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2012 DIGILAW 742 (GAU)

Bhatka Karmakar @ Nagen v. State of Assam

2012-06-14

ADARSH KUMAR GOEL, N.KOTISWAR SINGH

body2012
JUDGMENT N. Kotiswar Singh, J. 1. The present appeal has been preferred against the judgment and order dated 21.2.2007 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 56(J-J)2006 by which the present appellant was convicted u/s 302 IPC and sentenced to undergo Life Imprisonment with a fine Rs. 1,000/- and in default, Rigorous Imprisonment for 1(one) month. For the purpose of consideration of the present appeal, we may briefly refer to certain basic facts. 2. On 20.11. 2005 the wife of the deceased lodged an FIR with the Lahdoigarh Police Outpost stating that on 19.11.2005 at about 7 pm, her husband, Deben Kalandi, was assaulted on his head and leg by two persons namely, Bhatka Karmakar alias Nagen and Thepa alias Bikas with an axe and a sharp knife. Even though the injured person was rushed to the Jorhat Civil Hospital, he succumbed to his injuries the next day. 3. After completion of the investigation, the aforesaid two accused persons were charged with the murder of Deben Kalandi under section 302/34 IPC. 4. The learned Sessions Judge after hearing the parties and considering the evidence on record, convicted the present appellant under section 302 of IPC. However, the other co-accused namely, Thepa Karmakar alias Bikas was acquitted from the charge under section 302 of IPC. 5. As many as twelve witnesses were examined in favour of the prosecution including the first informant, a Medical Officer who conducted the post mortem, one Judicial Magistrate before whom the appellant made the confessional statement and the Investigating Officer. The accused took the plea of total denial but did not adduce any evidence in their defence. 6. Of the aforesaid witnesses, apart from the official witnesses, the learned Sessions Judge mainly relied on the evidence of the informant, who was the wife of the deceased and two other witnesses who are also stated to be eyewitnesses and related to the deceased and informant. The learned Sessions Judge also relied on the confessional statement made by the accused appellant for convicting the appellant. 7. We now briefly refer to the testimonies of the prosecution witnesses. 8. PW1 and PW2 are witnesses to the inquest report and not eyewitnesses. PW3 is a villager and not an eyewitness and hence he is also not a material witness. 7. We now briefly refer to the testimonies of the prosecution witnesses. 8. PW1 and PW2 are witnesses to the inquest report and not eyewitnesses. PW3 is a villager and not an eyewitness and hence he is also not a material witness. PW 4, the wife of the deceased and the informant stated that on the day of the incident, at around 7 pm while she was serving meal to her husband, the two accused persons came and they called out her husband whereupon he went out. Then she was serving meal to her son. When her son raised an alarm that her father was assaulted, she went outside. Soon thereafter she saw Thepa striking her husband on his legs with a sword and the appellant Bhatka with an axe. Her husband then fell down. Thereafter, both the accused who were brothers fled from the place. She further stated that her "nanad", Mridula (PW5) who was also at her house witnessed the said occurrence. It is to be noted that in her cross examination she stated that at the time of the occurrence there was darkness on the road. She also stated that due to darkness, she could not recognise who had assaulted her husband. PW 5, who was related to the deceased stated that at the time of occurrence, she was present at the house of the deceased and PW4. She stated that while she was talking inside the house of the PW 4 at around 7 p.m., the appellant Bhatka called out the deceased by addressing as "Debenda". After about five minutes of his going out, she heard the sounds of assault. When she went out, she saw both the accused. Thepa was holding a dao and Bhatka, an axe. She stated that PW 6 was also present nearby. When they started wailing, both the accused ran away. They then took the deceased to the hospital. When asked by the Court, she stated that at the time of occurrence when she had raised an alarm, the wife of the deceased had come there and no one else had come there. PW 6 is the niece of the deceased. She stated that on the day of occurrence she was in her house and Mridula (PW5) was with her. Both the accused were her neighbours. Her house is situated near the house of the deceased. PW 6 is the niece of the deceased. She stated that on the day of occurrence she was in her house and Mridula (PW5) was with her. Both the accused were her neighbours. Her house is situated near the house of the deceased. She stated that she heard the deceased calling the two accused away. She stated that PW No. 5 was sitting in her house. Going out, they (she and PW5) saw Thepa striking the deceased on his leg with the sword and the accused Bhatka on his head with an axe. When she tried to separate them, Bhatka pushed her because of which she fell down. She also stated that the parents of the two accused came and took them away. She also stated that when Bhatka's wife produced the axe and the knife she was present there. In the cross examination, she admitted that she did not tell the police as to who had assaulted the deceased and with what. PW 7 was the doctor who conducted the post-mortem on the dead body of the deceased. According to him, the deceased died due to coma as a result of head injury. PW 8, a co-villager and PW 9, a relative of the deceased, were also not eyewitnesses and hence not material witnesses. PW 10 was the scribe of the first information report. PW 11 was the Investigating Officer. He stated that on 19.11. 