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2012 DIGILAW 222 (GAU)

M. S. Dawngzela v. State of Mizoram

2012-02-17

UJJAL BHUYAN

body2012
JUDGMENT Hon'ble Mr. Justice Ujjal Bhuyan 1. This appeal is directed against the judgment and order dated 12-5-2011 passed by the learned Addl. District and Sessions Judge-1, Aizawl in Criminal Trial No. 36 of 2009 convicting the accused appellant under Section 304 Part-I IPC and sentencing him to under go R. I for a period of 7(seven) years with a fine of Rs. 1000/-, in default, R. I. for a further period of one month. 2. The prosecution case in brief is that on the night of 03-03-2009, the accused appeared before the Champhai Police Station and orally stated that about 7.30 pm that is in the evening following a drunken brawl, he had stabbed to death one R. Laltluanga. He further stated that the place where he stabbed the victim to death was at Vengthar locality near the Roman pond. The oral information was recorded in written form and treated as a first information report and on the basis of the same, Champhai P.S Case No. 23 of 2009 was registered. Be it stated that both the accused and the deceased were police men. 3. The police thereafter conducted investigation and on completion of the same, submitted charge sheet. On the available materials, the learned trial Court framed charge against the accused that on 03-03-2009 at about 7.30 pm, he had stabbed to death the deceased with a knife at Vengthar near Roman Catholic Pond, thus committing an offence punishable under Section 302 IPC. 4. The prosecution examined as many as 12 witnesses. On the other hand, the accused examined himself as DW-1. Thereafter, the accused was examined under Section 313 Cr. P.C. The defence plea was that the accused had exercised his right of private defence while stabbing the victim. Considering the evidence on record, the learned trial Court did not accept the said plea. 5. By the judgment and order dated 12-5-2011, the learned trial Court convicted the accused under Section 304 Part-I IPC and sentenced him as indicated above. 6. Heard Mr. Lalfakawma, learned Amicus Curiae for the appellant and Mr. A.K. Rokhum, learned P.P for the State of Mizoram. 7. The learned Amicus Curiae submits that the accused had no intention to kill the deceased and that he had acted only in self defence when he was faced with an attack by the deceased. 6. Heard Mr. Lalfakawma, learned Amicus Curiae for the appellant and Mr. A.K. Rokhum, learned P.P for the State of Mizoram. 7. The learned Amicus Curiae submits that the accused had no intention to kill the deceased and that he had acted only in self defence when he was faced with an attack by the deceased. According to the learned Amicus Curiae, the evidence on record are not conclusive to establish the guilt of the accused and, therefore, following the well established principles of criminal jurisprudence, the learned trial Court ought to have given the benefit of doubt to the accused. 8. Resisting the above submission, learned P.P submits that the testimonies of the witnesses are clear and unambiguous. The evidence adduced, read as a whole, would lead to the one and the only conclusion, that is the commission of the offence of the accused. He further submits that the sentence imposed by the learned trial Court is inconsistent with the mandate of Section 304 Part-I IPC and, therefore, the sentence should be enhanced in tune with the aforesaid section. 9. Having heard the rival submissions, let us now briefly examine the relevant portion of the evidence adduced by the various witnesses. 10. P.W-1 is Liankhuma. He is a Grade-IV staff in the Office of the Superintendent of Police (S.P), Champhai. He has stated that he knew the accused, who was a driver of the said S.P and also the deceased, who was a P.S.O to the S. P of the 2nd I.R. Battalion. At that time, he was stationed at the Champhai police station. On 03-03-2009, the S.P was out of station. As he was free, he along with the deceased and a few others went out and took local liquor in the house of one Rotluanga. After consuming liquor, he and the deceased went back to the residence of the S.P. On their way back, they encountered a liquor seller who gave them free liquor in his house which they consumed. At around 5 pm, the accused also joined them and all the three together took liquor. During that period, the accused and the deceased had a quarrel whereafter all the three left the house. On their way back, the two again quarrelled forcing PW-1 to intervene. At around 5 pm, the accused also joined them and all the three together took liquor. During that period, the accused and the deceased had a quarrel whereafter all the three left the house. On their way back, the two again quarrelled forcing PW-1 to intervene. PW-1 took hold of one of the hands of the accused and as they started walking, the deceased over took them saying that the accused was holding a knife. After a short while, the deceased came towards the accused with a wooden stick. Thereafter, a physical fight broke out between the two and both of them fell and rolled down the road. After a short while, the accused came up the road and told PW-1 that he had committed murder and that he should also not talk much. The accused thereafter went away. When the PW-1 called out to the deceased, there was no reply. He was already dead. According to him, the occurrence took place at about 7 pm in the evening. 11. Pw-4, Zarzokima, another police man, deposed that when he came to know about the incident, he rushed to the place of occurrence where he found a dead body covered by a piece of cloth. When he removed the piece of cloth, he could identify the dead body as that of the deceased. He also found the wife of the accused at the place of occurrence grieving. She informed him that her husband had gone to the police station to surrender. 12. PW-6 is Nauraj, who is a driver attached to the S.P, Champhai. He deposed that at about 6 pm on 03-03-2009, the accused had called him over phone but as the family was having prayer, he did not answer the call. At about 6.50 pm he called back through his mobile phone when the accused expressed his anger against the deceased and stated that he was looking for him. 13. PW-10, C. Lalhuama is one of the seizure witnesses. He stated that on 03-03-2009 the police had seized one knife stained with blood and one light grey coloured trouser belonging to the accused stained with blood. 14. PW-11 is the Dr. James R. E. Mawia, the Medical Officer, who conducted the post mortem examination. Exhibit P-4 is the post mortem report. 15. PW-12, V. Lalbiaksanga is the Investigating Officer, who had filed the charge sheet. 14. PW-11 is the Dr. James R. E. Mawia, the Medical Officer, who conducted the post mortem examination. Exhibit P-4 is the post mortem report. 