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2012 DIGILAW 1182 (GAU)

Hiren Orang v. State of Assam

2012-10-04

ADARSH KUMAR GOEL, C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 25.04.2007, passed by the learned Addl. Sessions Judge (FTC), Biswanath Chariali, in Sessions Case No. 96/ 2006 (GR. Case No. 463/2003), whereby the learned Addl. Sessions Judge (FTC), Biswanath Chariali convicted Shri Hiren Orang (hereinafter called the "appellant"), under Section 302 of the Indian Penal Code (in short, "IPC") and sentenced him to suffer life imprisonment and pay fine of Rs. 1,000/-, in default, suffer rigorous imprisonment for 3 (three) months for his conviction under Section 302 IPC. Aggrieved by the said conviction and sentence, the convicted person, as appellant has come up with this appeal. We have heard Mr. R. K. Adhikari, learned Amicus Curiae, appearing for the appellant and Mr. Z. Kamar, learned Public Prosecutor, Assam, appearing for the State respondent. 2. Prosecution case, in brief, is that on 31.12.2005, Surya Orang (here in after called the deceased) at about 3.00 pm visited the house of Shri Hiren Orang (for short the appellant) and a quarrel had taken place between the two. Thereafter, the deceased was found lying dead with injuries on his person, in the courtyard of the appellant. A blood stained lathi (stick) was also found near the dead body. The appellant made judicial confession as well as extrajudicial confession indicating that he had caused the death of the deceased. The deceased was the uncle of the appellant On 01.01.2006, Shri Jaharu Orang (PW 1), elder brother of the deceased i.e. the father of the appellant lodged an FIR with the Officer-in-Charge of Behali Police Station. The said FIR was registered under Section 302 IPC and police launched investigation into the matter. During the course of investigation, police visited the place of occurrence, prepared inquest report, drew a sketch map, examined the witnesses, sent the dead body of the deceased for post-mortem examination and arrested the appellant. As the appellant was willing to confess his guilt the investigating officer forwarded him to the Court of the learned SDJM, Biswanath Chariali and accordingly his confessional statement was recorded by the learned Magistrate. Police also seized the weapon of assault from the place of occurrence. 3. At the close of investigation, police submitted charge sheet against the appellant under Section 302 IPC. The offence, being exclusively triable by the court of Sessions, the case was committed and the Addl. Police also seized the weapon of assault from the place of occurrence. 3. At the close of investigation, police submitted charge sheet against the appellant under Section 302 IPC. The offence, being exclusively triable by the court of Sessions, the case was committed and the Addl. learned Sessions Judge (FTC), Biswanath Chariali framed charge under Section 302 IPC. The charges were read over and explained to the appellant to which he pleaded not guilty. 4. In order to prove their case, prosecution examined, as many as, 7 witnesses including one court witness (CW-1) i.e. the learned Magistrate, who recorded the confessional statement (Ext. 13), made by the appellant. At the close of the evidence for prosecution, the appellant was examined under Section 313 of the code of Criminal Procedure (in short, 'Cr. P.C'). He denied the allegations, brought against him. However, he retracted the confessional statement made by him and claimed to be tried. His plea was that he did not confessed voluntarily and that he had made confessional statement, on being dictated by the police. Considering the evidence, on record, the learned trial Judge convicted and sentenced the appellant, as indicated above. 5. Mr. R.K. Adhikari, learned Amicus Curiae, appearing for the appellant has submitted that, except the extra judicial confession, alleged to have been made before PWs No. 3 and 4 and the confessional statement (Ext. 13), made before the learned Magistrate (CW 1), there is no other direct or circumstantial evidence in support of the involvement of the appellant with the alleged crime. The learned Amicus Curiae has also submitted that the appellant, in his statement made under Section 313 Cr.P.C., has categorically denied to have made confessional statement voluntarily. It also submitted that the said extrajudicial confession and the judicial confession cannot be accepted as evidence against the appellant. It is submitted that the prosecution failed to establish that the appellant had assaulted the deceased with an intention to cause his death and as such the conviction and the sentence made under Section 302 IPC cannot be maintained. 6. Refuting the said argument, advanced by the learned Amicus Curiae, Mr. Z. Kamar, learned Public Prosecutor, Assam, appearing for the State respondent has submitted that there is sufficient cogent and reliable evidence against the appellant. 