeswar 'Kerani'. The injured also asked for water. The witness stated that the injured, however, succumbed to his injuries at about 11.30 p.m. on his way to the hospital. He proved the FIR (Exhibit-1) claiming it to be filed by him at Bordoloni Police Out Post. He also proved the inquest report (Exhibit-2) and the seizure of the wearing apparels of the deceased vide Exhibit-3. The witness identified the vest of the deceased to be Mat. Exhibit-1 and the Gamosa (Mat. Exhibit-2). He further stated that the accused/appellant had handed over a 'Kotari' to the police producing it from his house. He proved the seizure thereof vide Exhibit-4 and also identified the weapon as Mat. Exhibit-3. In cross-examination, this witness asserted to be present when the dying declaration of the deceased was recorded by the doctor at the Bordoloni Government Hospital. In particular, he stated that at that time the deceased was in a position to talk. He, however, admitted to have omitted to mention about the recording of the dying declaration before the police as well as in the FIR. 6. In particular, he stated that at that time the deceased was in a position to talk. He, however, admitted to have omitted to mention about the recording of the dying declaration before the police as well as in the FIR. 6. PW2, Smt. Kiran Baruah identified the accused/appellant on the dock and deposed that on 19.09.2001 at about 7:30 p.m. while she was in the kitchen of her house she heard a sound coming from outside. As she came out to ascertain the source of the sound with a lamp in her hand she found Mridul (deceased) and Padmeswar (accused/appellant) 'fighting' in the back courtyard. According to this witness, she then called Akon Konwar (PW 3) also to witness the happenings. She further stated to have seen the accused/appellant inflicting cut injuries on the deceased with a knife stating that though he intended to finish him the assault would be enough. This witness stated that on being so assaulted the deceased implored for water and subsequent thereto fell down on the ground. The witness stated on oath when asked, the deceased disclosed that the accused/appellant had assaulted him. This witness stated to have seen injuries on the right hand and chest of the deceased. In cross-examination, this witness divulged that their family was ostracized by the society as the incident had happened in their campus. She claimed to have identified two persons in the back courtyard in the light of the lamp that she was carrying. She affirmed in her cross-examination as well to have seen the deceased and the accused/appellant assaulting each other with fists and blows and that in course thereof the latter had whipped out a knife and assaulted the former. She denied the suggestion made by the defence that during the incident the deceased had sought for a 'dao' and that it was provided by her to him. She also denied the suggestion that she and the deceased had in fact assaulted the accused/appellant with a 'dao' and a 'Kotari'. 7. PW 3, Smt. Akon Konwar deposed that on the date of the occurrence i.e. 19.09.2001 at about 7.30 p.m. she was in the house of her sister Kiron Baruah (PW 2). She stated to have heard a noise outside following which her sister came out with a lamp to find out the reason of the sound. 7. PW 3, Smt. Akon Konwar deposed that on the date of the occurrence i.e. 19.09.2001 at about 7.30 p.m. she was in the house of her sister Kiron Baruah (PW 2). She stated to have heard a noise outside following which her sister came out with a lamp to find out the reason of the sound. According to this witness, Kiron re-entered the room and proceeded towards the well. This witness stated that she did not see anything outside. This witness was declared hostile by the prosecution and was confronted with the statements made by her before the police under Section161 CrPC narrating the incident that had happened. She, however, owned her statement made before the Magistrate to be Exhibit-5 with the signature thereon. In her cross-examination, she, however, mentioned about the presence of two persons fighting in the back courtyard of the house but stated that she could not see them. 8. As the evidence of PWs 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 is not of any decisive bearing on the issues in the present appeal, it is not considered essential to elaborate on their statements made at the trial. 9. PW 14, Dr. Dilip Kr. Gogoi who had performed autopsy on the dead body stated to have detected the following injuries thereon:- 1. A fresh sharp cut injury on the right side of the chest starting from intraclavicular lateral margin of clavicle extending down and medially towards yiphisternum 8.5 inches long and 1.5 inches wide with tailing of the wound over yipisternum with exposure of the peetoralis major muscle with upper side. 2. A fresh deep cut injury on medical aspect of right arm 2" above elbow joint 3.5 inches long 2 inches wide with severing of brachial artery, nerve and biceps brashi-muscle. 3. A laceration mark on right arm, deltoid area 3" (inches) long down and oblique and anteriorly. This witness opined that the death had occurred due to haemorrhage following sharp cut injuries specially described in injury No. 2. He proved the post mortem report as Exhibit-7. 10. PW 15, Dr. Pronab Hazarika stated on oath that on 19.09.2001 he was attached to Bordoloni PHC as Medical & Health Officer-I and that at about midnight he had examined Mridul Barua who had been brought to the hospital in a car. He proved the post mortem report as Exhibit-7. 