Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 957 (GAU)

Pronoy Mech @ Bhaya v. State of Assam

2012-08-09

A.K.GOEL, B.D.AGARWAL

body2012
JUDGMENT B.D. Agarwal, J. 1. The appellant is the first cousin of the deceased. The appellant has been convicted under Section 302 of the Indian Penal Code for committing murder of his cousin vide impugned judgment dated 30.11.2005, passed by the learned Additional Sessions Judge, Sivasagar in Sessions Case No. 68 (S-S) of 2004. After convicting the accused for the offence of murder, he has been sentenced to undergo imprisonment for life and also to pay fine of Rs. 1 lakh (Rupees One Lakh) with default stipulation of further rigorous imprisonment for 5 years. Being aggrieved with the conviction and sentence, the accused has preferred this appeal from jail. We have heard Ms. B Gogoi, learned Amicus-Curiae and Mr. D Das, learned Additional Public Prosecutor for the State. We have also gone through the impugned judgment and the evidence tendered by the prosecution in the trial court. The defence was of total denial and no evidence in defence was given. 2. The prosecution story is that both the accused and the deceased used to live adjacently. On 15.2.2004 at about 1 pm, while the deceased was taking bath near a tubewell in front of his house, the accused suddenly came with a dao and struck the deceased on his head and neck. Hearing the outcry of the deceased, his wife and other family members and near relatives rushed to the place of occurrence and took the deceased to the hospital in an injured condition. After two days, the deceased succumbed to the injuries. However, FIR was lodged on the very next day of the incident by the wife of the deceased. On the date of incident, the deceased was surviving and, as such, a case under section 326 of the IPC was registered being Sivasagar P.S. Case No. 10 of 2004. However, after the trial, the accused was charge sheeted under section 302 IPC and after trial he has been invited accordingly. 3. To establish the offence of murder, prosecution examined altogether nine witnesses. PWs-7, 8 and 9 are the police officers who had taken part in the investigation at different stages. All the remaining witnesses appear to be related to the accused and the deceased. 4. PW-1 is the wife of the deceased. 3. To establish the offence of murder, prosecution examined altogether nine witnesses. PWs-7, 8 and 9 are the police officers who had taken part in the investigation at different stages. All the remaining witnesses appear to be related to the accused and the deceased. 4. PW-1 is the wife of the deceased. She has corroborated the story in the FIR by deposing that while her husband was taking bath near a tubewell, she heard the shouting of her husband and when she came out of the house, she noticed the appellant Pronoy Mech running away from near the tubewell with a dao. PW-1 has further deposed that reaching the place of occurrence, she noticed her husband with cut wounds on the neck and head and on being enquired, he disclosed that the appellant Pronoy had injured him. The witness had further deposed that after arrest of the accused, a dao was seized by the police officer on being produced by the accused and the seizure was made under Exhibit-2. This witness has further stated in the cross-examination that her husband is survived by herself, one minor daughter and one minor son. 5. In the cross-examination, a plea was taken that the accused was suffering from mental sickness since about 2 years and that the deceased used to tease the appellant by calling him 'paagal' (insane person). 6. PW-2 is the wife of the appellant's cousin. This witness has also deposed that she is also living in the same locality and at the relevant time she was sitting in the verandah. This witness has further deposed that hearing the outcry of the wife of the deceased, she rushed to the place of occurrence and saw the deceased in an injured condition and lying near a tubewell PW-2 has further deposed that the deceased was assaulted by accused from behind. In this way, PW-2 is claiming herself to be an eye witness which is not believable in as much as from the sketch map of the place of occurrence, it appears that the house of the witness is not very close to the place of occurrence. At best, she might have been reported by the wife of the deceased about the complicity of the appellant. In cross-examination, PW-2 had denied that the appellant was suffering from any brain disorder or that he was regularly insulted by the deceased. 7. At best, she might have been reported by the wife of the deceased about the complicity of the appellant. In cross-examination, PW-2 had denied that the appellant was suffering from any brain disorder or that he was regularly insulted by the deceased. 