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2012 DIGILAW 433 (GAU)

Mohendra Phukan v. State of Assam

2012-04-03

A.C.UPADHYAY, ADARSH KUMAR GOEL

body2012
JUDGMENT A.C. Upadhyay, J. 1. Present appeal is directed against the judgment and order dated 29.12.2004 rendered by the learned Addl. Sessions Judge (Ad-hoc), Sivsagar, in Sessions Case No. 58(S-C)/2003, whereby the appellant was convicted under Sections 447/302 IPC and sentenced to imprisonment for life and to pay fine of Rs. 5000/-, in default, to undergo rigorous imprisonment for 6 months, for commission of offence under Section 302 IPC, and also to pay fine of Rs. 500/-, for the offence under Section 447 IPC and, in default, to undergo simple imprisonment for 15 days. Facts leading to filing this appeal, by the accused/appellant, may be stated in brief, as follows : On 2.8.2011, Sri Mukti Nath Phukan, lodged an ejahar at Moranhat Police Station stating that in the morning of 1.8.2011 at about 5.30 AM, while his son Naba Phukan was ploughing over their paddy field, the accused persons namely, 1) Mohendra Phukan, 2) Poresh Phukan and 3) Jintu Phukan, with common intention criminally trespassed into the paddy field of the informant and voluntarily caused grievous hurt to Naba Phukan on his head by means of blunt edge of the spade. The injured Naba Phukan, was immediately rushed to the Aditya Nursing Home, Dibrugarh, for treatment of his injuries. 2. On receipt of the Ejahar, police registered a case under Section 341/325/34 IPC against the accused persons and launched investigation. The injured Naba Phukan, succumbed to his injuries on 5.8.2001 while undergoing treatment of his injury in the hospital. Police sent the dead body, for postmortem examination. After completing the investigation, the Investigating Police Officer police submitted charge-sheet against the accused-appellant under Section 447/302/34 IPC as well as against accused Paresh Phukan. 3. The learned trial Judge, having considered the materials on record and upon hearing the learned counsel for both parties, framed formal charges against the accused/appellant under Section 302/447/34 IPC, together with other accused facing the trial. On reading over and explaining the charges, the accused/appellant pleaded not guilty and claimed to be tried. 4. Prosecution examined as many as 11 witnesses to establish the charges against the accused/appellant. All the witnesses were cross-examined by the defence counsel. On conclusion of the evidence, the learned trial Judge recorded the statement of the accused under Section 313 Cr.P.C. 5. 4. Prosecution examined as many as 11 witnesses to establish the charges against the accused/appellant. All the witnesses were cross-examined by the defence counsel. On conclusion of the evidence, the learned trial Judge recorded the statement of the accused under Section 313 Cr.P.C. 5. The accused/appellant in his statement under Section 313 Cr.P.C admitted the occurrence and has stated that the injuries on the person of the deceased were caused by him. The accused/appellant further stated that the occurrence took place since Naba (deceased) had damagged and spoiled the paddy plantation by raising Ali (boundary) in the paddy field. According to the accused/appellant the deceased came by taking a spade in his hand, while he was repairing the Ali by hand. When the accused/appellant asked Naba, as to why he was destroying the plantation, at that moment, Naba raised the spade aiming towards the accused/appellant and knocked on the tooth of the accused/appellant. As a result of the assault, one of tooth of the accused was allegedly broken. The accused/appellant stated to have held the spade by one hand and assaulted the deceased by the other hand. The accused/appellant also admitted that his first stroke fell on the head of the deceased, while the second one hit his chest and eyes. After the incident the accused/appellant admitted to have left the place of occurrence. The accused did not come forward to adduce evidence in defence. 6. On conclusion of the hearing, learned Sessions Judge, convicted the accused/appellant under Section 447/302 IPC and sentenced him as aforesaid, which gave rise to this appeal. However, co-accused Sri Paresh Phukan @ Kon, facing the trial was acquitted of the charges and set at liberty by the learned trial Judge. 7. Mr. K.P. Sharma, learned senior counsel for the appellant submits that the death of the deceased and the incident is not denied by the appellant, but the accused/appellant had to assault the deceased, in exercise of his right to private defence. 8. Learned senior counsel further pointed that all the witnesses examined by the prosecution were relatives and no independent witnesses were examined by the prosecution to establish the charge against the accused/appellant. 9. In reply to the above submission, learned Addl. PP submits that if the accused had exercised his right of private defence there ought to have been some injury on the person of the accused. 