6. Refuting the said argument, advanced by the learned Amicus Curiae, Mr. Z. Kamar, learned Public Prosecutor, Assam, appearing for the State respondent has submitted that there is sufficient cogent and reliable evidence against the appellant. The learned Public Prosecutor has submitted that the evidence regarding extra judicial confession, made by P W 3 and 4 remained un-demolished and that the judicial confession has been recorded by the learned Magistrate after complying with the requirement of the provision of law by giving sufficient time for reflection. Therefore, it is submitted that the retraction of confessional statement, made after long delay i.e. at the time of giving statement under Section 313 Cr.P.C. cannot negate the evidential value of the confessional statement, which was duly recorded by the learned Magistrate as per law. The learned Public Prosecutor has also submitted that the seizure of the lathi i.e. the incriminating weapon, the fatal injuries sustained by the appellant and extra-judicial confession made by the appellant, sufficiently indicate that none other than the appellant had caused the death of the deceased. It is also submitted that in view of blows given on the vital parts of the deceased, causing instant death of the deceased; it can be safely held that the appellant had given the blows with intention to cause death of the deceased. 7. In view of the above, supporting the impugned conviction and the sentence, the learned Public Prosecutor has submitted that the impugned conviction and the sentence need no interference by this court. 8. Having heard the learned counsel, appearing for both the parties and carefully considering the evidence, on record, it is found that the deceased died due to injuries sustained by him in the courtyard of the appellant on 31.12.2005. His postmortem examination was done by Dr. Jogen Chandra Bey (PW-5) on 01.01.2006. The medical officer found the following injuries: 1. One penetrating injury on the left side upper neck below the mandible measuring 1" x 1/4 " penetrating the skin, super facial tissue, muscle and nerve and blood vessels. 2. One penetrating wound on the left lower part of the neck directing downwards measuring 1/2 " X 1/2 "penetrating up to apex of left lung. 3. In the outer wall multiple bruises on the left side. Inner wall shows blood clothing. Fracture ribs 2nd to 9th on the left side. 2. One penetrating wound on the left lower part of the neck directing downwards measuring 1/2 " X 1/2 "penetrating up to apex of left lung. 3. In the outer wall multiple bruises on the left side. Inner wall shows blood clothing. Fracture ribs 2nd to 9th on the left side. The said medical officer opined that all the injuries were ante mortem in nature. The medical officer also opined that the penetrating injuries were caused by sharp pointed weapon. According to the medical officer, the deceased died due to shock and haemorrhage, resulting from injuries sustained by him. 9. From the above medical evidence, it is found that the injuries were caused by sharp pointed object and the said injuries caused the death of the deceased. Now the question is as to whether the appellant had inflicted the said fatal injuries. 10. Shri Jaharu Orang i.e. the father of the appellant, who was also the brother of the deceased, deposing as P W 1 stated that he was informed by his brother Shri Laharu Orang (PW 2) that the appellant had caused the death of the deceased by assaulting him with a lathi. On being so informed, he rushed to the place of occurrence and found the dead body of his brother, lying in the courtyard of the appellant with injuries on his body. He also stated that police had prepared inquest report and seized a blood stained lathi which was lying near the dead body. From his said evidence, it is clearly found that the dead body of the deceased was lying in the courtyard of the appellant and as such it can be safely understood that the occurrence also took place in the courtyard of the appellant, who was the nephew of the deceased. 11. Shri Laharu Orang (PW 2), brother of the deceased stated that coming to know about the occurrence, he rushed to the place of occurrence and found the dead body of the deceased lying in the courtyard of the appellant in injured condition. He further stated that on being asked, the appellant had told him that he had assaulted the deceased causing his death due to taking his duck. He also stated that the police had seized a blood stain lathi from the place of occurrence. He exhibited the said lathi as material Ext. No. 1. He further stated that on being asked, the appellant had told him that he had assaulted the deceased causing his death due to taking his duck. He also stated that the police had seized a blood stain lathi from the place of occurrence. He exhibited the said lathi as material Ext. No. 1. This witness was duly cross-examined on behalf of the defence and no material contradiction could be elicited to render his evidence disbelievable. He being the uncle of the appellant and brother of the deceased, there is nothing to find that he had any ill-feeling or grudge against the appellant. His evidence has revealed the motive behind the crime i.e. the quarrel relating to taking the duck from the appellant. 12. Supporting the evidence of PW Nos. 1 and 2, Shri Devakanta Kheruar, deposing as PW 3, stated that the dead body of the deceased was found lying in the courtyard of the appellant and that on being asked, the appellant had disclosed that the deseeded, who had visited his house picked up a quarrel with him and as such he killed him. this witness also stated that the appellant had informed the Secretary of the VDP about the theft of his duck by the deceased. He further stated that police seized a lathi and a bucket from the place of occurrence, vide Ext. 1. He exhibited the lathi and the bucket as material Ext Nos. 1 and 2 respectively. From the evidence of PW Nos. 2 and 3, we find sufficient corroboration regarding extra- judicial confession made by the appellant. Though the said witnesses were cross examined by the defence, no material contradiction, in respect of their evidence could be elicited. 