7. PW-3 is the cousin of the deceased as well as that of the appellant. His testimony is confined to the seizure of the dao on being produced by the accused from his house. This witness is also denying about any mental abnormality of the appellant. PW-4 is the sister-in-law of the appellant She also did not see the occurrence and as such, her testimony is a hearsay one. 8. PW-5 is the prime witness of the incident. This witness has deposed that on the relevant day, at about 1 pm, she saw the appellant going towards the house of the deceased with a dao. PW-5 has further deposed that within a short time, she heard the cry of the deceased and looking in the direction of the tubewell, she saw the accused Pronoy running towards his house with a dao. In this way, PW-5 had noticed the accused going with a dao and running away with the same weapon from a nearby tubewell where the incident had taken place. The witness has further deposed that when she reached near the tubewell, the deceased told him that he was assaulted by the appellant. PW-5 has further reiterated that the deceased was capable to speak. In view of the aforesaid depositions, the following incriminating circumstances appear to have been proved against the appellant:- (i) The appellant is the immediate neighbour of the deceased. (ii) The appellant was seen going to the house of the deceased with a dao. (iii) The appellant was seen running away with the same weapon from the place of occurrence. (iv) Dying statement of the deceased before his wife (PW-1) and also to PW-5. 10. In our considered opinion, all the aforesaid circumstances have formed a complete chain consistent with the hypothesis that the offence of culpable homicide was committed by appellant and none else. 11. The learned Amicus-Curiae for the appellant submitted that since the appellant was suffering from mental disorder, he can be given the benefit of Section 84 of the IPC. 10. In our considered opinion, all the aforesaid circumstances have formed a complete chain consistent with the hypothesis that the offence of culpable homicide was committed by appellant and none else. 11. The learned Amicus-Curiae for the appellant submitted that since the appellant was suffering from mental disorder, he can be given the benefit of Section 84 of the IPC. We are not persuaded with this submission since there is no evidence in the record that the appellant was suffering from legal insanity. Not a single document was produced by the accused in the trial court to establish that he was suffering from mental sickness. On the other hand, prosecution witnesses have denied this suggestion in the cross-examination. 12. Be that as it may, prosecution is also silent to establish any motive for the crime. In the case of Dhananjay Chaterjee vs. State of West Bengal, 1994 (2) SCC 220 , the Hon'ble Supreme Court has held that in a case based on circumstantial evidence, the existence of motive assumes significance though the absence of motive does not necessarily discredit the prosecution case. In the case at hand, the deceased was none else but the first cousin of the accused. The wife of the deceased as well as PW-2 have categorically stated that the deceased did not have any quarrel or dispute with file accused. 13. It is said that no offence is committed without any cause. However, both the investigating agency as well as prosecution failed to establish any motive for the appellant for killing his own cousin although they were living adjacently. On the other hand, the appellant took a consistent defence during cross examination of the witnesses that the accused was regularly insulted by the deceased by calling him 'paagal'. It is true that no evidence in this regard was also produced in the trial court by the accused but we cannot be oblivious to the fact that the accused contested the case from Jail with the help of a State defence counsel. In other words, the appellant was handicapped in proving the alibi. 13.1 Under Exception 1 to Section 300 IPC if an offence of culpable homicide is committed whilst the accused is deprived of his power of self control due to grave and sudden provocation, the culpable homicide would not amount to murder. In other words, the appellant was handicapped in proving the alibi. 13.1 Under Exception 1 to Section 300 IPC if an offence of culpable homicide is committed whilst the accused is deprived of his power of self control due to grave and sudden provocation, the culpable homicide would not amount to murder. Ordinarily, the provocation should come from the deceased soon before he or she is assaulted and the act of the assailant should be in the nature of retaliation. However, in some cases, provocation may have a longer effect and resultantly the retaliation may also come lately. 