9. In reply to the above submission, learned Addl. PP submits that if the accused had exercised his right of private defence there ought to have been some injury on the person of the accused. However, though the accused stated to have sustained injuries on his tooth, but no medical evidence was adduced by the defence to prove such facts. On the top of it, the land in which the occurrence took place belongs to the deceased. Learned Addl. PP also pointed out that the deceased was ploughing in his own land and as such he was not an aggressor in the incident. Admittedly, the accused, who disliked the working of the deceased, jumped on him with deadly weapons and brutally attacked him. As a consequence of which the deceased died. 10. Learned counsel for the appellant by drawing attention of the Court to the sketch map, prepared by the I/O during investigation, submitted that the dead body of the deceased was found outside the boundary of the land belonging to the deceased. Therefore, the ingredients of offence u/s 447 IPC are not available against the accused/appellant. 11. In order to appreciate the arguments advanced by the learned counsel for the appellant as well as the learned Addl. P.P., it would be apposite to extract hereinbelow the core of the prosecution evidence vis-a-vis the defence stand. 12. PW2, Hari Prasad Phukan, is the solitary eye witness to the occurrence. He is a near relative of both the accused as well as the deceased. In his testimony, PW2 categorically stated that in the morning on the day of occurrence at about 5.30 AM, while he was ploughing in his own paddy land, the deceased Naba and others were present in their respective paddy fields. According to PW2, all of a sudden, he saw Naba lying down in his paddy field and accused/appellant was assaulting him. PW2 witnessed the occurrence from a distance of about 10-12 Nals. According to PW2, after having assaulted the victim, the accused immediately fled away from the place of occurrence, leaving the injured at the place of incident. PW2 immediately rushed to the residence of Mukti Phukan, the parental uncle of the victim and narrated the incident. Immediately after which the injured victim was shifted to a local hospital, for treatment of his injuries. PW2 immediately rushed to the residence of Mukti Phukan, the parental uncle of the victim and narrated the incident. Immediately after which the injured victim was shifted to a local hospital, for treatment of his injuries. Though the defence thoroughly cross examined PW2, but nothing could be elicited in his testimony, in favour of the defence. From the evidence of PW-2, it is abundantly clear that the accused had assaulted the deceased while he was ploughing in his own paddy field. There is no apparent reason to discern the forthright testimony of PW.2, who categorically stated that he had seen the deceased lying on his own paddy field. Therefore, the point raised by the learned senior counsel regarding absence of ingredients of criminal trespass is not sustainable. 13. PW.3, Dalimi Phukan, the mother of the deceased Naba, deposed that in the morning on the day of occurrence at about 5-00 AM, her son had gone to plough their paddy filed. After sometime thereafter, PW-3 was informed by her husband Mukti Phukan (PW.1) about the killing of her son, in the paddy filed. She further deposed that Naba was immediately shifted to Dibrugarh hospital for treatment, wherein he succumbed to his injuries after 4 days of the incident. In cross, PW.3 denied to have stated in her statement recorded under Section 161 CrPC before the I/O that off and on, quarrels used to take place in between the family members of the accused persons and Naba Phukan regarding the boundary of the paddy filed. 14. Though PW.4, Nagen Baruah, was declared hostile by the prosecution, however, PW.4 affirmed in his deposition that the police had seized a spade from the house of the accused. PW.6, Joy Kanta Phukan, the younger brother of the deceased, deposed that in the morning of the day of occurrence, at about 5-30 AM, PW2, informed his father (PW.1) that Naba Phukan has been lying down in the paddy filed having been injured on his head by the accused, by means of blunt edge of spade. Knowing about the occurrence, PW.6 rushed to the place of occurrence and found Naba lying down in the paddy field sustaining injury on his head and blood was oozing out from the wound. Knowing about the occurrence, PW.6 rushed to the place of occurrence and found Naba lying down in the paddy field sustaining injury on his head and blood was oozing out from the wound. PW.6 also deposed that the injured Naba was immediately shifted to hospital for treatment of his injuries, where he succumbed to his injuries after 4 days of the occurrence. PW.6 also deposed that police prepared the inquest of the dead body of the deceased and report marked as Exht.3. PW.6 also disclosed in his deposition that Naba was lying down in injured condition in their paddy field at a distance of about 4 feet away from the boundary line. 15. PW.8, Smt. Arati Baruah, is the scribe of the cjahar marked as Exht. 1. According to PW.8, she drew up the ejahar as told by PW.1.PW.11, Dr. Bhushan Ch. Roy, the medical officer in his deposition proved the post mortem report of the deceased. PW.11 found the following injuries on the person of the deceased : 1. External appearance: Swarthy complexion, average built male dead body. Body warm on touch. Rigor mortis developed all over the body, but not fully established. Post mortem hypostasis present on the back of the body and not fixed. Injuries : 1. One stitched wound (closed by 15 nos. of stitches) 8cm x 0.2 cm x scalp layers deep, on left temporal region from above downwards, 2 cam anterior to left ear lobule. The wound is incised (Hospital made). 