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2011 DIGILAW 57 (GAU)

Milo Chutia v. State of Assam

2011-01-24

B.D.AGARWAL, MADAN B.LOKUR

body2011
B.D. Agarwal, J;- 1. The appellant Milo Chutia has been convicted under section 302 of the Indian Penal Code ('IPC') vide impugned judgment and order dated 8.12.2003 passed by the learned Additional Sessions Judge, (Ad hoc) Sibsagar in Sessions Case No.15(S-C)/2002. On such conviction for the offence of murder the appellant has been sentenced to undergo imprisonment for life and also to pay fine of Rs.5,000 with default sentence of further 6(six) months rigorous imprisonment. 2. Being aggrieved with the conviction and sentence the convict has preferred this appeal. It may be mentioned here that two co-accused persons namely Shri Leburam Chutia and Sri Jatin Chutia @ Nakhet were acquitted by the trial court. 3. Heard Smt. A. Devi, learned amicus curiae, appearing for the appellant and Mr. K.A. Mazumdar, learned additional public prosecutor, Assam. Also perused the impugned judgment and the evidence on record. 4. The prosecution case is that at about midnight, intervening 14/15 January, 1995, the appellant came to the house of the deceased and after dragging him to a little distance in the back courtyard, he was assaulted with a bamboo lathi and as a result of the said assault, the deceased Prahlad Chutia died on the spot. 5. The FIR was lodged by the village headman on 15.1.1995. It was registered as Maran P.S. Case No.4 of 1994 under section 302, IPC. After investigation, charge sheet was submitted against three accused persons. However, as noted earlier co-accused persons have been acquitted by the trial court. 6. As could be gathered from the record, to establish the offence of murder the prosecution examined altogether 9 (nine) witnesses. The witnesses include the wife of the deceased (PW3), daughter, son, brother and uncle (PWs 4, 5, 6 and 8 respectively), autopsy doctor, investigating officer and two independent witnesses. 7. Basically the prosecution case rests upon the testimony of the wife of the deceased. She has deposed that on the relevant night at about 9/10 p.m., the accused persons dragged out her husband from their house and beat him with a bamboo lathi in her courtyard and as a result of, the said assault her husband died instantaneously. Thereafter, PWS informed the incident to the 'Gaonbura' who lodged the FIR. According to PWS, her husband was killed due to land dispute. Thereafter, PWS informed the incident to the 'Gaonbura' who lodged the FIR. According to PWS, her husband was killed due to land dispute. In the cross-examination, PWS has admitted that there was a fight and quarrel in between her husband and the appellant. 8. As mentioned earlier, PWs 4 and 5 are the children of the deceased. Strangely, these two important witnesses turned hostile and they did not support the prosecution story. These two witnesses have deposed that at the relevant time they were enjoying a theatrical performance in the village and after their return to home they found their father lying dead in the courtyard/gateway. Similarly, PWS who is the uncle of the deceased, turned hostile. From his testimony it appears that the accused and the victim were closely related to each other. In the cross-examination, PWS has reiterated that he cannot say who assaulted the deceased. 9. PW6 is the brother of the deceased. This witness has deposed that while he was enjoying theater someone informed him that. Prahlad was killed. This witness has further deposed that when he came home he found the appellant and co-accused Nakhet Chetia on the spot and both of them were carrying daos, in their hands. His testimony can be outrightly rejected on the ground that he has given hearsay evidence regarding complicity of the appellant in the offence. Besides this, according to PW6 the accused were carrying daos, whereas, according to the wife of the deceased, who had witnessed the offence, has deposed that her husband was assaulted with a lathi. In the cross-examination, PW6 has deposed that he found that the deceased Prahlad was laid by the side of the fire, whereas, according to the PWS her husband died instantaneously and she is totally silent about keeping the deceased by the side of fire in injured condition. Be that as it may, PWS has not stated at all that her brother Sri Dimbeswar Chutia (PW6) had arrived at the scene immediately after the incident. In this way the testimony of PW6 is not reliable. 10. PW1 is the informant. He lodged the FIR at the request of the wife of the deceased and as such PW 1 had no idea as to how the incident took place. PW2 is the VDP Secretary. He has also not spoken any relevant fact. In this way the testimony of PW6 is not reliable. 10. PW1 is the informant. He lodged the FIR at the request of the wife of the deceased and as such PW 1 had no idea as to how the incident took place. PW2 is the VDP Secretary. He has also not spoken any relevant fact. Basically PW2 was examined since he was a witness to the holding of inquest by the Investigating Officer. PW9 is the Investigating Officer. No new fact has been stated by the Investigating Officer. 11. In this way the prosecution case primarily rests upon the testimony of PW3. It is the settled principle of law that testimonies are not to be counted but it has to be weighed. In other words, conviction can be recorded on the sole testimony of an eye witness. In the case before us we find that the defence failed to impeach the credibility of PW3 and no suggestion was given to this witness. That the appellant was falsely framed in the homicidal death of her husband. It may also be mentioned here that while giving statement under section 313, Cr.PC, the appellant had taken an alibi that at the relevant time he was at home. One witness was also examined by the accused persons. According to DW1, at the relevant time he was watching theatrical performance and all the three accused persons were also enjoying the theater and none of them had come out of the theater hall in the midst of performance. However, n'either this plea was put up by the accused persons during cross-examination of the prosecution witnesses nor the accused persons stated so in their 313 statements. We have already mentioned earlier that according to the appellant Milo Chutia he was at home and not in the theater. In this way the testimony of DW1 is contrary to the alibi taken by the appellant and as such learned trial judge has rightly rejected the defence evidence. 