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2011 DIGILAW 828 (GAU)

Ramesh Sabbar v. State of Assam

2011-09-30

MADAN B.LOKUR, P.K.MUSAHARY

body2011
JUDGMENT Musahary, J. 1. We have heard Ms. U. Das, learned counsel appearing for the appellant as amicus curiae and Mr. D. Das, learned Additional P.P. Assam appearing for the State respondent. Convicted under Section 302, IPC and sentenced to undergo S.I. for life and pay fine of Rs. 1000/- and in default of payment undergo S.I. for one month vide a judgment dated 10.6.05 rendered by the learned Ad hoc Additional Sessions Judge, No. 1, Tinsukia in Sessions Case No. 7(T) 2009, corresponding to G.R. Case No. 112/1999 this appeal has been filed by the appellant from jail. 2. The prosecution story is that on 28.3.99 at about 6 p.m. accused Ramesh Sabbar, a labourer of Longtong Tea Estate, caused grievous hurt to Sri Bishu Karmakar by inflicting axe blow on his head and back with an intention to cause his death. The appellant was apprehended by the members of the VDP and handed over to police. On the same day after the occurrence one Sri Jintu Gogoi lodged a written FIR which was registered as Lekhapani P.S. Case No. 17/99, under Section 325/307, IPC. During investigation the police visited the place of occurrence, examined witnesses, sent the injured for medical treatment, seized the axe used by the appellant in assailing Sri Bishu Karmakar and arrested the appellant and forwarded him to Court. On completion of the investigation, police laid charge sheet against the appellant under Section307/325, IPC. The case was committed to the Court of Sessions, Tinsukia for trial on 23.12.99. On receipt of the case, the learned Sessions Judge, Tinsukia made over the same to the Court of the learned Ad hoc Addl. Sessions Judge No. 1, Tinsukia for I a disposal. The learned trial Court framed charge under Section325/307, IPC and the charge being read over and explained, the appellant pleaded not guilty and claimed to stand the trial. 3. The prosecution examined 7(seven) witnesses in all including the Medical Officer and the Investigating Officer to prove its case. The defence, however, examined none. The defence plea is of total denial and false implication. In his statement under Section 313, CrPC, the appellant denied the allegation and stated that the axe was not recovered from his possession. 4. 3. The prosecution examined 7(seven) witnesses in all including the Medical Officer and the Investigating Officer to prove its case. The defence, however, examined none. The defence plea is of total denial and false implication. In his statement under Section 313, CrPC, the appellant denied the allegation and stated that the axe was not recovered from his possession. 4. It may be mentioned here that on completion of trial and on consideration the documentary as well as oral evidence and upon hearing the learned counsel for the parties, vide judgment and order dated 21.8.2001 convicted the appellant under Section 325, IPC and sentenced him to undergo R.I. for 3 years with fine of Rs. 500/- in default R.I. for one month and also convicted under Section 307, IPC and sentenced to undergo R.I. for 10 years with a fine of Rs. 1000/- and in default of fine to undergo R.I. for 2 months. Against the aforesaid conviction, the appellant preferred jail appeal before this Court being Criminal Appeal No. 359(J)/2001. This Court vide order dated 7.9.2004 held that it was a case under Section 302, IPC and not under Section 307/325, IPC and remanded the case record directing the investigating officer to re-investigate the case under Section 173(8), Cr PC and to submit report. Accordingly, the I.O. re-investigated the case and submitted charge sheet under Section 302, IPC against the appellant for trial. Thereafter, the learned trial Court framed charge under Section 302, IPC which was read over and explained to the appellant to which he pleaded not guilty and claimed to be tried. The prosecution, during retrial after remission, examined again PW 1, Sri Jintu Gogoi, Sri Suren Tanti PW 2 as PW 5, Sri Raju Karmakar PW 3 as PW 2, Sri Hokheto Serna, PW 4 as PW 4 and Smti. Gangamani Karmakar PW 5 as PW 3. Besides, the prosecution examined 2 new witnesses, namely, Sri Chandan Munda as PW 6 and Sri Anjan Thakur as PW 7. The appellant did not examine any witness in his defence. In his statement recorded under Section 313, Cr PC, the appellant denied the allegation. After conclusion of the trial and upon hearing the learned counsel for the parties, the learned Ad hoc Addl. Sessions Judge, No. 1, Tinsukia vide judgment dated 10.6.05 convicted the appellant under Section 302, IPC and sentenced him to undergo R.1. In his statement recorded under Section 313, Cr PC, the appellant denied the allegation. After conclusion of the trial and upon hearing the learned counsel for the parties, the learned Ad hoc Addl. Sessions Judge, No. 1, Tinsukia vide judgment dated 10.6.05 convicted the appellant under Section 302, IPC and sentenced him to undergo R.1. for life and to pay fine of Rs. 1000/- only and in default of payment to undergo S.I. for one month. 