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2012 DIGILAW 416 (GAU)

Raju Sukram v. State of Assam

2012-03-30

ADARSH KUMAR GOEL, C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 19.9.2009, passed by the learned Additional Sessions Judge No. 2 (FTC), Tinsukia, in Sessions Case No. 110 (T)/ 2004. By the impugned judgment and order, the learned Sessions Judge, convicted the appellant, under sections 342/302 read with section 34 of the Indian Penal Code (hereinafter referred to as the IPC) and sentenced him to suffer simple imprisonment for three months and pay fine of Rs. 500/-, in default suffer simple imprisonment for another period of one month, for his conviction under section 342/34 IPC and suffer imprisonment for life and pay fine of Rs. 5,000/- in default undergo rigorous imprisonment for additional period of six months for his conviction under section 302/34 IPC. It has been directed, by the said judgment, that both the sentences shall run concurrently. Aggrieved by the said conviction and sentence, the convict, as appellant, has come up with this appeal. 2. We have heard Ms. N. Mitra, learned Amicus Curiae, appearing for the appellant and Mr. K. Mazumdar, learned Additional Public Prosecutor, for the State of Assam. 3. The prosecution case, as revealed at the trial, is that, on 3.8.2002, at about 9.30 P.M., the appellant and Shri Anant Ram Ganju @ Ahat Ram Ganju killed Shri Bachan Munda (herein after called the deceased) by, assaulting him with a piece of wood (i.e. a branch of tree) and the dead body of the deceased was found in injured condition in the house of the appellant. Shri Rajesh Mirdha (PW1), i.e. the brother of the deceased, lodged an FIR (Exhibit-1) on 4/8/2002, which was registered as Doom Dooma Police Station Case No. 188/2002, under sections 302/34 IPC. Upon receipt of the FIR aforesaid, Police launched investigation into the matter. 4. During the course of investigation, Police, along with an Executive Magistrate, visited the place of occurrence, recovered the dead body of the deceased from the house of the appellant, prepared the inquest report in respect of the dead body, seized a pruning knife, found near the dead body and forwarded the dead body to the Assam Medical College and Hospital for post mortem examination. The accused, who was not found in his residence at the time of visit of the Police, was subsequently arrested by the Police along with Shri Anant Ram Ganju. The accused, who was not found in his residence at the time of visit of the Police, was subsequently arrested by the Police along with Shri Anant Ram Ganju. The appellant Shri Raju Sukram was forwarded to the Judicial Magistrate for recording his confessional statement and accordingly, the learned Judicial Magistrate (PW7), recorded his confessional statement (Exhibit-7). 5. At the close of investigation, Police submitted charge sheet, under sections 342/302/ 34 IPC, against the accused persons, by showing the other accused persons namely Tinku Mura and Smt. Birchi Mura as absconders. As accused Tinku Mura and Smt. Birchi Mura had absconded, the case against them was separated and filed after preparing a supplementary case record. Accordingly, the learned Judicial Magistrate, Tinsukia, committed the case in respect of the appellant and Shri Anant Ram Ganju to the Court of Sessions. 6. The learned Sessions Judge framed charges against the appellant and Anant Ram Ganju under sections 342 and 302 read with section 34 IPC. The charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. During the trial, the accused Anant Ram Ganju @ Ahat Ram Ganju, absconded and as such the trial proceeded against the present appellant. 7. In order to prove their case, prosecution examined, as many as seven witnesses, including the Medical Officer (PW4), who performed the autopsy, the Judicial Magistrate (PW7), who recorded the confessional statement of the appellant and the Investigating Police Officer (PW6). Two more witnesses namely Anil Tanti and Raju Tanti were examined as Court Witness Nos. 1 and 2 respectively. At the close of the evidence for the prosecution, the accused person was examined, under section 313 Cr. P.C. He denied the allegations, leveled against him. The plea of the appellant, as taken in his statement, under section 313 Cr. P.C. is that, on the date of occurrence, the deceased made attempt to commit rape on his wife and also assaulted him. According to the appellant, after assaulting the deceased and apprehending that he might be assaulted by the villagers, he had left his house. He also admitted that, subsequently, he came to know that the deceased died. He further submitted that, he made confessional statement, before the Magistrate. In support of his plea, the appellant examined himself as DW1. 8. According to the appellant, after assaulting the deceased and apprehending that he might be assaulted by the villagers, he had left his house. He also admitted that, subsequently, he came to know that the deceased died. He further submitted that, he made confessional statement, before the Magistrate. In support of his plea, the appellant examined himself as DW1. 8. Considering the evidence, on record, the learned Trial Judge, held the appellant guilty of the offences under sections 342 and 302 read with section 34 IPC and accordingly convicted and sentenced him as indicated above. 9. Ms. N. Mitra, learned amicus curiae, appearing for the appellant, has submitted that the prosecution failed to establish the case by adducing cogent and reliable evidence and as such the learned Trial Judge committed error, by convicting and sentencing the appellant. The learned amicus curiae has submitted that, as the deceased used to disturb the wife of the appellant with ill-motive and also tried to assault the appellant, he, in exercise of right of private defence, assaulted the deceased. It is submitted that, as the death of the appellant was caused in exercise of right of private defence, the conviction and sentence, recorded under section 302 IPC is not maintainable. 