12. Smt. Devi, learned counsel for the appellant has submitted that since the co-accused persons have been acquitted on the basis of same set of evidence the present appellant should also be acquitted. In our considered opinion, an accused cannot be straightway acquitted just on the ground that co-accused has been acquitted. 12. Smt. Devi, learned counsel for the appellant has submitted that since the co-accused persons have been acquitted on the basis of same set of evidence the present appellant should also be acquitted. In our considered opinion, an accused cannot be straightway acquitted just on the ground that co-accused has been acquitted. To put it differently, if the evidence can be segregated, one of the accused persons can be convicted despite acquitting co-accused persons. In the case before us, PW3 has implicated the appellant Milo Chutia for assaulting the deceased directly. In the cross-examination PW3 has stated that the appellant had fight with her husband. Besides this the appellant's name was mentioned in the FIR as the assailant, whereas name of the co-accused did not find place in the FIR. Hence, the evidence can be segregated and the benefit of acquittal cannot be given to the appellant. 13. Learned counsel for the appellant also argued that although the prosecution made an attempt to prove the motive for the murder, but the theory of land dispute, propounded by PW3, was not proved by any cogent and corroborative evidence. It is the settled position of law that proof of motive is not sine qua non, if the prosecution otherwise proves the offence with direct and conclusive evidence. We have also observed earlier that defence had failed to discredit the testimony of PW3 to take a view that she has falsely implicated the appellant in the offence of culpable homicide. 14. Now the question is whether death of Prahlad Chutia amounted to murder. To determine this aspect as well to ascertain whether the preconditions laid down under section 300, IPC, have been fulfilled. We have to take into consideration the nature of the weapons used in the crime, numbers and situs of the wounds and the circumstances under which the offence was committed. In the case before.us the deceased was assaulted with a blunt weapon. According to the autopsy doctor, one lacerated wound was found on the posterior aspect of the scalp, multiple bruises over her right buttock, abdominal wall, right arm, both leg and face. The number of injuries, in the present case, is suggestive of scuffle and fight in between the assailant and the victim. 15. According to the autopsy doctor, one lacerated wound was found on the posterior aspect of the scalp, multiple bruises over her right buttock, abdominal wall, right arm, both leg and face. The number of injuries, in the present case, is suggestive of scuffle and fight in between the assailant and the victim. 15. In the criminal jurisprudence, it is mandatory for the prosecution to establish all the ingredients of section 300, IPC to obtain conviction of the accused under section 302, IPC. In other words, it is also incumbent upon the prosecution to show that none of the five statutory Exceptions, incorporated in section 300, is attracted. In other words, if the evidence shows existence of any of the five Exceptions the offence of culpable homicide would be treated as culpable homicide not amounting to murder. 16. In the instant case, the sole eye witness of the incident (PW3) has repeatedly stated that there was a fight between the appellant and her husband and that was preceded with quarrel. Although motive for fight was not proved but as per the testimony of PW3 there was a land dispute and according to other witnesses the appellant and the deceased were near relatives. Besides this, according to PW5 two more persons namely Akani and Dimbeswar had sustained injuries. On this piece of evidence also it appears to us that there was free fight between the parties. After giving our anxious consideration to all aspects of the matter, we hold that the deceased was assaulted with a blunt weapon in the midst of sudden quarrel and in the hit of passion and, as such, Exception-4 to section 300, IPC is attracted. Resultantly, the culpable homicide of Prahlad Chutia does not amount to murder. Accordingly, the conviction of the appellant is Converted from section 302, IPC to section 304, IPC., 17. Section 304, IPC is in two parts. The first part provides punishment up to imprisonment for life, if the culpable homicide is committed with the intention of causing death or of causing such bodily injury as is likely cause death. 2nd part of section 304, IPC prescribes sentence up to 10 years if the act is done with the knowledge that it is likely to cause death but without any intention of inflicting fatal injury. In our considered opinion, the appellant had no intention to commit murder of deceased Prahlad Chutia. 2nd part of section 304, IPC prescribes sentence up to 10 years if the act is done with the knowledge that it is likely to cause death but without any intention of inflicting fatal injury. In our considered opinion, the appellant had no intention to commit murder of deceased Prahlad Chutia. Similarly it is difficult to draw inference that he had intention to inflict any fatal injury. Hence, the appellant is hereby convicted under section 304, Part II, IPC. 18. Considering the circumstances under which the offence was committed we are of the opinion that substantive evidence of 7 (seven) years rigorous imprisonment and fine of Rs.5,000, would meet ends of justice. 19. With the aforesaid modification in the conviction and sentence, the appeal stands dismissed. The conviction of the appellant is converted from section 302 to section 304, Part II, IPC. At the same time, the sentence is reduced to 7(seven) years rigorous imprisonment with fine of Rs.5,000. The default sentence is also reduced from 6(six) months rigorous imprisonment to l(one) month rigorous imprisonment. 20. The record reveals that the appellant is in jail since the date of the judgment, i.e., 8.12.2003. Besides this, the appellant was also in jail for more than two months during the investigation period. In this way the appellant has served out the sentence, as has been awarded. Hence, the Registry is directed to issue the release order of the appellant to the concerned jail authority immediately. 21. The fee of amicus curiae is fixed at Rs.5,000, (Rupees five thousand) for rendering her valuable services as amicus curiae. 22. Send down the LCR with a copy of this judgment to the trial court immediately.