5. The present appeal is against the aforesaid judgment dated 10.6.05 awarding conviction under Section302 and sentenced as indicated above. 6. It may be noted that while awarding the conviction and sentence under Section 302, IPC vide impugned judgment and order, the learned trial Court took into consideration both the evidence of prosecution witnesses recorded before and after the remand. 7. In this case there is no eye witness to the actual occurrence of assault by the appellant with an axe on the deceased. The conviction has been recorded on the basis of circumstantial evidence. The circumstantial evidence is to be found, assessed and considered on the basis of evidence led by the prosecution. 8. The most important witness is Smti. Gangamani Karmakar who was examined a PW 5 and was again examined as PW 3 during retrial. She is the mother of the deceased. In her evidence as PW 5, she deposed that the house of the appellant is close to her house. The appellant is the son-in-law of her sister. On the day of occurrence at around 7 p.m. appellant called her son Bishu Karmakar to his house and her son went to the house of the appellant and just thereafter he shouted 'Ah'. Hearing the shouting she rushed to the house of the appellant and found her son lying on the ground. She saw the appellant standing near by with something in his hand. When she raised commotion, Raju and another boy came out, then the appellant chased to hit them. She then rushed to the house of Hokheto Sema, Gaonbura but before her arrival the appellant reached the house of Gaonbura before whom he said that he had killed her son. Then the Gaonbura along with Jintu Gogoi and other villagers took the injured Bishu Karmakar to hospital. At first the injured was admitted in the Margherita Civil Hospital and after two days he was shifted to AR & T.Co. Then the Gaonbura along with Jintu Gogoi and other villagers took the injured Bishu Karmakar to hospital. At first the injured was admitted in the Margherita Civil Hospital and after two days he was shifted to AR & T.Co. Hospital, Margherita and again after rendering treatment for one month he was shifted to Digboi IOC (AOD) hospital, where he succumbed to his injuries after 19 days i.e. on 29.5.99. As PW 3, during retrial, she basically stood by her earlier deposition, She stated that at around 5 O' clock in the evening the appellant called her son Bishu from her house and when Bishu went to her house a small girl named Rupa came and told her that the appellant assaulted him, she then rushed to the house of the appellant and saw him lying injured on the courtyard of the appellant. Then she went to the house of Hokheto Serna {Gaonbura} and told him about the occurrence. The defence counsel suggested to this witness that the appellant did not assault and kill her son. The said suggestion was denied by her. From this evidence it is found that the appellant, who is a neighbour and related to the aforesaid witness, Smti. Gangamani Karmakar, called Bishu and he accordingly went to the house of the appellant who is a brother-in-law in relation. The evidence of this witness shows that she was present at home when the appellant called her son Bishu and she also saw that her son immediately went to the house of the appellant. As per her evidence, the deceased {Bishu} was last seen with the appellant. The incident of causing assault took place immediately thereafter. 9. The other important witness is Hokheto Sema (Gaonbura) who was examined as PW 4 in the initial trial as well as retrial. In his evidence he stated that Smti. Ganamani Karmakar came to his house and told that Ramesh Sabbar {appellant} had assaulted her son Bishu. The injured Bishu was taken to hospital and the police seized an axe. He put his signature on the seizure list, Ext.2. His signature was marked as Ext.2{2}. He, however, said that he had not seen the axe used in committing the crime. He stated that the members of the village defence party took the appellant to the police station after the occurrence. He put his signature on the seizure list, Ext.2. His signature was marked as Ext.2{2}. He, however, said that he had not seen the axe used in committing the crime. He stated that the members of the village defence party took the appellant to the police station after the occurrence. This witness has corroborated the evidence of Smti Gangamani Karmakar so far as it relates to the fact of the visit to his house to inform him about the occurrence. 