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2012 DIGILAW 1270 (GAU)

Ratan Saren v. State of Assam

2012-11-15

I.A.ANSARI, P.K.MUSAHARY

body2012
JUDGMENT I.A. Ansari, J. 1. This appeal is directed against the judgment and order, dated 04.05.2006, passed, in Sessions Case No. 91 of 2005, by the learned Additional Sessions Judge (FTC), Sonitpur, Tezpur, convicting the accused-appellant under Section 302, IPC and sentencing him to suffer imprisonment for life and pay a fine of Rs.1,000/- and, in default of payment of fine, suffer rigorous imprisonment for 2 (two) months. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: On 12.02.2005, at about 7:30 p.m., accused Ratan Suren assaulted his father, Boga Soren, by giving him blows with a lathi. As a result of the assault, Boga Soren sustained fracture of his temporal bone as well as of his right frontal bone. Because of the injuries sustained by him, Boga Soren died and his elder brother, Sing Rai Chauhan, informed their neighbour, Bhondaram Murmu, that the accused had killed his father by assaulting with a bamboo lathi. Having come to know of the occurrence, when PW 1 went to the house of the accused, he saw the dead body of Boga Soren lying at the verandah of his house with injury on his cheek, face and nose and when PW 1 asked him (accused), the accused told him that he had killed his father out of anger. Following the occurrence, Tilak Soren, brother of deceased Boga Soren, went to Thelamara Police Station and lodged there written ejahar (Ext. 3) alleging therein that his elder brother, Boga Soren, had been killed by accused Ratan Soren by giving him blows with a lathi. Basing on the said ejahar and treating the same as First Information Report (in short, 'FIR'), a case was registered against the accused under Section 302, IPC. During the course of investigation, police visited the place of occurrence, held inquest over the said dead body, prepared the sketch map and also got postmortem examination performed on said dead body. On completion of investigation, charge-sheet was laid, under Section 302, IPC, against the accused-appellant. 2. At the trial, when a charge under Section 302, IPC was framed against the accused-appellant, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 8 (eight) witnesses. On completion of investigation, charge-sheet was laid, under Section 302, IPC, against the accused-appellant. 2. At the trial, when a charge under Section 302, IPC was framed against the accused-appellant, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 8 (eight) witnesses. The accused-appellant was, then, examined under Section 313, Cr.PC and, in his examination aforementioned, the accused-appellant denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that of denial. No evidence was adduced by the defence. 4. Having, however, found the accused-appellant guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, which has been passed against him, the accused, as a convicted person, has preferred this appeal. 5. We have heard Miss N. Hawelia, learned amicus curiae, and Mr. D. Das, learned Additional Public Prosecutor, Assam. 6. While considering the present appeal, let us, first, take note of the evidence of PW 1, whose evidence is that he knows the accused, he knew deceased Boga Soren, father of the accused, and, in the morning of the day of the occurrence, Sing Raj Chauhan, uncle of the accused, told him that the accused had beaten his father by a cane and, on coming to know what Sing Rai Chauhan had told him (PW 1), PW 1 came to the house of the accused and saw Boga Soren lying dead at the verandah of the house with injuries on his cheek, face and nose. It is in the evidence of PW 1 that when he asked the accused as to why he (accused) had killed his father/the accused told him that he had killed his father out of anger. 7. Though PW 1 has also deposed that the police came and, on being asked by the police, accused stated that he had killed his father out of anger, the statement, so attributed to the accused by PW 1, is inadmissible in evidence inasmuch as a confession, if made to police, is inadmissible in evidence. 8. 7. Though PW 1 has also deposed that the police came and, on being asked by the police, accused stated that he had killed his father out of anger, the statement, so attributed to the accused by PW 1, is inadmissible in evidence inasmuch as a confession, if made to police, is inadmissible in evidence. 