Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 78 (GAU)

Binod Karmakar v. State of Assam

2012-01-20

ADARSH KUMAR GOEL, C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order dated 28.2.2005 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 51(JJ) of 2004. By the impugned judgment and order, the learned Sessions Judge convicted and sentenced the appellant for the offence under Section 302 of the Indian Penal Code, (hereinafter referred to as 'IPC') and sentenced him to suffer life imprisonment and pay fine of Rs. 1000/-, in default, suffer rigorous imprisonment for another period of six months. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this appeal from jail. We have heard Mrs. Anupama Devi, learned amicus curiae, appearing for the appellant and Mr. D. Das, learned Addl. Public Prosecutor, appearing for the State respondent. 2. The prosecution case, in brief, may be stated as follows:- On 8.12.2003 at about 10 A.M. at a tea estate, called Meleng tea estate, under Teok police station, a quarrel had taken place between the appellant and his brother, namely, Manik Karmakar (since acquitted) on one hand, and Sri Bali Nayak (hereinafter referred to as deceased), aged about 66 years, on the other hand. In the said occurrence, the appellant hit the deceased with a lathi and thereafter inflicted dao blows on his neck, thereby causing the death of the deceased. Sri Jatin Nayak (aged about 22 years) son of the deceased, who deposed as PW 1, coming to know about the occurrence from Smti. Minati Bhakta (PW 3), rushed to the place of the incident and found his father lying dead in the courtyard of Mamoni Bhakta (PW 4). Accordingly, PW 1, as informant, lodged an FIR with the police, which was registered as Teok PS Case No. 161/2003, under Sections 302/34, IPC. During the course of the investigation, the Investigating Officer (PW 9), got the inquest report (Ext. 2) prepared, forwarded the dead body for postmortem report and arrested the accused persons including the appellant. As the appellant was willing to make his confession, he was forwarded to the Court for recording his confession. The learned Judicial Magistrate (PW 8) recorded the confessional statement under Section 164, Cr. P.C. The police also prepared the sketch map of the place of occurrence and seized one 'Naga dao' i.e. the weapon of assault vide seizure list (Ext. A). The learned Judicial Magistrate (PW 8) recorded the confessional statement under Section 164, Cr. P.C. The police also prepared the sketch map of the place of occurrence and seized one 'Naga dao' i.e. the weapon of assault vide seizure list (Ext. A). At the close of the investigation, police submitted the charge-sheet under Section 302, IPC read with Section 34, IPC. The offence being exclusively triable by a Court of Session, the learned Chief Judicial Magistrate (Sadar), Jorhat committed the case to the Court of Sessions for trial. Accordingly, the learned Sessions Judge, Jorhat framed charges under Section 302 read with Section 34, IPC, against the appellant and his brother, namely, Manik Karmakar. The charges were explained and read over to the accused persons to which, they pleaded not guilty. They claimed to be tried. 3. In order to prove its case, the prosecution examined as many as nine witnesses including the Judicial Magistrate, (PW 8), who recorded the confessional statement of the appellant, the Medical Officer (PW 6), who performed the autopsy in respect of the dead body and the Investigating Police Officer (PW 9). At the close of the evidence for the prosecution, the accused persons were examined under Section 313 of the Code of Criminal Procedure, (hereinafter referred to as Cr. P.C.). Accused Manik Karmakar denied the allegations, brought against him. The appellant, in his statement given under Section 313, Cr. P.C. admitted that he caused the injuries leading to the death of the deceased by brandishing a dao in the air. He also admitted that he had made the confessional statement before the learned Magistrate that the weapon of assault i.e. 'Naga dao' was seized from him, on being produced by him. 4. The plea of the appellant was that, on the fateful day, the deceased, who was in a drunken condition, attempted to cut him with a dao, and while resisting, he had snatched away the dao from the hands of the deceased and thereafter brandished the same in the air, as a result of which, the dao hit the deceased causing injuries on his person. The appellant also stated that he, having no other alternative to protect himself, was compelled to brandish the dao in the air. In his confessional statement (Ext. The appellant also stated that he, having no other alternative to protect himself, was compelled to brandish the dao in the air. In his confessional statement (Ext. 4), the appellant stated that on the date of occurrence, while he was on his way to his place of work, the deceased, armed with a dao, intercepted and charged him for not giving the deceased money. According to the appellant, he, on being so charged, had given the deceased Rs. 4/-, one kg molasses and one handful of 'Bidi' purchased by him. However, according to the appellant, the deceased threatened that he would cut his leg and hit him with his hand. According to the appellant, the deceased made an attempt to inflict blow with the 'Naga dao' in his head and on being so intimidated, the appellant had snatched away the dao from the deceased. But as claimed by the appellant the deceased tried to pull out his trouser and also assaulted on his hand with a knife, he being unable to bear with the said torture, assaulted the deceased with a lathi and thereafter hacked his neck with the dao. Both the accused persons declined to adduce defence evidence. Though, there is no direct evidence regarding the involvement of the appellant, the learned Sessions Judge, relying on the confessional statement and the admission, made by the appellant, during his examination under Section 313, Cr. P.C. held the appellant guilty of offence under Section 302, IPC and accordingly convicted and sentenced him as indicated above. The other accused person, namely, Maink Karmakar, was acquitted for want of sufficient evidence. 