2. Another stitched wound 3 cam x 0.2 cam x scalp layers deep on left occipital region (closed by 5 nos. of stitches). The wound is incised and it is hospital made. 3. One linear abrasion 5 cm x 0.2 cm from above downwards present on left forehead. 4. Same type of another 2 abrasions, 3 cm x 0.2 cm, 2cm x 0.1 cm present on left forehead. 5. One abrasion 1 cm x 0.3cm on anterior aspect of right wrist joint. 6. One abrasion 3 cm x 1 cm present on left lateral aspect of chest wall. 7. One abrasion 2 cm x 1 cm present on left side of occipital region of scalp. 2. Cranium and spinal canal : Skull : one tissue fracture, L. Pattern present on left parietal bone. One bar-hole operation wound 2.5 cm 2.5 cm present on left temporal bone extending to the underlying membrane. 7. One abrasion 2 cm x 1 cm present on left side of occipital region of scalp. 2. Cranium and spinal canal : Skull : one tissue fracture, L. Pattern present on left parietal bone. One bar-hole operation wound 2.5 cm 2.5 cm present on left temporal bone extending to the underlying membrane. This bar hold wound is surgical and hospital made. The membranes are congested. Extra dural haematomae present in the left parietal temporal region. Brain: Left temporal lobe of the brain is lacerated. Contusion present on both temporal and both parietal lobes at places. The brain is congested. Opinion: In my opinion, the cause of death of the deceased is due to coma as a result of the injuries sustained by the deceased on his head. All the injuries are ante mortem. The injury nos. 1, 2 and bar hole operation of skull are surgical wound. All other injuries described are caused by blunt force impact and homicidal in nature. Time of death since 4 to 6 hours. Ext.6 is my report and Ext.6(1) is my signature. The injuries sustained by the deceased may be caused by blunt weapon like the spade, marked as M. Ext. 1. The injury sustained by the deceased on his head is sufficient to cause the death of a person in the ordinary course of nature. 16. While considering the plea of the private defence raised by the accused, it is of enormous importance to note that it is the burden of the defence to establish the plea. Of course, it is not as onerous as that of the prosecution. In Md. Ramjani Vs. State of Delhi : AIR 1980 SC 1341 , the Supreme Court held that 'the onus, which rests on an accused person under Section 105 of evidence Act to establish its plea of private defence is not as onerous as the un-shifting burden, which lies on the prosecution to establish every ingredient of the offence with which the accused is charged beyond reasonable doubt. A person faced with imminent peril of life and limb of himself or another is not expected to weigh in golden scales the precise force needed to repel the danger. A person faced with imminent peril of life and limb of himself or another is not expected to weigh in golden scales the precise force needed to repel the danger. Even if, he at the heat of the moment carried his defence little further than what would be necessary, when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it". In Charan Singh Vs. State of Punjab, 1979 SCC (Criminal Jurisprudence 989), it has been held that once there is a probability of the accused having acted in self defence, the same is sufficient to entitle him to acquittal. 17. In the present case, the accused-appellant examined himself under Section 313 CrPC and he deposed that the deceased came by taking a spade in his hand while he was repairing the Ali with his hand. When the accused/appellant asked Naba as to why he was destroying the plantation, at that moment, Naba raised the spade aiming toward the accused/appellant and knocked on the tooth of the accused/appellant. As a result of the assault, one tooth of the accused was broken. The accused/appellant stated to have held the spade by one hand and assaulted the deceased on the other hand. The accused/appellant also admitted that his first stroke fell on the head of the deceased while the second one hit his chest and eyes. After that the accused/appellant left the place of occurrence. 