8. What is, however, significant to note, in the evidence of PW 1, is that he has deposed that accused showed the police a lathi, saying that he had killed his father with the lathi and the police seized the same. The fact that Sing Rai Chauhan had informed PW 1 that the accused had assaulted his father, the fact that PW 1 came, on being so informed, to the house of the accused and the fact PW 1 found Boga Soren lying dead at the verandah of his house have all remained unchallenged and undisputed by the defence. In fact, it is also the evidence of PW 1, during the course of his cross-examination, that he was the first one to have reached the place of occurrence before other people arrived there. Though PW 1 has denied that the accused did not confess before him, we see no reason to disbelieve his evidence that the accused confessed before him by telling him that he had killed his father out of anger, when there is no pointed cross-examination by the defence in this regard. 9. We may pause, for a moment, at this stage, to point out that as Sing Rai Chauhan has not been examined, the evidence given by PW 1 to the effect as to what Sing Rai Chauhan had told him (PW 1) is admissible in evidence to the extent that PW 1 had been told by Sing Rai Chauhan that the accused had assaulted his father. Whether what Sing Rai Chauhan had reported to PW 1 was or was not true would, however, remain hearsay and inadmissible in the evidence, because of the fact that Sing Rai Chauhan has not been examined and the truthfulness and/or veracity of this statement, attributed to Sing Rai Chauhan, remained unascertained. 10. Bearing in mind what have been discussed above, when we come to the evidence of PW 2 and PW 3, we find that, according to their evidence, the accused had told his co-villagers and the police that he had killed his father. 10. Bearing in mind what have been discussed above, when we come to the evidence of PW 2 and PW 3, we find that, according to their evidence, the accused had told his co-villagers and the police that he had killed his father. As the evidence given by PW 2 is not clear as to whether the accused had informed his co-villagers in the absence of the police or in the presence of the police that he had killed his father, we have no option but to hold that the accused had informed the police, in the presence of co-villagers, that he had killed his father. This confession, having been made to the police, is wholly inadmissible in the evidence and we, therefore, keep the evidence of PW 2 and PW 3 excluded from the purview of our consideration as inadmissible, particularly, when we notice that PW 2 has deposed that he himself did not clearly heard the accused telling the police that he (i.e., the accused) had beaten Boga Soren with lathi. 11. As far as PW 4 is concerned, he is the writer of the ejahar, which the prosecution claimed to have been written as per the instructions of Tilak Soren (PW 5). The evidence given by PW 4 is to the effect that Tilak Soren had got the ejahar (Ext. 3) written by him (PW 4). However, this assertion of PW 4 has been disputed by defence and PW 5 has claimed that he does not know how Boga Soren died and that the ejahar, which has been brought on record, was not written as per his instructions; rather, his signature was obtained on blank sheets of papers by the police at the said police station. Notwithstanding the fact that PW 5 has claimed, in his cross-examination by the defence, that the police came to his house and obtained his signatures, as indicated above, it is curious to note that, while cross-examining the investigating officer, the defence did not even suggest to him that the signatures of PW 5 had been obtained by PW 8 on blank sheets of papers. The plea, therefore, taken by PW 5 that Ext. 3 was not written by PW 4 as per the instructions of PW 5, cannot be believed at all and, can be given no credence at all. The plea, therefore, taken by PW 5 that Ext. 3 was not written by PW 4 as per the instructions of PW 5, cannot be believed at all and, can be given no credence at all. This does not, however, mean, we must bear in mind, that Ext. 3 becomes substantive evidence. The contents of the FIR are, undoubtedly, important, but no conviction can be based on the contents of the FIR itself. 12. Coming to the evidence of the doctor (PW 7), who, admittedly, performed post-mortem examination, on 14.02.2005, on the dead body of Boga Soren, we notice that according to his evidence, he found as follows: Stout male body. Rigor mortis absent. Eyes & mouth are closed. One swelling is found over the right side of the shaft 4" x 3" in size. On internal examination, there is fracture of right temporal bone and fracture of right frontal. Membranes are replaced. Brain matter concealed. Other organs are healthy. 