15. PW-12, V. Lalbiaksanga is the Investigating Officer, who had filed the charge sheet. He stated that he had visited the place of occurrence where he found blood stain on the ground. On the eve of conducting inquest on the dead body of the victim, he had seized one T. Shirt stained with blood having piercing marks of knife. He also recovered one black T. shirt stained with blood having piercing knife marks worn by the deceased on 03-03-2009 from the residence of the brother-in-law of the deceased as the dead body was taken to that house. He also seized one big knife with scabbard stained with blood, one light grey coloured trouser stained with blood belonging to the accused from the house of the accused. The blood sample of the deceased taken during the post mortem examination matched with the blood stains found in the knife and the trouser of the accused which he had seized as per the FSL report. 16. The accused giving evidence as DW-1 stated that he was carrying a knife and when the deceased came towards him with a wooden stick, he fought back with his knife. The accused, when examined under Section 313 Cr. P.C, while admitting that he was in a drunken condition, stated that though he had stabbed the deceased in self defence, he did not exactly remembered how many times he had stabbed him. But at another stage, he stated that the deceased had hit him and they fell down the road and that he had stabbed the deceased in drunken confusion though he did not know how many times he had stabbed the deceased. 17. The post mortem report disclosed as many as eight stab wounds, most of them in the region of the chest. The doctor was of the view that the deceased had sustained multiple stab injuries which were ante mortem and recent on nature. In his opinion, the cause of death was due to haemorrhage shock because of the stab injury of the heart. 18. From the evidence on record, it transpires that the accused was carrying a knife with him. On the fateful evening he was drinking with the deceased and had heated arguments with the deceased. In his opinion, the cause of death was due to haemorrhage shock because of the stab injury of the heart. 18. From the evidence on record, it transpires that the accused was carrying a knife with him. On the fateful evening he was drinking with the deceased and had heated arguments with the deceased. PW-1, the most vital witness, who was present at the scene, saw the two of them grappling with each other, thereafter falling and rolling down the road. He also stated that after some time the accused came up the road with the knife in hand saying he had committed murder. According to PW-4, he saw the dead body of the deceased with the wife of the accused grieving nearby. The wife told him that the accused had gone to the police station to surrender before the police. The knife used by the accused was seized from the residence of the accused with blood stain all over it. The accused in his statement admitted stabbing the victim though claiming to be in self defence. The medical evidence as indicated above clearly discloses multiple stab wounds leading to the death of the victim. The blood of the deceased also matched with the blood stains found in the knife and the trouser seized from the house of the accused. 19. The testimony of the other witnesses and the medical evidence complement each other. Though there are minor discrepancies here and there, which is bound to be there, the same are not such so as to compel one to disbelieve the prosecution case altogether or to demolish the same completely. Considering the entire evidence on record in its totality, it can lead to one and the only conclusion that the accused had stabbed the victim leading to his death. 20. The plea of self defence of the accused cannot be accepted as because he was carrying the knife right from the beginning. There is also no injury mark on his body to show that he was hit by the deceased because of which he had stabbed the victim as an act of self defence. Moreover, the fact that the accused stabbed the victim eight times clearly goes to show that it was not an act of self defence. The fact that he joined PW-1 and the deceased while they were drinking reveals the real intention of the deceased. Moreover, the fact that the accused stabbed the victim eight times clearly goes to show that it was not an act of self defence. The fact that he joined PW-1 and the deceased while they were drinking reveals the real intention of the deceased. The PW-1 in his testimony has clearly stated that after the two had rolled down the road, he found the accused coming up the road a little while later holding the knife in his hand and saying that he had committed murder. 21. In view of the above, the plea of self defence raised by the accused cannot be accepted and the same is hereby rejected. 22. The evidence brought on record clearly prove that the accused with the intention of causing death had stabbed the victim by the knife which he was carrying, which caused the death of the victim. Therefore, the learned trial Court was justified in convicting the accused appellant under Section 304 Part-I IPC, which is hereby upheld. 23. Coming to the sentence imposed, it is seen that for an offence punishable under Section 304 Part-I, the punishment is imprisonment for life or imprisonment of either description for a term which may extend to 10(ten) years and, shall also be liable to fine. In the instant case, the sentence imposed is R. I for a period of 7(seven) years with a fine on Rs. 1000/-, in default, further R. I. for one month, which is not in tune with the punishment provided under Section 304 Part-I IPC. 24. The question, therefore, arises regarding enhancement of the said sentence to bring it in tune with the mandate of Section 304 Part-I IPC. However, it is seen that no notice was issued to the accused regarding enhancement of the sentence. 25. Considering the above and in the interest of justice, I deem it appropriate to remand the matter back to the learned Addl. District and Sessions Judge-1, Aizawl district to decide afresh only on the question of sentence, after giving the accused a reasonable opportunity of showing cause and hearing. 26. With the above directions and observations, Criminal Appeal No. 26 of 2001(J) stands disposed of. 27. Registry to send down the LCR forthwith. 28. Before parting with the record, this Court would like to place on record its appreciation for the services rendered by the learned Amicus Curiae, Mr. 26. With the above directions and observations, Criminal Appeal No. 26 of 2001(J) stands disposed of. 27. Registry to send down the LCR forthwith. 28. Before parting with the record, this Court would like to place on record its appreciation for the services rendered by the learned Amicus Curiae, Mr. Lalfakawma, whose remuneration fixed at Rs. 10,000/- shall be paid at an early date.