13. Shri Narendra Mandal, Secretary of the VDP, deposing as PW 4, in tune with the evidence, given by PWs 2 and 3, stated that the appellant had confessed his guilt. In his cross-examination, this witness clearly stated that the accused had made confession before arrival of the police. Shri Narendra Mandal was also a witness to the seizure list. This witness while exhibiting seizure list as Ext No. 1 and his signature there on as Ext 1 (2), stated that the investigating officer had seized a piece of split bamboo and a tin bucket from the place of occurrence. 14. Shri Narendra Mandal was also a witness to the seizure list. This witness while exhibiting seizure list as Ext No. 1 and his signature there on as Ext 1 (2), stated that the investigating officer had seized a piece of split bamboo and a tin bucket from the place of occurrence. 14. PW 7, Shri Deben Chandra Nath, the I.O., who took up the investigation of the case stated that, before receipt of the written FIR from the informant, he received information from Shri Debakanta Kherwar (PW-3) regarding the occurrence and accordingly he made GD. Entry No. 4396 on 31.12.2005. On the basis of the said GD. Entry, he visited the place of occurrence. Ext. 4 i.e. GD. Entry supports the contention, made in the written FIR (Ext. 5). However, as the machinery of investigation was moved by the information received vide said G.D. entry (Ext. 4), the said G.D. Entry was the first information report (FIR). The Ext. No. 5, at best, was a written statement, made by PW 1, who lodged the same. However, we find no material contradiction in the Ext. Nos. 4 and 5 aforesaid. From the evidence of the I.O., it is found that he prepared a sketch map (Ext. 6) and that the place of occurrence was the courtyard of the appellant. The fact that the occurrence took place in the courtyard of the appellant, when the deceased had gone to the house of the appellant, remained uncontroverted. Hence it has been established that the deceased who sustained fatal injuries was found lying in the courtyard of the appellant. 15. The investigating officer, who forwarded the dead body of the deceased for post mortem examination, stated that he had seized the weapon of assault i.e. one split bamboo and a bucket from the place of occurrence vide Ext. 1. He has exhibited the seized articles as material Ext. Nos. 1 and 2. Ext. 1 i.e. the seizure list reveals that the investigating officer had seized one piece of 2 1/2 feet long split bamboo and one bucket from the place of occurrence. The evidence of PW 7 regarding seizure has been supported by PW 3 and PW 4. The said seizure from the place of occurrence clearly indicates that the deceased was assaulted with the said seized item. The evidence of PW 7 regarding seizure has been supported by PW 3 and PW 4. The said seizure from the place of occurrence clearly indicates that the deceased was assaulted with the said seized item. The medical evidence rendered by PW 5 reveals that the deceased sustained penetrating wound because of use of sharp cutting object. From the said medical evidence, it is also found that there was a fracture of ribs on the deceased, multiple bruises with blood clotting. 16. From the evidence of PW 4, it is found that a tin bucket seized from the place of occurrence. Therefore, the nature of the injuries, found by the medical officer, indicates that those were caused by means of the seized piece of split bamboo and the tin bucket. Therefore, we find sufficient corroboration, on material point, to believe that the injuries were caused by seized article i.e. the piece of split bamboo and the tin bucket. 17. The judicial officer, who recorded the confessional statement, made by the appellant, deposing as CW1, exhibited the confessional statement, recorded by him, as Ext. No. 13. He has also exhibited the records, maintained by him as Ext Nos. 8, 9, 10, 11 and 12 regarding recording confessional statement. From the evidence of CW 1, it is found that he gave sufficient time for reflection by keeping the appellant in the judicial custody as well as in the custody of his office peon before recording the confessional statement and that he had duly explained to the appellant about the consequence of making confessional statement. From the Ext No. 12, i.e. form of recording the confessional statement, it is found that the appellant was produced before him on 02.01.2006 for recording confessional statement and the learned Magistrate, finding that the appellant was willing to make confessional statement, duly cautioned him by explaining the consequence of making such confessional statement and after taking necessary pre-caution, the learned Magistrate remanded the appellant to the judicial custody till 04.01.2006 for reflection. The appellant was also informed that he was not bound to make confessional statement, that the confessional statement, if made, would be used against him as evidence and that in the event of refusal to make confessional statement, he would not be given to the police. The appellant was also informed that he was not bound to make confessional statement, that the confessional statement, if made, would be used against him as evidence and that in the event of refusal to make confessional statement, he would not be given to the police. He was also informed that the concerned officer was not a police officer, but he was a judicial magistrate and that he should not state anything at the influence of others. 