13. In the opinion of the doctor, the injuries were ante mortem in nature and the cause of death was the head injuries, which Boga Soren had sustained, the head injuries being, as indicated above, fracture of the right temporal bone as well as fracture of the right frontal bone. 14. Though the doctor (PW 7) was put to cross-examination by the defence, nothing was elicited from his cross-examination to show that his findings and/or his opinion, with regard to the cause of death, are incorrect or untrue. This apart, we, too, do not notice anything inherently improbable, incorrect or untrue in the evidence of PW 7. We have, therefore, no hesitation in concluding that Boga Soren died, because of the injuries as described above. 15. The question, now, is as to what offence, if any, the accused had committed by assaulting his father by means of a lathi and causing his death. 16. It is noteworthy that the evidence of PW 1, if we may reiterate, is that when he asked the accused as to why he (accused) had killed his father, the accused replied that he had done so out of anger. The fact that the accused had killed his father cannot be considered divorced from the fact that the killing was out of anger. These two compartments of the present appellant's confessional statement are of the nature of the extra-judicial confession. The fact that the accused had killed his father cannot be considered divorced from the fact that the killing was out of anger. These two compartments of the present appellant's confessional statement are of the nature of the extra-judicial confession. If this extra-judicial confession is considered in the light of evidence of PW 5. It transpires that according to his undisputed evidence, Boga Soren was a habitual drunkard and was in the habit of creating nuisance, while drunk. 17. In the back drop of the fact that Boga Soren was in the habit of drinking and creating nuisance, when we consider the evidence of PW 1, who has deposed that the accused admitted before him that he had killed his father out of anger, we are of the view that in the facts and attending circumstances of the present case, the accused-appellant must be taken to have lost his self-control, because of the grave and sudden provocation caused by the conduct of the said deceased by creating nuisance, while in drunken state. When the accused-appellant happened to kill his father on being deprived of his power of self-control, because of the grave and sudden provocation caused by the conduct of the deceased as indicated hereinbefore, we are, in the light of the evidence on record, of the considered view that the accused-appellant could not and ought not to have been convicted of the offence of murder, but ought to have been held guilty of having committed the offence of culpable homicide not amounting to murder. 18. Considering the fact that the said deceased had sustained two fractures on his head, there can be escape from the conclusion that accused-appellant had, with intent to cause death, assaulted his father, though, at that point of time, the accused-appellant was deprived of his power of self-control, because of the grave and sudden provocation caused by the said deceased as mentioned above. The facts of the case, thus, constituted an offence punishable under Section 304 (Part 1), IPC. 19. Because of what have been discussed and pointed out above, we do not find that the conviction of the accused-appellant, under Section 302, IPC, is sustainable. This appeal, therefore, partly succeeds. The facts of the case, thus, constituted an offence punishable under Section 304 (Part 1), IPC. 19. Because of what have been discussed and pointed out above, we do not find that the conviction of the accused-appellant, under Section 302, IPC, is sustainable. This appeal, therefore, partly succeeds. While the accused-appellant is held not guilty of the offence under Section 302, IPC and is acquitted of the charge of murder, he is hereby held guilty of the offence under Section 304 (Part 1), IPC and convicted accordingly. 20. Coming to the sentence, we are of the view that in the facts and attending circumstances of the present case, a sentence of rigorous imprisonment, for a period of 7 (seven) years, would be adequate punishment and serve the ends of justice. We, accordingly, sentence the accused-appellant to undergo rigorous imprisonment for a period of 7 (seven) years and pay fine of Rs.1,000/- and, in default of payment of fine, undergo rigorous imprisonment for a further period of 3 (three) months. The period, which the accused-appellant has already undergone in imprisonment, be set off, in accordance with the provisions of Section 428, Cr PC as against the term of the sentence, which has been passed, in this appeal, against him. 21. With the above observations and directions, this appeal shall stand disposed of. 22. Let the learned amicus curiae be paid a sum of Rs.5,000/- for the valuable assistance rendered by her to this Court. Send back the LCR. Appeal Partly Allowed.