5. Mrs. Anupama Devi, learned amicus curiae, taking us through the evidence on record, has submitted that there is no direct evidence against the appellant, except the confessional statement and the admission made, under Section 313, Cr. P.C. The learned counsel has also submitted as the conviction has been based on the basis of the confessional statement recorded under Section 313, Cr. P.C. It is submitted that if the entire confessional statement is believed, then the plea of the appellant that he inflicted the injuries, in exercise of his private defence to protect his life, cannot be negated. P.C. It is submitted that if the entire confessional statement is believed, then the plea of the appellant that he inflicted the injuries, in exercise of his private defence to protect his life, cannot be negated. Therefore, it has been submitted that, as the appellant had caused the assault, without any pre-meditation or intention to cause the death of the deceased, he is protected by the provision of Section 96 of Chapter IV of IPC. The learned amicus curiae has also submitted that the appellant, who has his old mother and minor son, used to earn as a wage labourer and as such, considering the facts and circumstances, he is entitled to be dealt with leniently. 6. In reply to the said argument, advanced by the learned amicus curiae, Mr. D Das, learned Addl. Public Prosecutor, has submitted that there is sufficient material to show that the accused person caused the death of the deceased by means of a sharp cutting object i.e., dao and that there was no sufficient reason to cause the death of the deceased, in exercise of right of private defence. It is submitted that the appellant exceeded his right and as such, he is not protected by the provision prescribed by Chapter IV of the Code. The learned Addl. Public Prosecutor has also submitted that the confessional statement coupled with the admission, made under Section 313, Cr. P.C. establishes beyond all reasonable doubt, that the appellant inflicted dao blows on the neck of the deceased, with a clear intention to cause his death and as such, the learned Sessions Judge committed no error by convicting and sentencing the appellant as aforesaid. 7. Having heard the learned counsel for both the parties, we have carefully perused the materials on record. Admittedly, there is no eye witness or direct evidence to the occurrence. There is no doubt that the deceased died on the fateful day due to injuries caused by the appellant. The Medical Officer (PW 6), who performed the autopsy on the dead body of the deceased, found the following injuries:- 1. One abrasion on right leg of 4 cm in depth. 2. One abrasion on right wrist. 2 cm in depth. 3. One cut injury on right parietal region of size 3 cm x 1/2 cm x 1/2 cm. 4. One cut injury in front of the neck cutting the trachea and the vessels. One abrasion on right leg of 4 cm in depth. 2. One abrasion on right wrist. 2 cm in depth. 3. One cut injury on right parietal region of size 3 cm x 1/2 cm x 1/2 cm. 4. One cut injury in front of the neck cutting the trachea and the vessels. The said Medical Officer opined that the injuries were ante-mortem in nature. The cause of death was asphyxia due to the injury sustained on the trachea. He exhibited the post-mortem report (Ext. 3) and his signature, thereon, as Ext. 3(1). The cross-examination of the said Medical Officer was declined by the defence. Therefore, the said medical evidence with regard to the injuries sustained and the cause of death of the deceased remained unchallenged. Hence, it is clear that the injury caused on the trachea (i.e. neck region) was the cause of the death of the deceased. 8. PW 1 i.e. the informant and PW 2, another independent witness stated that they saw the deceased lying dead with injury on his neck. PW 3 and PW 4 also supported the prosecution version regarding the death of the deceased. PWs. 2, 3 and 4 were declared hostile and cross-examined, on behalf of the prosecution. 9. From the cross-examination of PWs 2, 3 and 4 nothing incriminating could be brought out against the appellant. However, from the evidence of the said witnesses, it stood established that the deceased died in connection with the said incident. 10. Smti Mamoni Bhakta, who deposed as PW 4, stated that she had informed the informant (PW 1) i.e. son of the deceased. This witness was also declined hostile and was subjected to cross-examination. In her cross-examination, she denied the suggestions that she told the police that she saw the appellant and the deceased altercating on some issue at the gateway, that a lathi blow, being given by Sri Manik Karmakar i.e. the brother of the appellant, the deceased had fallen down and the appellant, after picking up the dao, which had fallen down from hand of the deceased, had inflicted injury on the neck of the deceased by drawing the same backward and pressed on the neck. She also stated that she was observing the incident from her house. 11. She also stated that she was observing the incident from her house. 