2005 at 7:35 pm the accused Bhatka appeared before the Laldoigarh police outpost and stated that he had left the deceased injured by hitting with an axe. Thereafter, the PW 11 made an entry for a UD case and entrusted ASI Bhupen Saikia with the charge of preliminary investigation. The accused was kept in the police outpost. He stated that the weapons of crime were recovered and seized by the said Bhupen Saikia from the house of the accused on being produced by the wife of the accused. When cross-examined with reference to the statement of PW 4, he stated that the PW 4 did not tell him when the accused persons had come and called out her husband and that he had gone outside. He also stated that PW 4 did not tell him that her "nanad" Mridula (PW 5) had been there at their house. When cross-examined with reference to the statement of PW 4, he stated that the PW 4 did not tell him when the accused persons had come and called out her husband and that he had gone outside. He also stated that PW 4 did not tell him that her "nanad" Mridula (PW 5) had been there at their house. With regard to the statement of PW 5, PW 11 stated that she did not tell him about the incident as narrated before the Court by her about the accused calling the deceased out by addressing as "Debenda", and also about hearing the sounds of assault, etc. As regards the statement of PW 6, he said that the PW 6 did not say who had assaulted the deceased and with what and about her being pushed by the appellant/accused etc. PW 12 is the Judicial Magistrate before whom the appellant accused was stated to have made his confessional statement. The other evidence relied upon by the trial court for conviction is the confessional statement stated to have been made by the appellant. The appellant who allegedly made the confession under Section 164 of Cr.P.C., however, in his statement before the Court under section 313 Cr.P.C., completely denied all the allegations made against him. He also denied that he went to the police station after the aforesaid incident and he also denied to have stated anything before the police. As regards the confessional statement which he had made before the Magistrate, he stated that the police had subjected him to physical excess and torture and he stated in the manner as taught by the police before the Magistrate out of fear of the police. 9. On perusal of the judgment, it is seen that the learned defence counsel had pointed out to contradictory evidences emerging from the eye witness accounts of PW 4, PW 5 and PW 6. It was pointed out that even though PW 4 had stated in detail about the assault on her husband by the two accused before the Court, no such details were given in her statement made under section 161 of the Cr.P.C. before the Investigating Officer. The other discrepancies which have been pointed out were that PW 4 had stated before the Court that PW 5, Mridula was present in her house at the time of occurrence. The other discrepancies which have been pointed out were that PW 4 had stated before the Court that PW 5, Mridula was present in her house at the time of occurrence. However, PW 6 had stated that PW 5 was with her in her house. Therefore, she could not be at the house of the PW4 as stated by PW4. The defence counsel also pointed out that PW 6 had stated before the Court that PW 5 and PW 6 had come out of the house of PW 6 to the place of occurrence to see the deceased being assaulted by the accused. PW 6 also stated before the Court that she heard both the accused calling out the deceased from his house before the said occurrence. The defence pointed out that, however, none of the above statements which were made before the court, was made by PW 6 in her statement under section 161 Cr.P.C. These discrepancies according to the defence were sufficient to discredit the evidence of PW 4, PW5 and PW6 who were also relatives. The learned Sessions Judge observed that even if there appeared to have been some merit in the argument of the defence lawyer and even if the evidences of PW 5 and PW 6 were not taken into consideration as reliable testimony in favour of the prosecution, the evidence of PW 4 could not be ignored as she had corroborated the FIR about the assault of her husband by the said two accused persons. Thus, even though the Ld. Sessions Judge had also some doubts about the veracity of the statements of PW 5 and 6 made before the Court, the learned Court however considered the statement of PW 4 reliable for the reason that her statement made before the Court corroborated the contents of the FIR about the assault of the deceased by the accused persons. 