10. PW 15, Dr. Pronab Hazarika stated on oath that on 19.09.2001 he was attached to Bordoloni PHC as Medical & Health Officer-I and that at about midnight he had examined Mridul Barua who had been brought to the hospital in a car. He testified to have detected two cut injuries on the body i.e. (i) over the right side of the chest, and (ii) over the anterior aspect of right arm. This witness stated that the injured was found to be severely anaemic and seeing that his condition was serious and that as necessary treatment to him was not possible due to lack of facilities in the PHC, he advised him to be shifted to the Gogamukh Hospital for better management and treatment. This witness, however, stated that during the examination of the injured the latter had spoken to him as hereunder:- Give me water, give me water, my mouth is getting dry, give me water...Sir, I got cut, Padmeswar Kerani has cut me, my stomach is aching. This witness proved his medical report (Exhibit-8) with the above findings and recordings. 11. PW 16, Hemanta Bora, the Investigating Officer, narrated the steps taken by him in course of the investigation. It would be clear therefrom that he had initiated the investigation on the basis of a verbal information lodged with the Bordoloni Police Out Post on 19.09.2001 by one Bipin Baruah and that by the time the FIR was lodged he had visited the place of occurrence, conducted inquest on the dead body, dispatched the same for post mortem examination and recorded the statements of the witnesses. The Investigating Officer further stated to have seized a 'Nalia-Katari' produced by the accused/appellant in course of his investigation which he seized vide Exhibit-4. He stated to have prepared a note of the statement made by the accused/appellant that he had cut the deceased with the said weapon of assault. This witness also claimed to have recorded the statement of the accused/appellant in details with regard thereto and proved the note prepared by him and the statement of the accused/appellant as Exhibit-10 and 11 respectively. This witness identified the weapon of assault to be Mat. Exhibit-3. The seizure of the wearing apparels of the deceased was also proved. He, however, admitted that though there was a mention about the GD. This witness identified the weapon of assault to be Mat. Exhibit-3. The seizure of the wearing apparels of the deceased was also proved. He, however, admitted that though there was a mention about the GD. Entry in the Case Diary, he had not proved the same. 12. Mr. Saikia in the backdrop of the above evidence has assertively urged that the testimony of PWs 1, 2 and 3 are contradictory on material particulars and that the prosecution having failed to prove the charge against the accused/appellant, he is entitled to be acquitted. As the prosecution has failed to provide any acceptable explanation for the omission to mention about the dying declaration in the FIR as well as in the statement of the so-called eye witness in course of the investigation, the deposition to that effect made by PW 15 is of no probative value, he urged. The learned counsel also sought to discredit PW 2 and 3 on the basis of their statements made under Section 164 CrPC contending that the two versions are incompatible. Mr. Saikia has sought to impress upon us that the eye witnesses of the prosecution having failed to identify the accused/appellant to be the assailant, his conviction is wholly untenable in law. According to him, the purported extra judicial confession made before the police is inadmissible in law. Further, Exhibit-10 and 11 not only are bereft of any probative value, the same per se do not establish Mat. Exhibit-3 to be the weapon of assault. In absence of any nexus between the incident, the accused/appellant and the 'Nalia-katari' seized by the police, the impugned judgment and order is patently illegal and liable to be interfered with, he maintained. Without prejudice to the above, Mr. Saikia has urged that even assuming that the involvement of the accused/appellant has been proved by the evidence on record, having regard to the injuries sustained by the deceased, no intention of murder can be attributed to him and that, therefore, as meanwhile eight years have is elapsed, he entitled to be set free. 13. Mr. Das, in reply, has urged that a conjoint reading of the testimony of PWs1, 2 and 3 proves the charge levelled against the accused/appellant and, therefore, no interference of this Court in the instant appeal is warranted. 13. Mr. Das, in reply, has urged that a conjoint reading of the testimony of PWs1, 2 and 3 proves the charge levelled against the accused/appellant and, therefore, no interference of this Court in the instant appeal is warranted. The dying declaration of the deceased as disclosed by PWs1, 2 and 15 being wholly reliable, the conviction of the accused/appellant is justified in law, he urged. According to Mr. Das, the identity of the accused/appellant to be the assailant has been well established and that, therefore, the impugned judgment and order ought not to be interfered with. 14. We have lent our anxious consideration to the rival submissions advanced and the materials available. To start with, the FIR specifically mentions the name of the accused/appellant to be the assailant. The evidence of PW1 appears to be relevant to the extent of the dying declaration said to have been made by the deceased to him disclosing that the accused/appellant was the assailant. The testimony of PW 2, Kiron Barua when read as a whole demonstrates