11. According to the appellant, while he was proceeding towards his place of work, the deceased, being armed with a dao, intercepted him and tried to assault him. The statement of the appellant, made under Section 164, Cr. P.C. and the admission made under Section 313, Cr. P.C. indicate that the deceased, after intercepting the appellant, attempted to assault him with a dao and therefore, he, having no alternative to protect himself, had snatched away the dao and inflicted the blows. In absence of anything in contrary, the said statements/pleas, made by the appellant cannot be disbelieved. Therefore, taking the confessional statement, in its entirety and the statement, made under Section 313, Cr. P.C. there is no difficulty in understanding that the appellant had no pre-plan or pre-meditation i.e. intention to cause the death of the deceased. As the appellant was attacked by the deceased, there is reason to believe that he had snatched away the dao from the deceased and inflicted blows on the neck in a heat of passion upon a sudden quarrel. The said plea taken by the appellant, in the absence of any other contrary evidence cannot be disbelieved. Therefore, the same is found to be probable. 12. It is settled law that if there exits two views, the view which goes in favour of the accused is to be accepted. Therefore, we find it safe to accept the plea taken by the appellant. Now the question is whether the appellant was entitled to cause the said injuries, in exercise of right of self defence. 13. Section 96 of the I.P.C. provides that nothing is an offence if done in exercise of right of private defence. Section 97 of I.P.C. also provides that every person has a right, subject to the restriction prescribed by Section 99, to defend his body and properties against any miscreant. Of course, such right is not available to an aggressor. 14. As provided by Section 99 the right of private defence cannot extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Of course, such right is not available to an aggressor. 14. As provided by Section 99 the right of private defence cannot extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence. As prescribed by Section 99, the right of private defence is not available to a person in a circumstance where there exists no reasonable apprehension of death or of grievous hurt, if done or attempted to be done, by a public servant acting in good faith under colour to his office. This right is also not available to a person, in a circumstance, where there is time to take recourse to the protection of the public authorities. Admittedly, in the present case, the right of private defence has not been exercised against any public servant. There is nothing on record to show that the appellant had time or scope to approach any public authority for his protection. 15. Section 100 of the Penal Code, provides that the right of private defence, subject to the restriction prescribed by Section 99, Cr. P.C. would extend to the causing death or any other harm to the assailant, if the following circumstances exist: First--Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault. Secondly--Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. Thirdly--An assault with the intention of committing rape. Fourthly--An assault with the intention of gratifying unnatural lust. Fifthly--An assault with the intention of kidnapping or abducting. Sixthly--An assault with the intention of wrongfully confining a person, will be unable to have recourse to the public authorities for his release. In view of the above, it is clear that in exercising the right of private defence, to the extent of causing death, the accused must show that there were circumstances giving rise to reasonable grounds of apprehension of death or grievous hurt to be caused to him. 16. In view of the above, it is clear that in exercising the right of private defence, to the extent of causing death, the accused must show that there were circumstances giving rise to reasonable grounds of apprehension of death or grievous hurt to be caused to him. 16. In the case of Vishvas Aba Kurane v. State of Maharashtra, reported in 1978 Cri LJ 484 and in the case of Wassan Singh v. State of Punjab, 1996 Cri LJ 878, the Supreme Court observed that while judging the nature of apprehension which an accused can reasonably entertain in such circumstances requiring him to act on the spur of moment when he finds himself assaulted, by number of persons, it is difficult to judge the action of the accused from the cool atmosphere of the Court room. Such situations have to be judged in the 'light of what happens on the spur of moment on spot and keeping in view the normal course of human conduct as to how a person would react under such circumstances in a sudden manner with an instinct of self-preservation. Such situations have to be judged from the subjective point of view of the accused concerned who is confronted with such a situation on spot and cannot be subjected to any microscopic and pedantic security. The Supreme Court referred to the decisions, rendered in Mohd. Ramzani v. State of Delhi, 1980 Supp. SCC 215: AIR 1980 SC 134, and the following observations made speaking through Sarkaria, J. (Para 19 of AIR): The onus which rests on an accused person under Section 105, Evidence Act, to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged, beyond reasonable doubt. It is further well established that 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 in the heat of the moment carries his defence a 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. 17. Even if he in the heat of the moment carries his defence a 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. 