14. There is no universal rule as to what would amount to grave provocation and what period should be considered sufficient for cooling down the provocation. It all depends on the facts of every case. In the case of K.M. Nanavati vs. State of Maharashtra, AIR 1962 SC 605 ), the Apex Court has decided the test of grave and sudden provocation in the following words:- (1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to S.300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence, (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation. 15. In the case of Raja Ram vs. State of Maharashtra AIR 1982 SC 31 ) it has been held by the Apex Court that grave and sudden provocation is a mixed question of law and facts and it is incumbent upon the High Court to examine that defence and record its own finding. 16. 15. In the case of Raja Ram vs. State of Maharashtra AIR 1982 SC 31 ) it has been held by the Apex Court that grave and sudden provocation is a mixed question of law and facts and it is incumbent upon the High Court to examine that defence and record its own finding. 16. In the case of Tilak Rajowar vs. State of Assam; reported in 1986 (2) GLR 349, a beggar committed murder of co-beggar for not sharing his food stuff and in retaliation the accused dealt repeated dao blows upon the deceased and also kept the dead body hidden under stubbles of paddy in the courtyard. Considering the society from which the accused held it was considered to be sufficient provocation from the deceased and the offence was reduced to culpable homicide not amounting to murder. 17. In the case at hand, the accused has taken a plea that he was consistently abused, humiliated and insulted by none else but his own cousin. We have consulted the case diary and find that the same plea was also taken before the I.O. In the said statement the accused made it clear that he was teased and insulted by the deceased prompting him to retaliate. However, the prosecution took no pain to rule out that there was no provocation from the deceased. In the case of Tilok Rajowar (supra), the Gauhati High Court has held that the burden of proving absence of provocation is on the prosecution. We are also of the same view. In our considered opinion also the prosecution is not absolved from its duty to prove the offence of murder only by establishing the ingredients of 'murder' defined under various Clauses of Section 300 IPC but the burden extents to prove that such offence also does not attract anyone of the five Exceptions integrated in the same provision of law. Considering the entire gamut of the case, we are of the opinion that the offence of culpable homicide must have been committed by the accused under provocation. Accordingly, we hold that the offence is covered by Exception 1 to Section 300 of the IPC. 18. In the result, the appeal stands partly allowed. The conviction of the appellant is converted under Section 304 Part-I of the IPC. Resultantly, the sentence is also reduced to 10(ten) years rigorous imprisonment. Accordingly, we hold that the offence is covered by Exception 1 to Section 300 of the IPC. 18. In the result, the appeal stands partly allowed. The conviction of the appellant is converted under Section 304 Part-I of the IPC. Resultantly, the sentence is also reduced to 10(ten) years rigorous imprisonment. Since the appellant is a poor person who could not engage any counsel either in the trial court or in the High Court, we are of the opinion that imposition of fine of Rs. 1 lakh is grossly disproportionate. Accordingly, fine amount is also reduced to Rs. 5000/- (Five Thousand). In default of payment of fine, the accused shall undergo further rigorous imprisonment for one year. 19. Return the LCR with a copy of this judgment. On receipt of the judgment, the learned Sessions Judge shall issue modified custody warrant in terms of the sentence awarded to the appellant as mentioned in the preceding paragraph. 20. The learned Amicus Curie is entitled to one day's hearing fee from the Legal Services Authority. In view of the provisions prescribed by Section 357-A Cr. P.C., the victim or his/ her dependants are entitled to get compensation for rehabilitation in appropriate cases. In view of the law laid down in the case of Jalilur Rahman vs. State of Assam, reported in 2012(1) GLT 238, with regard the victim compensation, as provided by Section 357-A Cr. P.C., we make the following directions: (i) As an interim measure, an amount of Rs. 1,00,000/- shall be deposited by the State Government with the District Legal Services Authority of Sivasagar 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 if such dependent(s) or legal representative(s) need any rehabilitation. (ii) 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. (ii) 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. 1,00,000/- without delay, in favour of the State Government.