10. Mr. Mazumdar, learned Additional Public Prosecutor, taking this court through the evidence, on record and referring to the defence evidence, and the confessional statement made by the appellant has submitted that the appellant's confession made by the appellant that he had caused the death of the deceased by assaulting him has lent sufficient support to the evidence, rendered by the prosecution witnesses. Learned Additional Public Prosecutor has also submitted that the appellant failed to establish the plea that he acted, in exercise of private defence and as such he is not entitled to get the benefit. The learned Additional Public Prosecutor has also submitted that the prosecution witnesses, more particularly the evidence of CW1, clearly reveal that the appellant, along with Anant Ram Ganju, had assaulted the deceased, on his head, with a firewood and thereafter, they confined him inside the house. It is also submitted that the finding of the dead body of the deceased, in the house of the appellant, wherefrom the appellant had fled, after the incident, convincingly led to the conclusion that the appellant and his co-accused had caused the death of the deceased. It is also submitted that the finding of the dead body of the deceased, in the house of the appellant, wherefrom the appellant had fled, after the incident, convincingly led to the conclusion that the appellant and his co-accused had caused the death of the deceased. Therefore, it is submitted that the learned Trial Judge committed no error by recording the conviction and the sentences as indicated above. 11. Having heard the learned counsel for the parties and carefully perusing the evidence, on record, we find no difficulty in understanding that the deceased died, on the night of 3.8.2002, in the house of the appellant. The Investigating Officer, who deposed as P W6, found the dead body of the deceased in the house of the appellant, wherein the appellant was not found available. Shri Rajen Mirdha (PW1), who lodged the FIR (Exhibit-1), supporting the evidence of the Investigating Officer, stated that the dead body of the deceased was found, in the house of the appellant, in injured condition. Corroborating the evidence of PW1 and PW6, Shri Tuffan Tanti (PW2), also stated that the dead body of the deceased was found in the house of the appellant. PW2 stated that his brother Shri Anil had told him that he had seen the accused assaulting the deceased. Shri Anil Tanti, brother of PW2, deposing as CW1, stated that on the fateful night, he attended the birthday celebration of the appellant's son in the appellant's house. The said witness further stated that as the music system, in the house of Raju Sukram, was played in high volume, the deceased had visited the appellant's house and asked him to reduce the volume of the music system. CW1 further stated that, on being so asked, by the deceased, the appellant had given a blow, on the head of the deceased, with a fire wood, as a result of which he had fallen down. He also stated that the appellant and Shri Anant Ram Ganju had taken the deceased inside the house and closed the door of the house, in which, on the following day, he had seen the dead body of the deceased, lying therein. CW1 was duly cross-examined, on behalf of the defence, but no material contradiction could be elicited to render his evidence disbelievable. CW1 was duly cross-examined, on behalf of the defence, but no material contradiction could be elicited to render his evidence disbelievable. CW2 also stated that, on the next morning, he visited the house of the appellant, along with others and found the dead body of the deceased lying therein. Supporting the evidence of CW1, this witness stated that the birthday of the son of the appellant was celebrated on the previous night. Shri Chaban Tati (PW3) stated that his brother Ghanashyam had informed him that the deceased was assaulted by the appellant and Shri Anant Ram Ganju in the house of the appellant. He also stated that, on the next morning at about 5 A.M., he saw the dead body of the deceased with bleeding injuries, lying in the house of the appellant. Of course, CW2 did not support the evidence of PW3 regarding the information given by him. The evidence of CW1, that he had seen the appellant giving a blow on the head of the deceased with a firewood and that the appellant and Shri Anant Ram Ganju had taken the deceased into the house and kept the same therein, after closing the door, remained undemolished. The said evidence coupled with the fact that the dead body of the deceased was found in the house of the appellant, in the injured condition, sufficiently indicates that the deceased was assaulted causing his death. The circumstantial evidence that the appellant had left the house, leaving the deceased therein, forcefully indicates the involvement of the appellant. That apart, the appellant, taking the plea of private defence, has admitted that he had assaulted the deceased. In his confessional statement, recorded by the learned Judicial Magistrate (PW7), which remained uncontroverted, the present appellant clearly stated that, on the night of occurrence, as the deceased had approached his wife with ill motive, out of anger, he had kicked the deceased and came to know that he had died. 12. Carefully perusing the confessional statement (Exhibit 7) aforesaid, it is found that the learned Judicial Magistrate recorded the same, complying with the due procedure. In his statement, made under section 313 Cr. P.C. also, the appellant admitted that he had voluntarily made the confession aforesaid. From the said confessional statement, it is found that the appellant had given one kick and the deceased died therein. In his statement, made under section 313 Cr. P.C. also, the appellant admitted that he had voluntarily made the confession aforesaid. From the said confessional statement, it is found that the appellant had given one kick and the deceased died therein. However, in his evidence, given as DW1, the appellant took a different