10. The learned Sessions Judge seems to have relied also on the confessional statement made by the appellant accused before the Judicial Magistrate (PW 12) to fasten the guilt upon the appellant, which according to the learned Session Judge was proved by PW 12. In his confessional statement, the appellant/accused had stated that on the relevant day at about 4 pm, the deceased entered the house of the appellant/accused and pushed and pulled his pregnant wife with an evil intention, whereupon she raised alarms. In his confessional statement, the appellant/accused had stated that on the relevant day at about 4 pm, the deceased entered the house of the appellant/accused and pushed and pulled his pregnant wife with an evil intention, whereupon she raised alarms. At that time the appellant was coming from the jungle after cutting fire woods who could hear his wife raising alarms and he saw the deceased running away from his house. The appellant then hurled that axe which was in his hand at the deceased which hit his head, because of which the deceased fell down and the accused assaulted the deceased at his lying condition by his axe on his head and stomach. Thereafter, the appellant left and later on surrendered before the police. The Learned Sessions Judge observed that the Magistrate (PW12) before whom the confessional statement was made was not cross-examined and accordingly, was of the view that it could not be said that the accused did not confess voluntarily and accordingly, held that his confessional statement as a whole stands proved, even though he had explained while giving his statement under section 313 of Cr.P.C. that he was assaulted and tortured by the police and that he had made the confession out of fear of the police. The learned Sessions Judge also observed that no such version was taken for the accused in course of the cross-examination of the relevant witnesses namely, the PW 4, PW 5 and PW 6 and others and held that such a plea of defence is not sustainable and not believable. The learned Sessions Judge also noted that the appellant accused had appeared before the Investigating Officer at the police outpost immediately after committing the said occurrence and he himself had narrated about the incident which is proved by the statement of the Investigating Officer (PW 11) and the fact of surrender and confession by the accused before the learned Magistrate (P.W No. 12) has been also proved. As regards the seizure of the weapons of the crime, the learned Sessions Judge observed that even though there was no witness supporting the seizure, the availability of such articles in the house of every ordinary people like that of the accused could not be ruled out. As regards the seizure of the weapons of the crime, the learned Sessions Judge observed that even though there was no witness supporting the seizure, the availability of such articles in the house of every ordinary people like that of the accused could not be ruled out. The learned Session Judge accordingly, held the confession of the accused appellant to be a voluntary one and also reliable enough to be acted upon coupled with other evidences available from the evidence of PW 4 with reference to the FIR. The learned Session Judge also held that there is no iota of evidence that the accused appellant had fatally injured the victim on being provoked and prompted him to act violently to the deceased due to the alleged activities of the deceased directed towards the pregnant wife of the accused at his house at about 4 pm on the fateful day. Accordingly, the learned Sessions Judge held that the accused appellant intentionally caused the death of the deceased, Deben Kalandi by cutting him with an axe which is proved by the evidences on record of the P.W. No. 4 and the confessional statement and other witnesses including the medical evidence and accordingly, held him guilty of murdering Deben Kalandi and punishable under section 302 of the IPC. However, as regards the other co-accused namely, Thepa Karmakar alias Bikash, the learned Sessions Judge held that there is no such evidence to hold him guilty under Section 302 IPC or otherwise in this case because of which he was acquitted. 11. From the above, it is seen that the learned Sessions Judge convicted the appellant accused mainly on the evidence of PW 4, the wife of the deceased and the confessional statement made by the appellant before the Magistrate. The Learned Sessions Judge seems to have found the testimonies of PW 5 and PW 6 doubtful because of which the Court did not give much reliance on their testimonies. We, also having considered the record, agree that the testimonies of PW 5 and PW 6 are not consistent which throws some doubt on the veracity. However, if we discount their evidence, it leaves the testimony of PW 4 and the confessional statement of the appellant on which the learned Sessions Judge relied upon for convicting the appellant. We, also having considered the record, agree that the testimonies of PW 5 and PW 6 are not consistent which throws some doubt on the veracity. However, if we discount their evidence, it leaves the testimony of PW 4 and the confessional statement of the appellant on which the learned Sessions Judge relied upon for convicting the appellant. As observed earlier, in the cross-examination of the PW 4, she had stated that at the time of the occurrence there was darkness on the road. She also stated that due to darkness, she could not recognise who had assaulted her husband. If that is so, how can it be said with certainty that it was the appellant accused who murdered her husband' This assumes significance in view of the fact that all the witnesses, i.e., PW4, PW5, PW6 had been consistently telling that not only the appellant accused but the other co-accused was also present at the time of the assault. If the learned Sessions had acquitted the other co-accused on the ground that there is not enough evidence, we fail to understand as to how the appellant accused could be convicted on the same evidence, except for the confessional statement of the appellant accused. Therefore, we also find that the testimony of the PW4 may not be reliable for convicting the appellant. That leaves us to the other remaining evidence, i.e., the confessional statement made by the appellant under section 164 Cr.P.C. 12. We have also noted that the Magistrate (PW 12) before whom the appellant made the confession was examined in the Court and he has explained how the appellant had made the confession. The appellant declined to cross-examine the said witness PW 12. Therefore, the evidence of PW 12 remains unshaken. Therefore, the evidence of PW 12 remains unshaken. Having considered the records, this Court is also of the opinion that the confessional statement made by the appellant does not suffer from any serious lapse so as to render it unreliable. Nothing has been suggested or shown to impeach the voluntary nature of the confessional statement of the appellant. 