the involvement of the accused/appellant in the acts of assault on the deceased in clear terms. According to this witness, she on the date and the time of the occurrence had seen the deceased and the accused/appellant fighting with each other in her back courtyard in course of which the accused/appellant has assaulted the deceased with a knife following which he fell down on the ground. She also is a witness to the dying declaration that was made by the deceased to her implicating the accused/appellant to be his assailant. This witness specifically stated about the two injuries suffered by the deceased which stand corroborated by the post mortem report. There is apparently no reason to disbelieve this witness as not only she reiterated a number of times with regard to the identity of the persons in the back courtyard which she could make out on the light of the lamp that she was carrying, she also consistently identified the accused/appellant to be the assailant of the deceased. The evidence of PW 3 taken as a whole though not fully in alignment with the testimony of PW 2, it is apparent therefrom that on the date and at the same time of the incident two persons were present in the back courtyard of PW 2 fighting with each other. The evidence of PW 3 taken as a whole though not fully in alignment with the testimony of PW 2, it is apparent therefrom that on the date and at the same time of the incident two persons were present in the back courtyard of PW 2 fighting with each other. To that extent the presence of the accused/appellant as narrated by PW 2 and his complicity as the assailant of the deceased stands corroborated. 15. Though the learned counsel for the appellant has been strongly critical about the acceptability of the evidence of PW 15 vis-a-vis the dying declaration said to have been recorded by him, in absence of any overwhelming infirmity making the same wholly unreliable or inadmissible in law, we find no reason to discard the same in toto. We are not inclined, however, to take note of the extra judicial confessions referred to by the witnesses as those were made in presence of the police. However, the fact that a 'Nalia-Katari' had been seized by the Investigating Officer on being produced by the accused/appellant has its own relevance. In the above view of the matter, on a conjoint consideration of the evidence on record, we are of the unhesitant opinion that the prosecution has been able to prove the complicity of the accused/appellant in the offence with which he has been charged. 16. This takes us to the plea taken on his behalf about the lack of intention in committing the murder. The post mortem report discloses that the deceased had suffered a sharp cut injury on the right side of the chest measuring 8.5 inches long and 1.5 inches wide as well as a deep cut injury on the right arm 2 inches above elbow joint 3.5 inches long and 2 inches wide severing the brachial artery, nerve, biceps and brachi-muscle. The eye witnesses of the prosecution noticeably have testified about an on-going quarrel and a fight between the accused/appellant and the deceased before the former had taken out a knife to inflict cut injuries on the latter. The evidence of PW 2, in particular, is to the effect that when she came out tracking the noise emerging from the back courtyard of her house she had seen the accused/appellant and the deceased assaulting each other with fists and blows. The evidence of PW 2, in particular, is to the effect that when she came out tracking the noise emerging from the back courtyard of her house she had seen the accused/appellant and the deceased assaulting each other with fists and blows. It is, thus, not unlikely, in our comprehension, that in the heat of the moment and being deprived of the power of self-control, the accused/appellant had assaulted the deceased with a knife which had been in his possession. Going by the injuries inflicted by the accused/appellant, we are constrained to hold that having regard to the weapon of assault then in his possession and the enraged state of mind, he could not be said to have been seized with the intention of eliminating the deceased by his assaults. The injury on the chest, as the post mortem report discloses, is not the direct and immediate cause of death. In fact, the post mortem report reveals that the death had occurred due to haemorrhage following sharp cut injuries specially injury No. 2 which apparently was on the right arm of the accused/appellant. In the above premise, having regard to the factual background and the sequence of events leading to the incident, we are of the opinion that the accused/appellant cannot be held guilty of the offence of murder under Section 302 of the Code. 17. We, thus, conclude that in the facts and circumstances of the case, the accused/appellant is guilty of the offence of culpable homicide not amounting to murder. As he lacked the intention of causing death of the deceased though he had the knowledge that the injuries caused by him were likely to cause death, we are of the view that his conviction under Section 304, Part-II of the Code would suffice. Having regard to the facts impelling us to scale down the conviction of the accused/appellant from Section 302 to 304, Part-II of the Code, in our opinion, it would meet the ends of justice if the sentence therefor is restricted to the period already undergone by the accused/appellant. Ordered accordingly. 18. The appeal is, thus, partly allowed. The accused/appellant, as a consequence, would be released forthwith. Appeal allowed