18. In view of the above, carefully perusing the materials on record, we find that the consequence of making confessional statement was duly explained to the appellant and that he was also assured of all necessary protection, in the event of refusal to make confession. From the record, it is found that even after such assurance and protection, the appellant made confessional statement, which has been duly recorded by the learned Magistrate. Therefore, we find sufficient material to believe that the confessional statement made by the appellant was true and voluntary. In his said confessional statement, the appellant stated that the deceased had stolen away Rs. 1,700/- and committed theft of a duck and that, on the date of occurrence at about 4.00 p.m., while the deceased had visited the house of the appellant and on being asked about the theft, the deceased had abused and assaulted him with a lathi and squeezed his neck. According to the appellant, on being so assaulted and abused by the deceased, out of anger, he had given lathi blows on the person of the deceased, as a result of which the deceased had fallen down and died. The appellant further stated that he did not know as to where the lathi blow had landed. 19. In view of the above discussion, we find that the confessional statement was recorded after complying with all the necessary requirements and also ascertaining the voluntariness of the accused. Therefore, the confession is found to be true and voluntary. As there is no doubt about the truthfulness and voluntariness of the confessional statement, we find no difficulty in accepting the said confessional statement. Therefore, the confession is found to be true and voluntary. As there is no doubt about the truthfulness and voluntariness of the confessional statement, we find no difficulty in accepting the said confessional statement. Of course, at the time of giving statement, under Section 313 Cr.P.C., the appellant denied to have made such a confessional statement The said confessional statement was retracted, at the belated stage i.e. at the time of giving statement under Section 313, thereafter, the retraction does not negate the evidentiary value of the confession, which is found to be true and voluntary. 20. We have already noticed that the appellant had made extra judicial confession also before PW Nos. 2,3,4 indicating his involvement with the alleged crime. We find that the said PW Nos. 2, 3 and 4, who deposed regarding extra judicial confession, do not appear to have any adverse interest, biasness or enmity or grudge against the appellant to falsely implicate him with the alleged crime. That apart, PW 2 was the uncle of the appellant, while PW Nos. 3 and 4 were the President and the Secretary respectively of the Village Defence Party. Considering the status of the said witnesses and in the absence of any evidence regarding adverse interest, coupled with the judicial confession, we find sufficient force to hold that the evidence, given by the said witnesses, regarding extrajudicial confession, is reliable and trustworthy and as such we accept the said confession. 21. From the above discussed evidence it has surfaced, that the appellant had a dispute with the deceased regarding theft of duck and the deceased visited the house of the appellant, on the date of occurrence, just prior to his death, that the deceased succumbed to the injuries sustained by him, that the dead body of the deceased was lying in the courtyard of the appellant, that the incriminating weapons were seized from the place of occurrence i.e. the courtyard of the appellant, that the deceased sustained injuries caused by sharp pointed weapons i.e. a piece of split bamboo and a tin bucket. The said circumstantial evidence, coupled with the extrajudicial confession as well as the judicial confession, made by the appellant, form a complete chain of events, conclusively leading to the irresistible conclusion that none other than the appellant had caused death of the deceased. The said conclusion is inconsistent with the innocence of the appellant. The said circumstantial evidence, coupled with the extrajudicial confession as well as the judicial confession, made by the appellant, form a complete chain of events, conclusively leading to the irresistible conclusion that none other than the appellant had caused death of the deceased. The said conclusion is inconsistent with the innocence of the appellant. Therefore, we have no hesitation in holding that the appellant caused the death of the deceased by inflicting injuries on his person. The appellant has been rightly held guilty of committing homicidal death of the deceased. 