10.. Sri Suren Tanti is a Tea Garden labourer. He was examined as PW 2 during trial. He stated that at the time of occurrence, he was at home. The village Headman, Hokheto Sema called him and as asked by him he went to the police station along with the appellant. He was told by the Gaonbura that appellant had hit Bishu with an axe. The appellant himself took the axe to police station in his hand. In cross examination he further stated that he went to the police station with the Gaonbura and VDP members. PW 7, Sri Raju Karmakar is the brother of deceased Bishu Karmakar. He deposed that on the day of occurrence he was cooking meal in his house. Hearing hue and cry he came to the house of the appellant, but he was chased away by the appellant who was holding an axe. He had to flee to nearby Jungle out of fear to save his life and he came back home from the jungle on the next morning only, and he could know about the incident. He visited the hospital at Margherita to see his injured brother. He stated that on being asked, his injured brother told him that it was the appellant who caused the injury by means of an axe. In cross examination, he stated that he had not seen the appellant killing his cousin brother and at the same time he stated that the appellant and the deceased were under the influence of liquor on the day of occurrence. From his evidence it is found that the appellant was holding an axe in his hand at the relevant point of time and it has corroborated the evidence of PW S, Gangamani Karmakar and PW 2, Sri Suren Tanti. 11. There is another witness by name Raju Karmakar, 5/0. Late Chottalal Karmakar who was examined as PW 3. From his evidence it is found that the appellant was holding an axe in his hand at the relevant point of time and it has corroborated the evidence of PW S, Gangamani Karmakar and PW 2, Sri Suren Tanti. 11. There is another witness by name Raju Karmakar, 5/0. Late Chottalal Karmakar who was examined as PW 3. Bishu was his cousin brother being the son of his paternal aunt. At the time of occurrence he was at home. He deposed that the appellant called Bishu to his house. Bishu went to the house of Ramesh and when he came to know about the incident, he came to the house of the appellant but he was chased away by the appellant who was holding an axe in his hand. He too had to flee away to nearby jungle. In course of examination he stated that the distance between the house of Smti. Gangamani Karmakar and appellant would be 20/30 ft. only. The incident took place on the courtyard of appellant's house. 12. The investigating Officer, Sri Bijay Gogoi was examined as PW 8. His testimony is that on receipt of the FIR a case was registered and he himself took up the investigation. The injured Bishu Karmakar was brought before the police station and he sent him for medical examination and treatment at Margherita Civil Hospital. An axe was produced by village Headman, Hokheto Serna who reported him that the axe was used by the appellant to assault Bishu. He seized the said axe in presence of witnesses by preparing a seizure list and putting his signature thereon. He visited the place of occurrence and examined some witnesses. The place of occurrence was the courtyard in between the house of appellant and the injured. The appellant was handed over to him at police station on 29.3.99 and on the same day he was arrested. During investigation he prepared the sketch map of the place of occurrence/collected medical report and having found sufficient materials, submitted charge sheet against the appellant under Section 307/325, IPC. In course of examination he stated that he made no mention in the seizure list whether there was any blood stain on the axe. He stated that the distance between the house of the appellant and the injured is about 70 ft. In course of examination he stated that he made no mention in the seizure list whether there was any blood stain on the axe. He stated that the distance between the house of the appellant and the injured is about 70 ft. and there is no, other residence at the place of occurrence except the house of the appellant and the informant. 13. The entire alleged incident has 4 parts. First, the appellant called Bishu to his house and Bishu responding the call went to the house of the appellant. This was seen by Gangamani Karmakar (PW 5) mother of Bishu. Secondly, the appellant allegedly hit Bishu by an axe. This was not seen by anybody, even Gangamani. Thirdly, the appellant himself came to the house of village Headman with the crime weapon to inform that he hit Bishu with the axe. Fourthly, the appellant voluntarily presented himself before the police station with the axe accompanied by VDP members and village Headman (P.WA). The said appellant was arrested and the axe used in committing the crime was seized. 