17. In view of the above, taking the statements of the appellant into confidence, we find that the deceased being armed with a dao i.e. the weapon of assault, intercepted the appellant while he was proceeding towards his place of work and picked up an altercation with the appellant. It has also been found that the deceased, initially, attacked the appellant and this attack prompted the appellant to snatch away the dao from the possession of the deceased. As the deceased was armed with a dao and he made attempt to inflict injury, threatening that he would cut the appellant, the appellant, who was unarmed, had sufficient reason to apprehend that grievous hurt or death would be the consequence of assault, if committed by the deceased. Therefore, the act of giving dao blows, by the appellant in a spur of moment i.e. upon a sudden quarrel, is covered by the provision of Section 97 read with Section 100 of the Penal Code. 18. From the confessional statement as well as the statement made under Section 313, Cr. P.C. it is found that after giving lathi blows, to the deceased, the appellant had hit the head, hands and legs of the deceased and thereafter hacked his neck with a dao. The appellant explained the circumstances under which he inflicted the said injuries. His contention is that initially the deceased being armed with the dao had attacked him and after physically assaulting him in the head had threatened to cut him. This, according to the appellant provoked him to assault the deceased for his self defence. In view of the above, we find that the appellant had inflicted the injuries for his private defence. The fact remains that the appellant, ever after over powering the deceased inflicted dao blows on the neck, which caused the death. Hence, the question is whether he had exercised the right of private defence. 19. Certainly, the neck being a vital part of the body, it is the common knowledge of every person that injury caused on such vital part, with a sharp cutting weapon like dao, might cause fatal injury leading to the death of the person. Hence, the question is whether he had exercised the right of private defence. 19. Certainly, the neck being a vital part of the body, it is the common knowledge of every person that injury caused on such vital part, with a sharp cutting weapon like dao, might cause fatal injury leading to the death of the person. As the deceased had already fallen down and the dao was also snatched away, giving of blows on such vital part, indicates that the appellant had exceeded his right of private defence by causing death of the deceased. Now the question that arises is as to whether the culpable homicide committed by the appellant amounted to murder or not? 20. The Exception No. 2 of Section 300, provides that if the right of private defence exercised, exceeds the powers given to him by law and causes death without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence, then such culpable homicide will not amount to murder. Exception No. 4 of Section 300 provides that no culpable homicide is murder if the death is caused without pre-meditation in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acting in a cruel of unusual manner. 21. From the above discussed evidence on record, as well as the statements of the accused person, which remained unchallenged, it is found that the deceased, being armed with a dao, had picked up a sudden quarrel with the appellant, who was unarmed. At the relevant time the appellant was going to his place of work. It is also found that the deceased had threatened the appellant that he would be cut with the dao, in his hand. It is also noticed, from the statement of the appellant, that the deceased had hacked him on his hand with the knife and threatened to cut his legs. It is also found that the deceased had threatened the appellant that he would be cut with the dao, in his hand. It is also noticed, from the statement of the appellant, that the deceased had hacked him on his hand with the knife and threatened to cut his legs. From the above facts and circumstances, it is clearly found that the appellant, being provoked by the deceased after snatching away the dao from the appellant lost his cool and inflicted blows in a heat of passion upon a sudden fight As the appellant was proceeding towards his place of work, without being armed with any weapon, there is nothing, on record to show that he had any premeditation or intention to cause the death of the deceased. 22. As the appellant was attacked by deceased with a dao, in his head, and threatened to cut him, naturally, after snatching away the dao, the appellant also reacted and losing his cool inflicted the fatal blow on the neck. The nature and extent of reaction, in such a situation, may vary from man to man depending on the social background, education and the gravity of provocation. Considering the fact situation and the provocation given to the appellant, it was quite natural, on his part to react and assault the deceased. In the attending circumstances, as the deceased had threatened to cut the appellant, it was the possible apprehension of the appellant that if the deceased was not incapacitated, then the latter would either cause grievous hurt or death to him. Therefore, in the light of the above fact situation, the blow given by the appellant on the neck cannot be said to be an act done with undue advantage or in a cruel or unusual manner. That apart, as the deceased threatened to cut the appellant, the injury caused by the appellant cannot be said to be done not in good faith of private defence. The medical evidence reveals that the deceased sustained the cut injuries i.e. on the right wrist and the neck. The injury caused on the neck was the fatal injury. Hence, it is found that the appellant had inflicted only one fatal injury on vital part of the body. It is not the case that he had repeatedly assaulted the deceased. In his statement given under Section 313, Cr. The injury caused on the neck was the fatal injury. Hence, it is found that the appellant had inflicted only one fatal injury on vital part of the body. It is not the case that he had repeatedly assaulted the deceased. In his statement given under Section 313, Cr. P.C. the appellant stated that he had brandished