22. As we are relying on the confessional statement, made by the appellant, we have to accept the statement as a whole. The appellant, in his statement, stated that the deceased, after arriving at his house, picked up a quarrel with him, assaulted and quizzed his neck and that, out of anger, he had given lathi blows on him without knowing where the blows had fallen. As we have already accepted his confessional statement to base the conviction, we find no difficulty in accepting the said version of the appellant. From Ext. 5, it is found that the appellant and the deceased who were close relatives had some domestic dispute. PWs 2, 3 and 4 stated about theft of duck and money. PW 4, who was the Secretary of the VDP, stated that, on 31.12.2012, i.e. prior to the occurrence, the appellant had lodged a complaint with him urging that the deceased had stolen Rs. 1,700/-and a duck from him. The appellant in his confessional statement also stated about the said allegations. He further stated that, on the date of occurrence, the deceased had visited his house prior to the occurrence at about 4.00 p.m. and entered into a quarrel with him by abusing and assaulting him. This act on the part of the deceased, provoked the appellant to assault the deceased. Therefore, we find sufficient force to believe that the appellant committed the act of culpable homicide, being deprived of power of self control, under grave and sudden provocation. The facts and circumstances of this case clearly reveal that it was the deceased who had visited the house of the appellant and got engaged in a quarrel with the appellant. The appellant did not chase him to his house. Hence the deceased appears to have provoked the appellant. 23. The facts and circumstances of this case clearly reveal that it was the deceased who had visited the house of the appellant and got engaged in a quarrel with the appellant. The appellant did not chase him to his house. Hence the deceased appears to have provoked the appellant. 23. There is nothing on record to show that the appellant had any pre-meditation to assault the deceased. Therefore, it is clearly found that the appellant, without premeditation, in a sudden fight and in the hit of passion upon a sudden quarrel had assaulted the deceased and that too with a piece of split bamboo and tin bucket. From the statement of the appellant, it is found that the appellant was initially assaulted by the deceased and the deceased made attempt to strangulate him by squeezing his neck. Therefore, the act of giving blows that too with a piece of split bamboo and tin bucket does not indicate that he had taken any undue advantage or acted in an un-usual manner. Therefore, the act had done by the appellant falls under exception Nos. 1 and 4 of Section 300 IPC. 24. This being the position, the appellant cannot be held guilty of murder i.e. committing offence under Section 302 IPC. Therefore, the conviction and the sentence under Section 302 IPC are liable to be modified as one under Section 304 IPC and we do so. 25. The appellant in his confessional statement stated that he had given the blows without knowing, where the blows had landed. Therefore, it is clear that the appellant had given the blows blindly without identifying any part of the body and without any intention to cause any particular injury. 26. Therefore, considering the matter in its entirety, it cannot be held that the appellant had caused the injuries with intention of causing such fatal injury, as is likely to cause the death of the deceased. Therefore, the offence committed by the appellant will not fall under Section 304 Part-II PC but the same will fall under Section 304 Part-II. Accordingly, we alter the conviction under Section 302 IPC and held that the appellant committed the offence under Section 304 Part-II IPC and sentenced him to suffer imprisonment for seven years and pay fine of Rs. 500/-, in default suffer simple imprisonment for another one month. Accordingly, we alter the conviction under Section 302 IPC and held that the appellant committed the offence under Section 304 Part-II IPC and sentenced him to suffer imprisonment for seven years and pay fine of Rs. 500/-, in default suffer simple imprisonment for another one month. The period of imprisonment already undergone by the appellant shall be treated as set off. 27. The appeal is partly allowed. 28. The death of the deceased was certainly a great loss of the dependent family members, if any. Therefore, the dependents are entitled to get compensation under Section 357-A Cr. P.C. 29. For the sake of brevity, without repeating the discussions, made in the Criminal Appeal No. 93(J) /2005 (disposed of on 22.12.2011), with regard to the victim compensation, as provided by Section 357A Cr.P.C., we make the following directions: (1) As an interim relief, and without prejudice to the right of the dependants of the victim to claim higher amount, an amount of Rs. 50,000/- be deposited by the State Government with the District Legal Services Authority of Sonitpur District within a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependant(s), who suffered loss and injury as a result of death of the deceased and also if such dependents) or legal representatives) need any rehabilitation" (2) Upon such enquiry, if it is found that the dependent(s), if any, need rehabilitation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. It is made clear that if the District Legal Services Authority, after due enquiry, arrives at the findings that there is no dependent(s) or that the dependent(s) of the deceased/victim does not require any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs. 50,000/-, without delay, in favour of the State Government. 30. We record our appreciation for the services, rendered by Sri R.K. Adhikary, as Amicus Curiae and direct that an amount of Rs. 5,000/- be paid to him as his remuneration, by the State Legal Services Authority. Return the LCR.