18. However, the evidence of eye witnesses to the occurrence, clearly spelt out that the accused appellant had assaulted the deceased, while the later was ploughing in the field. The accused, admitted as to how the victims aforementioned had sustained injuries. Apparently the appellant was the aggressor. Moreso, the accused was not satisfied in the way the boundary Ali was laid by the deceased. Therefore, when a violent attack was made by the accused upon the diseased, he must have tried to save himself in vain. Had there been some attack or resistance by the deceased, the accused would have sustained at least some injury on his person. No injury, whatsoever was sustained by the accused, There is absolutely no evidence on record to show that the deceased had ever attacked the accused-appellant. The eye witness did not support the defence version. Had there been some attack or resistance by the deceased, the accused would have sustained at least some injury on his person. No injury, whatsoever was sustained by the accused, There is absolutely no evidence on record to show that the deceased had ever attacked the accused-appellant. The eye witness did not support the defence version. On the contrary, PWs 2 and 3, who are all close relations of the accused-appellant, have deposed that it was the accused, who was the aggressor. Moreover, the deceased was unarmed. There is not even an iota of evidence on record to show that the said deceased ever trespassed carrying arms with him. On the contrary the accused-appellant came to the place of occurrence fully armed. The learned trial Court, therefore, correctly held that no right of private defence accrued to the accused-appellant to kill him instantly in the paddy field. 19. That the nature of injuries on the deceased clearly shows that there could be no question of. a plea of private defence. The accused had come to teach the deceased a lesson, for having raised dispute in respect of land. The manner of the assault, the consequence of which caused the death of the deceased, in our opinion, cannot give rise to a justification, for pleading a right of private defence. Moreover, Exception (ii) of Section 300 clearly enjoins that there cannot be any question of exceeding the right of private defence where the accused causes more harm than it is necessary, for the purpose of his defence. 20. The clear evidence in the instant case is that even after victim had fallen down on the ground and was rendered harmless and thus not in a position to offer any resistance, the accused continued to assault him until he had inflicted fatal injuries. In these circumstances, therefore, the plea of the right of private defence could not be accepted for a moment". (See Hari Meghji Vs. State of Gujarat : AIR 1983 SC 488 ). 21. Undoubtedly, injury had been caused on the vital part of the body of the deceased, but it must also be borne in mind that when a person loses his sense he may act violently and that by itself may not be a ground to be considered against him, while determining the nature of the offence. 21. Undoubtedly, injury had been caused on the vital part of the body of the deceased, but it must also be borne in mind that when a person loses his sense he may act violently and that by itself may not be a ground to be considered against him, while determining the nature of the offence. Each case is to be considered on its own facts, however, taking a all-inclusive view of the matter. In such a case, the entire attending circumstances must be taken into consideration in order to find out the nature of the actual offence committed. 22. In State, Pulicherla Nagaraju @ Nagaraja Reddy Vs. State of A.P. : AIR 2006 SC 3010 , the Apex Court culled out some circumstances to decide the pivotal question of intention to cause death, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 -Part II. The relevant extract of the observation reads as follows : Many petty or insignificant matters-plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation, in fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/ II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/ II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. The Apex Court has re-iterated the same view in Sridhar Bhuyan Vs. State of Orissa : AIR 2004 SC 4100 ; and Gali Venkataiah Vs. State of Andhra Pradesh : AIR 2008 SC 462 . 23. The Apex Court has re-iterated the same view in Sridhar Bhuyan Vs. State of Orissa : AIR 2004 SC 4100 ; and Gali Venkataiah Vs. State of Andhra Pradesh : AIR 2008 SC 462 . 23. In the present case- (i) nature of the weapon used was a dao, which is a conventional weapon of assault; (ii) the weapon was carried by the accused, not picked up from the spot; (iii) the blows were aimed at important part of the body; (iv) the amount of force employed in causing injury was ruthless; (v) the act was not in the course of sudden quarrel and sudden fight (vi) the incident occurred with premeditation, since the accused disliked placing of ali by the deceased; (vii) admittedly there was prior enmity and the occurrence, as per the statement of the accused and the witnesses; (ix) the accused inflicted 'dao' blows even after the deceased fell down on the ground (x) the accused dealt with several blows on the deceased. Several injuries were caused on the vital part of the body of the deceased. In such a case, the entire attending circumstances must be taken into consideration in order to find out the nature of the actual offence committed. Thus it can be safely concluded that the accused committed the offence which is punishable under Section 302 IPC. We could not discover any ground to interfere with the findings of the learned Sessions Judge. 24. In view of the above discussion, we do not find merit in the appeal. Accordingly, the appeal stands dismissed. Send back the LCR forthwith. Appeal dismissed.