14. So far the holding of an axe by the appellant, meeting the village Headman at his house with the axe and his appearance before the police station with the said axe along with VD members and village Headmant cogent evidence is found in the deposition of PWs 2, 4, 5 and 7. So far the fact of appellant calling Bishu and Bishu's visit to the house of the appellant have been proved by the evidence of PWs 3 and 5. The fact of appellant's appearance before the police station along with the axe has also been proved by the evidence of PWs 2, 3, 4 and 8. 15. The aforesaid facts constitute circumstantial evidence to the actual fact of commission of assault on the deceased. Admittedly, there is no witness to the fact of assault on Bishu. In absence of eye witness the circumstantial evidence would play the determining role. This case is to be determined on the basis of circumstantial evidence. How the circumstantial evidence is to be applied and considered, Apex Court has laid down the principles in a catena of decisions and we consider it unnecessary to refer to all those cases. In absence of eye witness the circumstantial evidence would play the determining role. This case is to be determined on the basis of circumstantial evidence. How the circumstantial evidence is to be applied and considered, Apex Court has laid down the principles in a catena of decisions and we consider it unnecessary to refer to all those cases. However, we find it appropriate to refer to the case of Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681 and to reproduce hereunder: Para 12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. 16. We have in the present case, found from the evidence on record the following chain of circumstances :- (1) The appellant called Bishu to his house and responding to his call Bishu immediately went to the house of appellant. (2) At the time of such call Bishu's mother (PW 5) was at home and she personally saw her son Bishu going to appellant's house. Similarly, Bishu's cousin brother (PW 3) was also present in his house who also saw Bishu going to appellant's house in response to his call. (3) Bishu was last seen by PWs 3 and 5 with the appellant. (4) Immediately there was a cry of Bishu for help from the house of appellant. (5) Immediately on hearing the cry, PWs 3 and 5 rushed to the house of appellant and found Bishu in injured condition and appellant with an axe in his hand. PWs 3 and 5 were chased away by the appellant. 17. (4) Immediately there was a cry of Bishu for help from the house of appellant. (5) Immediately on hearing the cry, PWs 3 and 5 rushed to the house of appellant and found Bishu in injured condition and appellant with an axe in his hand. PWs 3 and 5 were chased away by the appellant. 17. From the proved fact of calling Bishu by the appellant to chasing away of PWs 3 and 5 by the appellant with an axe in hand, a chain in circumstances has been found established. The said chain of circumstance has never been found broken at any stage. Such unbroken chain of circumstances, in our considered view, unmistakably point towards the guilt of the accused, inasmuch as, there was no other person found around appellant with any arm/weapon, except him providing a chance to take a different view that the crime was committed by some other person other than the appellant. The conduct of the appellant in chasing away PWs 3 and 5 from the scene speaks volumes. Had he not been involved in assailing Bishu, he would have called others to save Bishu by way of making arrangement to shift him to hospital. His was an unusual conduct and it definitely leads to conclusion that it was he who really assaulted Bishu and there is no scope from a conclusion that within all human probabilities the crime was committed by the appellant. 18. There is no doubt that the circumstances pointed out above are incriminating and the said circumstances have been proved by the which in our considered view, are as much reliable and clinching as unimpeachable in any manner. The aforesaid chain of events as proved by sufficient evidence, would permit no conclusion other than guilt of the accused. It is apt on our part to rely on Ramreddy Rajesh Khanna Reddy v. State of A.P. reported in (2006) 10 SCC 172 , wherein it is held that to base a conviction on circumstantial evidence, prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and circumstances so proved must form such a chain of evidence as would permit no conclusion other than one of guilt of the accused. 