stand. In his evidence aforesaid, the appellant stated that, on the night of the occurrence, the deceased, who made an attempt to commit immoral act on his wife, tried to cause injury to him with a knife and that he (appellant) had left the house, after throwing of stool or something like that at the deceased. The said contradictory stand, taken by the appellant, belies his plea that he had acted in exercise of his private defence. From the above statements, made by the appellants, it is found that the appellant had assaulted the deceased, on the ground that he had approached the wife of the appellant with ill-motive. Now the question is as to whether the deceased had approached the wife of the appellant with any ill-motive and if the appellant was prompted or provoked to assault the deceased. To establish the plea that the deceased had approached the wife of the appellant with ill-motive, the wife of the appellant was the best person to testify. But for reasons, best known to him, the appellant failed to examine his wife in support of his said plea. Non-examination of such vital witness was fatal for the defence version. Therefore, we find no corroboration or substance in the plea of the appellant that he had acted in exercise of right of private defence. This plea of the defence stood negated by the forceful evidence aforesaid given by CW1. 13. The Medical Officer (PW5), who conducted the Post Mortem examination, on 4/ 8/2002 i.e. on the next date of the incident, found the following injuries in respect of the dead body of the deceased:- (1) An incised wound over the middle forehead measuring 3x1 cm. (2) An incised wound over the outer canthus of the left eye measuring 2x1 cm. (3) An incised wound over the left lateral region measuring 2x1 cm. (4) An incised wound over the mandible on the left side measuring 3x1 cm. (5) Fracture of middle third of the left tibia and fibula. (6) An abrasion over the right shoulder measuring 2x1 cm. (3) An incised wound over the left lateral region measuring 2x1 cm. (4) An incised wound over the mandible on the left side measuring 3x1 cm. (5) Fracture of middle third of the left tibia and fibula. (6) An abrasion over the right shoulder measuring 2x1 cm. (7) An abrasion over the middle of the enterior chest wall measuring 4x1 cm. (8) An abrasion over the back of the right knee measuring 4x1.5 cm. (9) An Abrasion over the entire aspect of the left shoulder measuring 2x1 cm. (10) An abrasion in the right upper chest measuring 1x0.5 cm. The Medical Officer opined that death of the deceased occurred due to coma, as a result of the injury on the head. He also opined that the injuries were antemortem, caused by heavy sharp cutting weapon and impact of blunt force and homicidal in nature. He exhibited the post mortem report as Exhibit No. 4. Considering the medical evidence, it is found that the injuries were caused by sharp cutting weapon as well as blunt force and out often injuries, sustained by the appellant, the injuries No. 1, 2, 3 and 4 were incised injuries. The injury No. 5 relates to the fracture of the bones. 14. The number and the nature of the said multiple injuries, sustained by the deceased, negates the defence plea that the appellant had given only one kick or thrown a stool at the deceased. The said injuries clearly suggest that the deceased was repeatedly assaulted, with sharp cutting and blunt weapon. The said injuries sustained by the deceased lend support in favour of the evidence, rendered by CW1, that the appellant, after giving a blow on the head of the deceased, with a firewood, had taken him inside the house and assaulted therein. The fact that the deceased died inside the house of the appellant sufficiently indicates that the deceased, was repeatedly assaulted, inside the house, till his death. The gravity and the number of the injuries aforesaid coupled with the evidence aforesaid given by CW1, conclusively lead to believe that the appellant had assaulted the deceased with an intention to cause his death or with the intention of inflicting the injuries, which were likely to cause the death. The gravity and the number of the injuries aforesaid coupled with the evidence aforesaid given by CW1, conclusively lead to believe that the appellant had assaulted the deceased with an intention to cause his death or with the intention of inflicting the injuries, which were likely to cause the death. The said facts and circumstances, as revealed from the evidence on record, do not indicate that the appellant was either provoked or compelled to commit the said act. The act committed by the appellant does not fall under any of the exceptions, prescribed by section 300 IPC. 15. In view of what has been discussed above, we have no hesitation in holding that the appellant, along with others, in furtherance of their intention of causing death of the deceased, had confined and assaulted him, as a result of which the deceased succumbed to the injuries. Therefore, in our considered opinion, the learned Trial Judge rightly convicted and sentenced the appellant under sections 342/302 read with section 34 of the IPC. We find no merit in the appeal requiring interference with the impugned conviction and sentence. Accordingly, the appeal is dismissed. 16. In appreciation of the assistance rendered by Ms. N. Mitra, learned Amicus Curiae, we direct that an amount of Rs. 5,000/- be paid to her by the Assam State Legal Services Authority, as her remuneration. 17. 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 I.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 Tinsukia 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 dependent(s) or legal representative(s) 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, arrive 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. Let a copy of this judgment and order be furnished to the Chief Secretary to the Government of Assam, for doing the needful. 18. With the above observations, directions and modifications, the appeal is disposed of. Return the Lower Court's records.