13. Now, coming to the confessional statement of the appellant, which the learned Trial Court held to have been proved, with which finding we also concur for the reasons discussed hereinafter. What we find is that the deceased was attempting to outrage the modesty of the appellant's wife. 13. Now, coming to the confessional statement of the appellant, which the learned Trial Court held to have been proved, with which finding we also concur for the reasons discussed hereinafter. What we find is that the deceased was attempting to outrage the modesty of the appellant's wife. At that time, the appellant was returning home after cutting firewood with an axe. When the appellant heard the scream of his wife and saw the appellant running out of his house, out of rage he threw the axe which he was carrying hitting his head. The appellant then hacked him on his belly and head with the axe. Thereafter, he surrendered before the police. From the aforesaid confessional statement, what clearly emerges is that there was a sudden and grave provocation at the instance of the deceased who attempted to molest the wife of the appellant. It would not be unnatural for a husband to loose self control and react in such a violent manner if anybody makes an attempt to molest and outrage the modesty of his wife and as such we are of the opinion that the assault by the appellant on the deceased was due to sudden and grave provocation caused by the deceased. The facts and circumstances do not reveal that the appellant had any premeditation or plan to kill the deceased. The killing happened at the spur of moment in a grave fit of rage being provoked by the outrageous act of the deceased towards the wife of the appellant. The appellant was not carrying the axe with a premeditated plan to kill the deceased. He was already carrying it on his return from the jungle cutting fire wood. He lay his hands on the nearest available weapon to assault the deceased on being provoked by the ill intentioned acts of the deceased. It was not the case that he fetched the axe. Therefore, it was not a planned assault. 15. Exception 1 to Section 300 of IPC reads as follows:- Section 300. Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly-............................... Thirdly...................................... Fourthly................................... Illustrations ......................................... ................................. Therefore, it was not a planned assault. 15. Exception 1 to Section 300 of IPC reads as follows:- Section 300. Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly-............................... Thirdly...................................... Fourthly................................... Illustrations ......................................... ................................. Exception 1.-When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:- First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. From the evidence, it is seen that the appellant lost power of self control angered by the outrageous act of the deceased towards his wife, which provided the sudden and grave provocation to the appellant to act in the manner described above. The said provocative act was not sought or voluntarily provoked by the appellant, the provocation was caused by the unlawful act of the deceased towards his wife which was not done in obedience to law or in lawful exercise of private defence. Thus, considering the entire facts and circumstances as revealed, we are of the view that the act of the appellant in causing the death of the deceased would come under the purview of Exception 1 to Section 300 IPC We have already held that the appellant had acted under grave and sudden provocation and there was no intention to kill or causing death of the deceased and accordingly, convert the conviction of the appellant under second part of section 304 IPC by setting aside the conviction under section 302 IPC. It is seen from the records that the appellant is undergoing imprisonment since conviction on 21.02.2007 and prior to that he was also under judicial custody as an undertrial during the investigation. In view of the above, we direct that the period of sentence for the purpose of sentencing under second part of section 304 IPC will be reduced to the period of imprisonment already undergone by the appellant. In view of the observations and discussions as stated above, we set aside the impugned judgment and order dated 21.2.2007 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 56(J-J)2006 convicting the appellant under section 302 IPC and converting the conviction of the appellant under second part of section 304 IPC and the appellant/accused will be set at liberty immediately unless he is not required to be detained in connection with any other case.