the dao and that the same had hit the deceased. This statement shows that he did not intentionally inflict the blow on the neck. In his statement made under Section 164, Cr. P.C. he stated that the deceased had abused calling him a "dog" and after hitting his hand with a knife had cut his shirt and attempted to pull out his trouser. As revealed from the said statement, the appellant also, after hitting the deceased on his hand and leg hacked his neck. It is also found that the deceased had hit his hand with a knife. In view of the above facts and circumstances, though the appellant appears to have exceeded the power of private defence, it does not, transpire that there was any premeditation and intention to cause more harm than was necessary or that the act was done cruelly or in an unusual manner. The entire facts and circumstances reveal that the act was done in a heat of passion upon a sudden fight. Hence, the act done by the appellant will also fall under the exception No. 4 of Section 300, IPC. As the act was done, without premeditation, upon a sudden fight and in a heat of passion, the Exception 4 of Section 300 would be applicable. Therefore, the offence committed by the appellant is not culpable homicide amounting to murder and as such, the same is not covered by Section 300, IPC. Rather, it was a case of culpable homicide not amounting to murder. 23. Section 304, IPC provides the punishment for culpable homicide not amounting to murder. Section 304 has two parts. Therefore, the offence committed by the appellant is not culpable homicide amounting to murder and as such, the same is not covered by Section 300, IPC. Rather, it was a case of culpable homicide not amounting to murder. 23. Section 304, IPC provides the punishment for culpable homicide not amounting to murder. Section 304 has two parts. The first part provides the punishment, if the act, by which the death is caused, is done with intention of causing death or of causing such bodily injury which is likely to cause death; and the second part provides the punishment if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause the death. In ordinary course, it is within the general knowledge of every person of sound mind that any injury inflicted on the neck with a sharp cutting weapon i.e. dao is likely to cause the death of a person. Therefore, it leads to the conclusion that the appellant had the knowledge that the injury caused on the neck with a dao was likely to cause death. Though the appellant might not had the intention to cause the death of the deceased, the nature of the injury inflicted on the neck with a dao, indicates that he had intention to cause the said injury, which was likely to cause death. Therefore, the offence committed by the appellant will fall under Section 304, Part-I of IPC. 24. In view of the above, we have no hesitation in holding that the conviction and sentence, recorded by the learned trial Court under Section 302, IPC, cannot be maintained and the same is liable to be modified. Accordingly, we modify the conviction to one under Section 304, Part I, IPC. Considering the facts and circumstances, in which the alleged offence was committed and the period already undergone by the appellant (he is in jail from 9.12.2002), we modify his sentence to the period already undergone. However, we decline to interfere with the sentence with regard to fine. 25. For the sake of brevity and in the light of our 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. avoiding detailed discussions, we make the following directions : 1. However, we decline to interfere with the sentence with regard to fine. 25. For the sake of brevity and in the light of our 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. avoiding detailed discussions, we make the following directions : 1. For the purpose of rehabilitation of the victim/dependant(s), as an interim measure, an amount of Rs. 50,000/- be deposited by the State Government with the District Legal Services Authority of Jorhat 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 dependant(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 dependant(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. 3. For the purpose of providing financial assistance towards rehabilitation of the victim or his/her dependants, in appropriate cases, and for proper implementation of the scheme, as provided by Section 357A, Cr. P.C. it is necessary to ascertain the dependency factor and the financial status of such victim, his/her dependants, as the case may be, and also of the accused person(s). Therefore, we direct that the Judicial Officers, working under the jurisdiction of this Court, during the course of trial, shall ascertain (i) the financial status of the victim or his/her dependant(s), if any, (ii) whether such persons need rehabilitation, as the case may be and also the financial status of the accused person(s). The said findings of the enquiry shall be reflected in the judgment. Registry shall furnish copy of this judgment to all the Judicial Officers under the jurisdiction of this Court. 26. The said findings of the enquiry shall be reflected in the judgment. Registry shall furnish copy of this judgment to all the Judicial Officers under the jurisdiction of this Court. 26. With the above modifications in respect of the conviction and sentence and the directions as indicated above, this appeal is partly allowed. Return the LCRs. 27. Let a copy of this judgment and order be furnished to Mr. Z. Kamar, learned Public Prosecutor, and the Chief Secretary to the Government of Assam, for doing the needful. We record our appreciation for the services, rendered by Smti Anupama Devi, as amicus curiae and direct that an amount of Rs. 3,500/- be paid to her as remuneration, by the State Legal Services Authority.