19. 19. Having come to this conclusion we are confronted with yet another pertinent question as to whether the act of the appellant amounts to culpable homicide with or without intention of causing death attracting punishment either under Section 304, Part I or 304, Part II of the IPC. The determining factor for awarding punishment under the aforesaid provisions is the intention of the perpetrator. It is always as much difficult to read the mind of a person as to determine his intention, particularly when his action is not seen or witnessed by anybody as it happened in the case at hand. There is evidence on record that when the appellant called the deceased he was not holding an axe or any weapon and/or he called the deceased with anger. Nor was there any evidence of hot exchange of words before fatal axe blow was dealt upon him. The notable proved fact that the deceased, as per medical evidence, received a single abdominal injury caused by a blunt weapon. There is no evidence how and under what circumstances such axe blow could be given causing the fatal injury on the deceased. Nor is there any evidence that the axe blow was given without any sudden provocation on spur of the moment or at the heat of the passion. The attending circumstantial evidence does not indicate that the appellant called the deceased with intention of causing death by using a weapon. From the conduct demonstrated by the appellant, such intention of causing death is not found. We are satisfied to observe that the appellant did not show any overt action at the time of calling the deceased who is closely related to him and no motive or grudge is indicated that may play role in assaulting the deceased in a pre-planned manner. The attending facts and circumstances are not enough for coming to a conclusion that the appellant struck the axe blow on the deceased with intention of causing death or causing such bodily injury as is likely to cause death to the deceased attracting punishment under Section 304, Part I, IPC. On the attending facts and the available circumstantial evidence we are rather of the view that the appellant dealt the axe blow with knowledge that it was likely to cause death to the deceased but he had no intention to cause death to him. On the attending facts and the available circumstantial evidence we are rather of the view that the appellant dealt the axe blow with knowledge that it was likely to cause death to the deceased but he had no intention to cause death to him. We are coming to this conclusion taking into consideration that the appellant himself voluntarily came to the house of the village headman and surrendered before the police in presence of the said village headman and other co-villagers, although during the trial he denied the charge of murdering the deceased by using any weapon. His denial to the charge without adducing any evidence to disprove the prosecution evidence that it was the appellant who caused death to the deceased, would not be considered as an evidence to prove that he did not cause the death of the deceased, except that he had no premeditated intention of causing death to the deceased. This position is acceptable to us. 20. In that view of the matter, we find it reasonable to convert the impugned conviction under Section 302, IPC to one under Section 304, Part II, IPC. It is ordered accordingly. 21. Moreover at the time of hearing of sentence the appellant stated that he did not commit any offence previously and prayed for awarding him lesser punishment as there is none to look after his wife, children and old blind father. His aforesaid answer to the proposed punishment under Section 305/307, IPC has an undertone of regret for the offence committed by him. We, therefore, consider that in the aforesaid facts and circumstances of the case the interest of justice would be served if the sentence is converted to rigorous imprisonment of 10 years and fine of Rs. 1000/- in default of payment to undergo simple imprisonment for one month. 22. We have no doubt in our mind and reasoning that the prosecution has been able to prove its case by circumstantial, evidence as per the principles laid down by the Apex Court and rightly came to a conclusion that the accused is guilty of committing murder of the deceased Bishu attracting punishment under Section304, Part II, IPC Appeal, stands allowed partly as indicated above. While appreciating the legal assistance rendered by the learned amicus curiae, we would direct the State Legal Services Authority to pay him Rs. 5000/- (Five thousand) as legal fee. Return the L.C.R. forthwith.